USA Trends and Developments Contributed by: Matthew K. Edling, Sher Edling
State of Play: Forever Chemicals and Drinking Water When toxic chemicals contaminate drinking water supplies, public water providers are the first line of defence. They are responsible for delivering drink- ing water to their communities that meets all state and federal standards established to protect human health and the environment from the range of threats posed by those contaminants. Sometimes, they must move faster than the regulators in order to remove or reduce emerging contaminants that have not yet been regulated. The financial burdens associated with providing that first line of defence are substantial, and many pub- lic entities turn to the courts to hold accountable the corporations whose past conduct can be tied to the contamination. This overview looks at two types of contaminants, PFAS and 1,4-dioxane, some of the cases that have been brought to address them, and a few regulatory developments at the federal level. The persistence of PFAS, and PFAS litigation In summer 2025, thousands of public water sys- tems across the United States began receiving the first award instalments from the landmark, USD10.5– USD12.5 billion settlement with the 3M Company over litigation concerning PFAS contamination. By the autumn, those same public entities were receiv- ing awards under the parallel USD1.85 billion settle- ment with DuPont de Nemours, Inc, The Chemours Company and Corteva, Inc. There are also pending settlements with Tyco Fire Products (USD700 million) and BASF Corporation (USD312.5 million). Combined, these settlements represent the largest in history for drinking water contamination. They were resolved through the Aqueous Film-Forming Foam (AFFF) Products Liability Litigation (MDL 2873) over- seen by the United States District Court for District of South Carolina, Judge Richard M. Gergel presiding. PFAS is shorthand for per- and polyfluoroalkyl sub- stances. They are called “forever chemicals” because they do not break down naturally; they persist and migrate through the environment and are associated with numerous human health effects, including cancer. According to the MDL web site maintained by the US District Court in South Carolina:
“Plaintiffs generally allege that aqueous film-forming foams (AFFFs) containing perfluorooctanoic acid (PFOA) and/or perfluorooctane sulfonate (PFOS), two types of PFAS, contaminated groundwater near vari- ous military bases, airports, and other industrial sites where AFFFs were used to extinguish liquid fuel fires. The plaintiffs allege that they were caused personal injury, a need for medical monitoring, property dam- age or other economic losses.” The public water systems are just one group of plain- tiffs participating in the MDL. There remain at least three more plaintiff classes: • personal injury claims; • property damage claims; and • claims brought by attorneys general of more than 30 states. All allege, at least in part, manufacturers’ failure to warn of the harm associated with PFAS in spite of their superior knowledge. The first bellwether for personal injury cases was scheduled for October 2025 but has been postponed to allow more unfiled cases to join the MDL. The MDL moving through US District Court in South Carolina comprises only part of the PFAS litigation picture. A few things to consider and watch now fol- low. • There are thousands more PFAS compounds beyond PFOA and PFOS. Some are already regu- lated, many are under investigation, and detections for some are just emerging and will continue to do so in the years ahead. It is unclear whether existing treatment technology designed for the removal of PFOA and PFOS will be sufficient for any/all addi- tional PFAS compounds that need to be reduced or removed to ensure public health and safety. But it is clear that contamination from these additional compounds is extensive. It remains to be seen just how expensive treatment will be as investigations continue. • Public entities across the country have also initiat- ed litigation against the PFAS manufacturers men- tioned here, as well as other corporate defendants, who are responsible for PFAS contamination in the
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