It's not surprising, Gilezan said, that the first target of the EPA is the potential for drinking water contamination.
"The most prevalent concern is that PFAS is in the water supply," the attorney said. "Either from groundwater going through wells or municipal wells, or through surface waters."
And while the EPA is waiting for the MCLs to be finalized by the end of the year, the agency is looking at using the Comprehensive Environmental Response, Compensation, and Liability Act—commonly known as CERCLA or the Superfund program—as one of its main weapons in attacking PFAS cleanup.
Gilezan said the EPA already has come out with a screening level that would be used to investigate levels of PFAS at current Superfund sites.
"It is a ready-made model at least for the agency to take the first important step, which is to survey just to what extent PFAS is in the soil and the groundwater," he said
The legal implications right now are very directly felt by parties, some of whom have been involved at cleanup sites, particularly large ones, where the remedy really isn't eliminating every last molecule of the original contaminants of concern, but rather containing them in a protective manner, according to Gilezan.
"These are perpetual projects under which there is a comprehensive agreement between the responsible party and either federal or state government," he said. "As part of that there are provisions that enables the agency with jurisdiction to act upon new information or new regulations, even if it has no bearing on the original chemical of concern, which really none of these sites do, because PFAS was not known until a few years ago as a potential contaminant of concern."
It would then be tough under the Superfund statute for a party found liable at a present site to argue it shouldn't be responsible for PFAS contamination, because the act uses "status liability," rather than traditional causation—such as negligence or willful acts—as the basis for placing blame.
"It would be difficult for those parties to essentially prove the negative," Gilezan said, "that they don't have any bearings to these chemicals, particularly in sites that go back for decades of unknown use."
Lawsuits that are getting the most headlines, Stewart said, are the cases being filed by state attorneys general that typically target the largest PFAS manufacturers. "Early on there was a settlement between 3M and Minnesota," he said. "It prompted other states to pursue cases, and it just kind of gained momentum after the first few got filed, and the momentum has grown."
There also is a difference in the expectation of the liability of the supplier of the material, as opposed to those who use it to make other products, according to Stewart.
"When you look at lawsuits filed against manufacturers versus users, plaintiffs have more to say and can try to argue with against manufacturers for the basic reason they are synthesizing this from scratch and in many times invented the chemicals," he said.
Users, on the other hand, can say they are buying the material on the open market and can't potentially have the level of knowledge that a material supplier would have.
"But once you get into the regulatory scheme, CERCLA or state counterparts, knowledge really is immaterial, and status liability kicks in," he said. "If you are a manufacturer who operated a site and there was a lot of contamination around it, you're going to be in the same boat as the user who had no idea what was in these products that has contamination around their site."