We have written numerous times over the past several years regarding the risks posed to current and historical corporate users of PFAS (whether knowingly or unknowingly), even as the stagelight focused most brightly for some time on risks from federal regulatory actions with respect PFAS. A PFAS lawsuit against industrial users of PFAS filed this month, though, provides further support for the notion that the greatest risks to corporations from PFAS lies in lawsuits likely to be filed against them in coming years for environmental pollution and personal injury. The City of Savannah, Georgia took legal action against numerous companies for contamination of its water systems. While some of the defendants include PFAS manufacturers, several defendants are alleged to be prior users of PFAS that discharged PFAS-contaminated effluent into waterways. This case should be at the forefront of corporate concern for PFAS risks as risk assessment and diligence programs are conducted in earnest.

PFAS Lawsuit Against Industrial Users

The lawsuit was filed by the City of Savannah against several PFAS manufacturers, as well as PFAS users, for discharge of PFAS into local waterways. Notably, the defendants from the “PFAS Users” group include coating resins, polymerization, paper, packaging, fabric coating, metal finishing, surfactants, textiles, roofing, insulation, and radiator manufacturing companies, among others. The defendants are alleged to have caused or contributed to the discharge of PFAS chemicals found in the city’s drinking water. Savannah is seeking compensatory damages from the defendants to pay for filtration and associated remediation technology. Savannah is also seeking punitive damages in the complaint.

Significance of Lawsuit for All Manufacturers

The lawsuit is notable for several reasons, one if which is that the defendants may not have used PFAS intentionally in its products or processes, yet the companies may still be liable for pollution damages from an unintentional and perhaps unknowing use of PFAS. A common refrain from companies assessing PFAS risks is that “we do not and did not use PFAS, so these risks do not apply to us.” The Savannah lawsuit shows otherwise, as even unknowing use of PFAS (or PFAS that gets into manufacturing processes as a contaminant) may be liable for class action lawsuit damages.

Further, while discovery has not yet begun, it is likely that many of the named defendants were historically permitted to discharge effluent into the waterways now alleged to be contaminated with PFAS. Of course, prior to the past couple of years, no regulatory entity set PFAS effluent discharge levels, nor was testing for PFAS prior to discharge required in many circumstances. Nevertheless, despite the legality of the discharges under permitting strictures, the companies nevertheless find themselves embroiled in PFAS litigation for pollution.

The lawsuit highlights the risks that we have predicted for several years to companies that have not manufactured PFAS, but rather have used PFAS in their manufacturing process or have used chemical mixtures that may have been contaminated with PFAS. The historical nature of such uses will not shield companies from litigation, and it is critical that manufacturing and industrial companies examine current and historical uses, assess legacy insurance policies, and conduct a full risk assessment to understand the business disruption potential that PFAS might have on their company.