On July 20, 2022, the state of Wisconsin filed a lawsuit against 18 manufacturing companies in which the state seeks to recover “billions of dollars” that it says that it has and will spend on remediating PFAS issues in the state. While the Wisconsin PFAS lawsuit targets PFAS manufacturers and AFFF manufacturers that utilized PFAS in their products, which several states have done, the lawsuit is nevertheless notable due to the scope of damages alleged in the case. Downstream commerce companies that used PFAS in non-AFFF applications in the state of Wisconsin must pay attention to this case, as it is certainly conceivable that in the future, they, too, may find themselves the targets in similar lawsuits.

Wisconsin PFAS Lawsuit

The Wisconsin PFAS lawsuit was filed against 18 companies alleging that the companies manufactured either PFAS or PFAS-containing AFFF, which ultimately led to pollution of Wisconsin’s groundwater, surface water, and biota (animal species and plant life in the state). The state brings several claims again each of the defendants, including (1) public nuisance (2) private nuisance (3) trespass (4) negligence (5) strict liability for failure to warn and (6) strict liability for design defect. In short, the lawsuit alleges that the defendants either manufactured PFAS and knew of the hazards of PFAS many years ago, but did not disclose such hazards, or that the defendants manufactured AFFF that contained PFAS and either knew or should have known of the hazards that the product posed to the state’s environment.

Wisconsin seeks damages for a host of specific things, including costs of remediation, costs to install wells and filtration systems, costs for early warning detection technology, costs for community outreach and education resources, and loss of tax revenue claims. In addition, the state brought a claim for punitive damages in which is seeks significant damages for the alleged bad acts of the defendants.

Implications To Businesses

It is of the utmost importance for businesses along the whole supply chain to evaluate their PFAS risk. Public health and environmental groups urge legislators to regulate these compounds. One major point of contention among members of various industries is whether to regulate PFAS as a class or as individual compounds.  While each PFAS compound has a unique chemical makeup and impacts the environment and the human body in different ways, some groups argue PFAS should be regulated together as a class because they interact with each other in the body, thereby resulting in a collective impact. Other groups argue that the individual compounds are too diverse and that regulating them as a class would be over restrictive for some chemicals and not restrictive enough for others.

Companies should remain informed so they do not get caught off guard. Regulators at both the state and federal level are setting drinking water standards and notice requirements of varying stringency, and states are increasingly passing PFAS product bills that differ in scope. For any manufacturers, especially those who sell goods interstate, it is important to understand how those various standards will impact them, whether PFAS is regulated as individual compounds or as a class. Conducting regular self-audits for possible exposure to PFAS risk and potential regulatory violations can result in long term savings for companies and should be commonplace in their own risk assessment.