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Water Implications and Likely Legal Challenges

Are current punitive damages caps sufficient to deter bad actors from contaminating the environment? The recent train derailment in East Palestine, Ohio, demonstrates that Ohio’s punitive damages cap may be a drop in the bucket for large corporations. Nearly every state has its own cap on punitive damages, which is usually tied to a defendant’s liability for compensatory damages. These statutory caps may defeat the purpose behind punitive damages: punishment and deterrence. On February 3, 2023, a Norfolk Southern train carrying chemicals and combustible materials derailed and caught fire in East Palestine, Ohio. [i] The train was carrying vinyl chloride, a “toxic flammable gas.” [ii] Vinyl chloride is used to make PVC and is produced in tobacco smoke; it is also associated with an increased risk of liver cancer. [iii] To limit the chance of explosion and shrapnel, authorities authorized a controlled release of the chemicals on the train. [iv] All residents were evacuated within the one-by-two mile area surrounding the derailment. [v] Latest reports indicate that the derailment was caused by a wheel bearing overheating to above two hundred and fifty degrees Fahrenheit above ambient temperature. [vi] Norfolk Southern’s safety guidelines do not require train operators to “take action until wheel bearings reach one hundred seventy degrees Fahrenheit above ambient temperature.” [vii] The temperature jumped nearly one hundred and fifty degrees between defect detectors along the track. [viii] Upon hearing the alarm, the crew attempted to bring the train to a stop, but the wheel bearing failed. [ix] The National Transportation Safety Board indicated that while more detectors could have prevented the derailment, the crew followed safety regulations. [x] Since the derailment, however, there have been major concerns regarding the safety of East Palestine’s air and water as some residents have experienced headaches and rashes. [xi] On February 15 th the Governor of Ohio, Mike DeWine, informed residents that water was safe to drink and that the Environmental Protection Agency (“EPA”) found no contaminants in the water. [xii] However, out of an abundance of caution, EPA will continue to independently test water once a week. [xiii] Many local residents are skeptical of these tests and have requested that private contractors also test their water because they continue to smell chemicals and experience headaches and rashes. [xiv] Following the derailment, the Ohio Department of Natural Resources indicated that at least forty-three thousand fish have died in the area. [xv] Norfolk Southern describes itself as one of the nation’s premier transportation companies, operating 35,316 miles of track in twenty-two states and transporting industrial products across the country. [xvi] On March 1, 2023, Norfolk was worth approximately fifty-one billion dollars . [xvii] However, the company’s worth has dropped thirty percent in 2023, and is currently worth only forty-five billion dollars. [xviii] EPA has ordered Norfolk Southern to clean up contaminated soil and water in the area, and if Norfolk Southern fails to do so, EPA will fine it seventy thousand dollars a day . [xix] Regardless, Norfolk Southern may still be liable to the residents of the area for adverse impacts on their current and future health and lowered property values. At this time, at least eight class action lawsuits have been filed, requesting a total of five million dollars in damages. [xx] One complaint alleges that in one week, Norfolk Southern leaked more vinyl chloride than all other industrial emitters in a year. [xxi] That complaint also alleges that Norfolk Southern acted recklessly when it lit chemicals on fire instead of taking other measures to contain the chemical leakage, because when vinyl chloride is lit, it becomes phosgene gas, a chemical agent used in World War I. [xxii] Phosgene gas was responsible for the deaths of eighty-five thousand people in World War I. [xxiii] It can cause respiratory irritation, and chronic exposure can result in inflammation of the lungs. [xxiv] The plaintiffs further allege that Norfolk Southern’s general philosophy about its infrastructure is to “run it until it breaks,” and that Norfolk Southern “acted with willful and wanton conduct.” [xxv] Plaintiffs request both compensatory and punitive damages. [xxvi] State law governs punitive damage awards, but grossly excessive or arbitrary damage awards violate federal constitutional due process rights. [xxvii] In Ohio , punitive damages are available when “the actions or omissions of that defendant demonstrate malice or aggravated or egregious fraud.” [xxviii] In this case, in order to obtain punitive damages, the plaintiffs will need to demonstrate that Norfolk Southern acted with malice either by failing to maintain the train and train track, or by choosing to burn the chemicals as opposed to taking other steps to clean up the spill. If the case goes to trial, the jury will need to make this determination. This will be a difficult task. In Ohio , courts define malice in civil cases as “a state of mind in which conduct toward another is characterized by hatred, ill will, a spirit of revenge or retaliation, or . . . malice implied from wrongful acts purposely done without reason or excuse to the injury of another.” [xxix] More facts may emerge in the next several months about whether Norfolk Southern acted with or without malice. Under the current Ohio statute, punitive damages may not be available as there appears to be a justification for the burning of chemicals after the derailment, namely, to prevent explosions and shrapnel. In comparison, the Colorado standard for punitive damages is “fraud, malice, or willful and wanton conduct,” with willful and wanton conduct defined as “conduct purposefully committed which the actor must have realized as dangerous, done heedlessly and recklessly, without regard to consequences, or of the rights and safety of others, particularly the plaintiff.” [xxx] Because the Colorado standard includes “willful and wanton conduct,” it is broader than Ohio’s malice only standard. Therefore, had the train derailment occurred in Colorado, there would be a stronger case for punitive damages. Following the train derailment, policymakers in Ohio should revisit their state’s legal standard for punitive damages. Malice is a difficult standard for any plaintiff to prove. Expanding the scope of punitive damages to include willful and wanton conduct could increase the deterrent effect on tortfeasors. Given the impacts on individuals within the community, there is likely enough political will to make substantial statutory change. Punitive damages are meant to deter bad actors. [xxxi] In the 1980s, however, many commentors were concerned about the possibility of runaway punitive damage awards. [xxxii] Many states have placed caps on punitive damages to limit unpredictable punitive damage jury awards. After the Exxon Valdez spill in Alaska, the Supreme Court established a one-to-one ratio of compensatory to punitive damages in the context of maritime law. [xxxiii] As relevant here, the Court in Exxon reviewed statistical evidence of punitive damages awards and determined that runaway damage awards did not pose a significant problem, as most punitive damage awards were less than the compensatory damages awards granted. [xxxiv] In Ohio, however, punitive damages are capped at twice the compensatory damages. [xxxv] And in Colorado, punitive damages are capped at a one-to-one ratio unless the defendant repeated the behavior in a willful and wanton manner or acted willfully and wantonly in further aggravating existing damages in the matter, in which case Colorado courts may award up to three times the sum of compensatory damages. [xxxvi] If the court awards the Ohio plaintiffs the five million dollars they have requested, the maximum punitive damages they could receive is ten million dollars. Given Norfolk Southern is worth forty-five billion dollars, an order to pay ten million dollars in punitive damages would hardly deter future, similar conduct. Because these statutory damages caps were passed during the era of tort reform, and corporation profits continue to rise, current caps on statutory damages are outdated. In Exxon , the Court found there was never an issue concerning large punitive damage awards except in outlier cases. [xxxvii] If a corporation acted with truly reprehensible conduct towards the public, then it will not be sufficiently deterred if punitive and compensatory damages are merely a drop in the bucket in comparison to the total value of the corporation. Corporations will argue that the threat of unlimited punitive damages will hurt the economy, chill business, and limit business risk, thereby limiting revenue generation. They may argue that punitive damages awards are unfair because they are so unpredictable. However, reprehensible conduct is not the type of business risk policymakers should encourage. Additionally, the Court in Exxon established that the threat of outlier punitive awards was not a real risk. If state policymakers are hesitant to eliminate all caps on punitive damages, perhaps they can start with eliminating punitive damages caps only on common carriers. In Ohio , a corporation is defined as a common carrier if it operates a “railroad owned by a municipal corporation of the state.” [xxxviii] Additionally, federal law assigns common carrier obligations to rail carriers. [xxxix] Norfolk Southern qualifies as a common carrier in Ohio. Given that common carriers already owe a higher duty of care to the public, if their conduct falls so far as to qualify as willful and wanton, higher punitive damages should be warranted. Common carriers are often required to transport dangerous materials and have the potential to cause extensive damage to human health and the environment. Considering the tragedy in East Palestine, policymakers should expand the scope of liability for punitive damages. There are current bipartisan efforts to ensure that Norfolk Southern does more to help recovery in the community. [xl] Current state laws are insufficient to deter future wrongful conduct from Norfolk Southern or other railroad companies. Less than one month after the trail derailment in Ohio, a train carrying propane derailed in Florida . [xli] In March, additional Norfolk Southern derailments occurred in Springfield, Ohio and in Ayer, Massachusetts . [xlii] Increasing the scope of liability for common carriers is an additional tool to ensure that proper safety measures are taken to limit the risk that future train derailments pose, not just to human health, but to the environment. Sources [i] Christine Hauser, After the Ohio Train Derailment: Evacuations, Toxic Chemical and Water Worries , N.Y. Times (Mar. 1, 2023) https://www.nytimes.com/article/ohio-train-derailment.html?auth=login-google1tap&login=google1tap . [ii] Id. [iii] Vinyl Chloride , Nat’l Cancer Inst., https://www.cancer.gov/about-cancer/causes-prevention/risk/substances/vinyl-chloride (Nov. 3, 2022). [iv] Dennis Romero and Marlene Lenthang, Controlled Chemical Release Scheduled to Prevent Explosion in Wake of Ohio Train Derailment , NBC News (Feb. 5, 2023), https://www.nbcnews.com/news/us-news/explosion-possible-wake-ohio-train-derailment-involving-hazardous-mate-rcna69243 . [v] Id. [vi] Becky Sullivan, Here’s the Most Thorough Explanation Yet for the Train Derailment in East Palestine , NPR News (Feb. 23, 2023) https://www.npr.org/2023/02/23/1158972561/east-palestine-train-derailment-ntsb-preliminary-report-wheel-bearing#:~:text=NTSB%3A%20Overheated%20wheel%20bearing%20led%20to%20Ohio%20train%20derailment%20%3A%20NPR&text=NTSB%3A%20Overheated%20wheel%20bearing%20led%20to%20Ohio%20train%20derailment%20A,prevent%20the%20derailment%2C%20officials%20said . [vii] Id. [viii] Id. [ix] Id. [x] Id. [xi] Id. [xii] East Palestine Water Quality Update , Mike DeWine, Governor of Ohio (Feb. 15, 2023), https://governor.ohio.gov/media/news-and-media/east-palestine-water-quality-update-2152023 . [xiii] East Palestine Update - 2/22/23 , Mike DeWine, Governor of Ohio (Feb. 23, 2023), https://governor.ohio.gov/media/news-and-media/east-palestine-update-022223 . [xiv] Emily Cochrane, Many in East Palestine, Skeptical of Official Tests, Seek Out Their Own , N.Y. Times (Feb. 19, 2023), https://www.nytimes.com/2023/02/19/us/politics/east-palestine-toxic-chemicals-epa.html . [xv] Drew Scofield, ODNR Update on East Palestine: More Than 43,000 Fish Died in Train Derailment , News 5 Cleveland (Feb. 23, 2023), https://www.news5cleveland.com/news/east-palestine-train-derailment/odnr-update-on-east-palestine-tens-of-thousands-of-fish-have-died-since-train-derailment . [xvi] Corporate Profile , Norfolk Southern, http://www.nscorp.com/content/nscorp/en/about-ns/corporate-profile.html (last visited Mar. 1, 2023). [xvii] Norfolk Southern Corporation , Stock Analysis, https://stockanalysis.com/stocks/nsc/market-cap/ (Last visited Mar. 1, 2023). [xviii] Id. [xix] Kris Maher, Ohio Train Derailment: EPA Orders Norfolk Southern to Clean Up Site , The Wall St. J. (Feb. 23, 2023) https://www.wsj.com/articles/epa-orders-norfolk-southern-to-clean-up-ohio-train-derailment-site-ad6591d5 . [xx] Jennifer Edwards Baker, Eight Lawsuits Filed Against Norfolk Southern Over Train Derailment, ‘Chemical Burn’ , Fox 19 Now (Feb. 17, 2023) https://www.fox19.com/2023/02/17/eight-lawsuits-filed-against-norfolk-southern-over-train-derailment-chemical-burn/ . [xxi] Id. [xxii] Id. [xxiii] Id. [xxiv] Medical Management Guidelines for Phosgene , Agency for Toxic Substances and Disease Registry, https://wwwn.cdc.gov/TSP/MMG/MMGDetails.aspx?mmgid=1201&toxid=182 (last reviewed October 21, 2014). [xxv] Baker, supra note xx (citing Class Action Complaint and Demand for Jury Trial, Canterbury v. Norfolk S. Corp. at ¶ 33, No: 4:23-cv-00298-BYP (N.D. Ohio Feb. 15, 2023)). [xxvi] Id. (citing Class Action Complaint and Demand for Jury Trial, Canterbury v. Norfolk S. Corp. at ¶¶ 101, 110, No: 4:23-cv-00298-BYP (N.D. Ohio Feb. 15, 2023)). [xxvii] State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416 (2003). [xxviii] Ohio Rev. Code Ann. § 2315.21(C)(1). [xxix] Tibbs v. Nat’l Homes Constr. Corp., 369 N.E.2d 1218, 1224 (Ohio Ct. App. 1977). [xxx] Colo. Rev. Stat. § 13-21-102(1)(a)–(b) (2022) [xxxi] Rachel E. Barkow et al., Modern American Remedies Cases and Materials 177 (Concise 5th ed. 2019). [xxxii] Id. at 188. [xxxiii] Exxon Shipping Co. v. Baker, 554 U.S. 471, 513 (2008). [xxxiv] Id. at 512. [xxxv] Ohio Rev. Code Ann. § 2315.21(D)(2)(a). [xxxvi] Colo. Rev. Stat. § 13-21-102 (2022). [xxxvii] Exxon Shipping Co., 554 U.S. at 512. [xxxviii] Ohio Rev. Code Ann. § 1743.02(B). [xxxix] 49 U.S.C. § 10102. [xl] Liz Brown-Kaiser, Lawmakers Push Norfolk Southern for More Recovery Help After Ohio Train Derailment , NBC News (Feb. 16, 2023) https://www.nbcnews.com/politics/congress/ohio-train-derailment-lawmakers-push-norfolk-southern-aid-rcna71114 . [xli] Chantal Da Silva, Train Carrying Propane Derails a Few Miles from Florida Airport , NBC News (Mar. 1 2023) https://www.nbcnews.com/news/us-news/train-carrying-propane-derails-miles-away-florida-airport-rcna72838 . [xlii] Emily Olson, Another Norfolk Southern Train Derails in Ohio , NPR News (March 6, 2023), https://www.npr.org/2023/03/06/1161262824/train-derailment-springfield-ohio ; Massachusetts Train Derails, No Hazardous Cargo Reported , A.P. News, https://apnews.com/article/freight-train-derailment-massachusetts-307dd02daf1ac56eadaf97ec89c1d9b2 .

The Future of Toxic Tort Litigation Surrounding PFOA and PFOS Modern society benefits from the use of non-stick cookware, stain-proof carpets and clothing, long-wear makeup products , cardboard food packaging, and firefighting foams. However, these products often contain chemical coatings of PFOA and PFOS, two types of PFA chemicals which allow the products to resist “oils, stains, water, and heat.” Perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) are commonly known man-made chemicals used in industry and consumer products since the 1940s. Many refer to these as chemicals “forever chemicals ” because they do not break down in the environment. In 2016, the EPA stated that forever chemicals were not a threat at low levels. However, in 2022, the EPA updated drinking water advisories, stating that PFOA and PFOS could be dangerous to human health in water even with concentrations at near zero. Essentially, any amount of PFOA or PFOS found in drinking water poses a risk to human health. Researchers have detected PFOS and PFOA in the blood of humans and animals worldwide . The health effects following exposure to low levels of these chemicals are currently unknown; however, in large amounts, these chemicals can affect development, reproduction, and damage the liver . A new study from the Environmental Working Group indicates that the drinking water of a majority of Americans likely contains “forever chemicals.” By the end of 2022, the EPA plans to propose a National Primary Drinking Water Regulation for PFOA and PFOS, with a goal to finalize the rule by the end of 2023. Litigation surrounding forever chemicals is growing. In Philadelphia, 3M and DuPont face claims for design defect, failure to warn, nuisance, trespass, and negligence for using PFAs in their products, after city and state officials discovered unsafe levels of PFOA and PFOS in the city’s drinking water. 3M has been named a defendant in several lawsuits and may face $30 million in liability. CoverGirl is facing litigation for deceptively marketing its products as safe, despite containing PFAs. If large populations of people begin to experience side effects tied to PFOA or PFOS exposure, then companies whose products contain these chemicals may also be subject to liability. If an injury is caused by a toxic substance, then the responsible companies may be liable for a toxic tort. Commonly known toxic tort litigation historically surrounded the use of asbestos and DES, a cancerous drug prescribed to pregnant women. Forever chemical litigation may resemble those cases given that scientists are discovering adverse health effects after widespread use of these products. Duty and Breach Companies using forever chemicals may be held to a higher standard of care given that a reasonable company would have made efforts to avoid the contamination of drinking water. To determine if a company acted reasonably, a court may evaluate whether there was a foreseeable risk of injury. However, in the case of forever chemicals, this may be a difficult task. Forever chemicals have been used since the 1940s, but it wasn’t until 2022 that the EPA updated drinking water health advisories. Plaintiffs will need to establish that the defendants knew the risks associated with these chemicals and continued to use them. DuPont and 3M allegedly knew of these risks for decades. Companies may also be held strictly liable for the discharge of forever chemicals. The advantage of suing under a theory of strict liability is that plaintiffs do not have to prove fault. Defendants can be held strictly liable if they engage in ultrahazardous activities. Manufacturing and distributing products that use forever chemicals may be considered an ultrahazardous activity. Unfortunately, strict liability will depend on the nature of the product. Strict liability may not apply if the usefulness of the product outweighs the risks to the consumer. Products utilizing forever chemicals are often very useful. For example, customers for decades have found non-stick cookware extraordinarily useful. Companies have a duty to follow federal laws, and violation may establish a breach of duty. Forever chemical contamination of drinking water has implications under the Safe Drinking Water Act (SDWA) and the Clean Water Act (CWA). Under the SDWA, the EPA sets maximum contaminant levels for public drinking water. Currently, PFAs are not considered primary or secondary contaminants. However, in 2022 PFAs were added to the Contaminant Candidate List . Until the EPA lists forever chemicals as chemical contaminants under the SDWA, it could be difficult for plaintiffs to hold companies liable for violation of the Act. The EPA plans to set a non-enforceable maximum contaminant goal level, as well as an enforceable maximum contaminant level. The maximum level is set at the point where there are no known or anticipated health effects on people. Given the EPA’s recent health advisory, the standard for PFAs will likely be set at near zero. Additionally, the Clean Water Act regulates pollutants in the Waters of the United States. The EPA has issued a memo to reduce permits allowing PFA pollutants. If a company releases forever chemicals without or in violation of a permit, then this could establish liability. Plaintiffs will have the largest likelihood of proving a breach of duty if they establish that a company violated either the SDWA or the CWA. Causation and Damages In a typical tort case, plaintiffs must establish that the defendant’s actions were a but-for cause of their injury. In the future, several companies may be liable for their use of forever chemicals. However, plaintiffs could face challenges in allocating their injuries to specific companies. To prove liability in a toxic tort case, plaintiffs must identify the substance that resulted in injury. A plaintiff may be successful in tracing forever chemicals to where the chemicals were used, and perhaps even trace chemical combinations to the area where their injury occurred. However, the pervasiveness of forever chemicals in the environment could impose challenges for plaintiffs. It may be difficult to establish that one defendant caused the plaintiff’s injuries if forever chemicals can be associated with several other companies. Defendants will likely argue that they are not the but-for cause of the plaintiff’s injuries because other companies’ use of forever chemicals made the injury inevitable. Given that forever chemicals do not break down in the environment, the number of responsible parties may even date back to the 1940s. A court may choose to apply market share liability, placing the burden on parties that financially benefited from the use of forever chemicals to prove that they did not cause the plaintiff’s injury. Market share liability was used to apportion damages in cases surrounding the use of DES. DES was a drug given to pregnant people between 1941 and 1971 to prevent miscarriages. DES was shown to cause cancer in daughters due to their exposure to the drug before birth. The court in Sindell v. Abbott Laboratories held that “[e]ach defendant will be held liable for the proportion of the judgment represented by its share of that market unless it demonstrates that it could not have made the product which caused the plaintiff’s injuries.” Market share liability was applied to DES cases because it was impossible to prove which company contributed to the plaintiff’s injury. The amount of liability corresponded to each manufacturer’s market share. However, DES cases differ from the use of forever chemicals because forever chemicals cross over several different markets. Given the difficulty of establishing each company’s share of a market when there are several different markets, a court may choose to apply a theory of alternative liability. In Summers v. Tice , the court held that if multiple parties acted negligently, and it is not possible to prove which defendant caused the plaintiff's injury, then the burden shifts to the defendants to show that they did not cause the plaintiff’s injury. Alternative liability may be the best way for plaintiffs to hold multiple defendants liable given that the use of forever chemicals spans several markets. The burden would be shifted to companies to show that they did not pollute the public’s drinking water with forever chemicals. Even if plaintiffs shift the burden to defendants to establish that they were not the but-for cause of the injury, defendants may still escape liability if they were not the proximate cause. In Palsgraf v. Long Island Railroad Co . , the court held that defendants only owe a duty to expected plaintiffs within the zone of reasonably foreseeable harm. Defendants may argue that holding companies liable for issues pertaining to drinking water is not foreseeable, especially given the EPA’s change in policy over forever chemicals in 2022. For many decades, there was no known harm associated with these chemicals, so how could companies foresee harm to the public? The defendants could perceive those who drank contaminated public water as unexpected, unforeseeable plaintiffs. This argument is not likely to be successful given that many defendants, such as 3M and DuPont, acknowledged they knew the risk that forever chemicals posed for several years. Additionally, under a theory of product liability within a toxic tort claim, a duty is owed to all persons who will be foreseeably affected by the product. This may be broad enough to encompass plaintiffs who did not directly use products containing PFAs but were injured after drinking contaminated water. Damages may be substantial for companies who manufactured products with forever chemicals. Should there be widespread health effects associated with forever chemicals, the classes of possible plaintiffs could be large. Litigation over the use of forever chemicals in products will continue to grow as agencies learn more regarding the health effects of exposure to PFAs. Punitive damages may be available if the chemicals were well known by the defendant to be toxic, as is allegedly the case with 3M and DuPont. However, the success of these toxic tort lawsuits may depend on the EPA’s updated regulations promulgated under the SDWA. The EPA should label PFAs as a contaminant under the SDWA. This will help plaintiffs hold companies liable for any future contamination of drinking water. Given the difficulty of removing forever chemicals from the environment, strong regulations must be in place to prevent any further damage to the country’s drinking water. SOURCES 1 Vargo, Products Liability Practice Guide § 6.03 (Matthew Bender, Rev. Ed. 2022) (explaining bystander liability in product liability claims). A Guide to Toxic Torts §§ 3.02–3.03, 3.07, 3.09, 3.11 (Matthew Bender & Co., Inc., 2022) (explaining elements of a toxic tort negligence claim, liability based on the defendant’s violation of legislative enactments, concepts pertaining to strict liability claims, concepts pertaining to collective theories of liability, and federal statutes addressing toxic substances.) Andrew Wallender, Companies Face Billions in Damages as PFAS Lawsuits Flood Courts, Bloomberg Law (May 23, 2022), https://news.bloomberglaw.com/pfas-project/companies-face-billions-in-damages-as-pfas-lawsuits-flood-courts. Annie Sneed, Forever Chemicals are Widespread in U.S. Drinking Water, Scientific American (Jan. 22, 2021), https://www.scientificamerican.com/article/forever-chemicals-are-widespread-in-u-s-drinking-water/. Contaminant Candidate List 5 – CCL 5, EPA, https://www.epa.gov/ccl/contaminant-candidate-list-5-ccl-5 (last updated Oct. 31, 2022). Drinking Water Health Advisories for PFOA and PFOS, EPA, https://www.epa.gov/sdwa/drinking-water-health-advisories-pfoa-and-pfos (last updated July 12, 2022). Drinking Water Regulations and Contaminants, EPA, https://www.epa.gov/sdwa/drinking-water-regulations-and-contaminants (last updated Feb. 17, 2022). Drinking Water Standards and Regulations, CDC, https://www.cdc.gov/healthywater/drinking/public/regulations.html#:~:text=The%20Safe%20Drinking%20Water%20Act%20(SDWA)%20was%20passed%20by%20Congress,suppliers%20who%20enforce%20those%20standards (last reviewed Aug. 10, 2022). Erika Ryan et al., PFAS ‘Forever Chemicals’ are everywhere. Here’s What you Should Know About Them, NPR News (June 23, 2022), https://www.npr.org/2022/06/22/1106863211/the-dangers-of-forever-chemicals. Julie Steinberg, CoverGirl, Coty Hit with False-Ad suit over PFAS in Powder (2), Bloomberg Law (Mar. 28, 2022), https://news.bloomberglaw.com/product-liability-and-toxics-law/covergirl-coty-hit-with-false-ad-lawsuit-over-pfas-in-powder. Matthew Daly, EPA: ‘Forever Chemicals’ Pose Risk Even at very Low Levels, AP News (June 15, 2022), https://apnews.com/article/science-climate-and-environment-government-politics-1997041096d6fc84edde97cf16f72bce. Matthew Santoni, Philadelphia Hits 3M and DuPont with PFAS Complaint, Law360 (Nov. 4, 2022), https://www.law360.com/consumerprotection/articles/1546973/philadelphia-hits-3m-and-dupont-with-pfas-complaint. National Primary Drinking Water Regulations, EPA, https://www.epa.gov/ground-water-and-drinking-water/national-primary-drinking-water-regulations (last updated Jan. 26, 2022). Palsgraf v. Long Island R.R. Co. , 248 N.Y. 339, 344–45 (N.Y. 1928). Per – and Polyfluoroalkyl Substances (PFAS), EPA, https://www.epa.gov/sdwa/and-polyfluoroalkyl-substances-pfas#:~:text=EPA%20is%20developing%20a%20proposed,by%20the%20end%20of%202023 (last updated Sept. 13, 2022). Perfluorooctanoic Acid (PFOA) Factsheet, CDC, https://www.cdc.gov/biomonitoring/PFOA_FactSheet.html (last reviewed Apr. 7, 2017). Perfluorooctanoic Acid (PFOA), Perfluorooctane Sulfonate (PFOS), and Related Chemicals, Am. Cancer Soc’y, https://www.cancer.org/healthy/cancer-causes/chemicals/teflon-and-perfluorooctanoic-acid-pfoa.html (last revised July 28, 2022). PFAS Blood Testing, Agency for Toxic Substances and Disease Registry, https://www.atsdr.cdc.gov/pfas/health-effects/blood-testing.html (last reviewed Nov. 1, 2022). Sandee LaMotte, Makeup May Contain Potentially Toxic Chemicals called PFAS, study finds, CNN News (June 15, 2021), https://www.cnn.com/2021/06/15/health/makeup-toxic-chemicals-wellness/index.html. Sindell v. Abbott Labs. , 607 P.2d 924, 937 (Cal. 1980). Summers v. Tice , 199 P.2d 1, 5 (1948). What are PFAS?, Agency for Toxic Substances and Disease Registry, https://www.atsdr.cdc.gov/pfas/health-effects/overview.html (last reviewed Nov. 1, 2022).

In September of 2019 the Denver Post reported that testing had identified high levels of toxic “forever chemicals” in surface waters and groundwater wells along the Front Range. These contaminants were found in waters in El Paso County, Adams County, Arapahoe County, Denver County and Boulder County. Commonly referred to as “forever chemicals” because they persist in the environment and resist the natural processes that ordinarily break down contaminants, these substances came to public attention when it was discovered DuPont was dumping these chemical wastes from a Teflon plant in West Virginia. The chemicals contaminated an adjoining farm and tainted the water supply of a neighboring town. The ensuing legal battle resulted in settlements reaching into the hundreds of millions of dollars. Later, the incident became the subject of the feature film, Dark Waters (Focus Films 2019), starring Mark Ruffalo and Ann Hathaway. In this article, we will examine these chemicals and their impacts, as well as the responses from the federal governmental and Colorado’s state government. THE CONTAMINANTS “What if you drank it?” “Drank it? You don’t.” “What if you did?” Per- and polyfluoroalkyl substances (“PFAS”) are a group of man-made chemicals . Two of the most well-known PFAS compounds are perfluorooctanoic acid (“PFOA”), which was used in making Teflon, and perfluorooctanesulfonic acid (“PFOS”), which was a key ingredient of Scotchgard. The PFAS group also includes thousands of other related chemicals. Used chiefly in consumer products like cookware, food packaging, and stain repellants, as well as in firefighting foams, these chemicals have been manufactured around the globe including in the United States since the 1940s. Because of their stable chemical composition, PFAS chemicals are persistent in the environment. That is, they resist the environmental degradation processes that ordinarily break down contaminants over time. The major sources of PFAS in the environment are manufacturing, processing, and disposal facilities. Airports and military installations that use firefighting foam are also important sources of PFAS contamination. These chemicals can be released into the air, soil, and water – including sources of drinking water. In addition, because they do not break down in water they can be transported long distances and deposited in sediments far from their source of origin. Studies have shown widespread human exposure to these chemicals. For instance, PFOA was detected in blood serum in 99% of the U.S. general population between 1999 and 2012. There are also documented adverse health effects from exposure to PFAS chemicals. An epidemiological study of the residents of Parkerburg, West Virginia, showed that exposure to PFOA through contaminated drinking water is associated with a number of conditions, including high cholesterol, thyroid disease, pregnancy-induced hypertension, ulcerative colitis, and kidney and testicular cancer. Some PFAS are demonstrated to be toxic to laboratory animals, causing reproductive, developmental, and systemic effects in laboratory tests. The EPA has found there is evidence that suggests PFOS and PFOA may cause cancer, and the World Health Organization has declared that PFOA is a possible human carcinogen. The major industrial producers of PFOA and PFOS phased out the manufacture of these chemicals in the United States by 2015. But they are still prevalent in the environment due to their long residence time, importation in products, and some continuing uses. In addition, there are many other PFAS chemicals which are still in production and use throughout the United States. As a consequence, current data shows that there are over 1,500 impacted sites spread across 49 states. THE NATIONAL RESPONSE “Good luck in Washington.” PFAS were not generally recognized as chemicals of concern at the time Congress enacted our major environmental laws. But by the late 1990’s, regulators began to inquire regarding the impacts of these emerging contaminants. Concerns about the effects of the chemicals continued to grow, and in 2012 the United States Environmental Protection Agency (“EPA”) added PFOA, PFOS, and a number of other PFAS compounds to the list of chemicals mandated for testing by public water systems. In May of 2016, the EPA issued health advisories for PFOA and PFOS . These advisories noted the persistence of the chemicals and their propensity to bioaccumulate in the human body. They also examined the accumulated literature regarding the health consequences due to exposure to the chemicals. Based on the estimated risk posed to human health, the EPA set a limit of 70 parts per trillion (“ppt”) for lifetime exposure to PFOA and PFOS in drinking water. However, these health advisories were not enforceable regulations. Instead, they were designed to provide information to allow for better protection of human health and the environment. In 2019, the EPA issued an action plan to outline further steps the agency intended to take to respond to the hazards posed by PFAS contamination. In the plan, the EPA announced its long-term goals to (1) evaluate the need for a formal, enforceable maximum contaminant level for PFOA and PFOS in drinking water; (2) seek the designation of PFOA and PFOS as “hazardous substances” under federal environmental laws; (3) develop groundwater cleanup recommendations for PFOA and PFOS at contaminated sites; and (4) develop additional information for the toxicity of certain other PFAS chemicals. The document also discussed EPA’s plans for public engagement and other steps such as the use of permit conditions and enforcement actions to reduce discharges of PFAS chemicals to waters. Overall, the plan represented a systemic approach aimed at reducing public exposure to PFOA and PFOS as well as proposing forward-looking steps to better understand and control the threat posed by other PFAS chemicals. Later that same year, Congress joined the effort by enacting the “ PFAS Act of 2019 ” as part of the National Defense Authorization Act for Fiscal Year 2020. The Act directed the EPA to list 14 specific PFAS, as well as any additional PFAS that met certain criteria, as “toxic chemicals” under Section 313 of the Emergency Planning and Community Right-to-Know Act. Commonly referred to as the Toxic Release Inventory, this provision requires covered facilities which manufacture, process or otherwise use a listed toxic chemical to annually report to EPA environmental releases and other waste management activities relating to the toxic substance. In accordance with the new law, EPA published a list of 172 specific PFAS chemicals that now must be annually reported under the Toxic Release Inventory. EPA also adopted a rule prohibiting the manufacture or import of certain substances, including several specific PFAS chemicals, without prior EPA approval. EPA’s most significant action, however, was to publish a notice in the Federal Register in March of 2020. In this notice, the agency acknowledged that PFOA and PFOS can cause adverse human health effects and that the presence of these chemicals in public drinking water is a serious health concern. It also acknowledged that regulating PFOA and PFOS would provide a meaningful opportunity to reduce these health risks. But instead of proposing enforceable regulations to limit the levels of PFAS in our drinking water, the EPA announced it was making a “preliminary determination to regulate PFOA and PFOS with a [National Primary Drinking Water Regulation] after evaluating health, occurrence, and other related information[.]” That is, the EPA announced it had made a preliminary decision that at some point in the future it would regulate PFOA and PFOS through an enforceable drinking water standard – but that time was not now. Instead, the agency stated that, for now, it would solicit additional comments regarding the analysis it had already performed of the existing data and whether there was additional data it should consider. This implies several years of additional regulatory delay before the EPA actually takes action to propose enforceable limits for the PFAS that are in the nation’s drinking water. As such, the EPA’s latest move appears to be a step backwards from the course of action envisioned in its 2019 action plan. THE COLORADO RESPONSE “We protect us. We do.” Colorado is one of the handful of states that has acted to take steps on its own to address the emerging threat of PFAS contamination. The problem gained attention within the state when testing near Peterson Air Force Base in Colorado Springs revealed that PFAS chemicals had tainted the drinking water supply of 80,000 people . The contamination reportedly came from the use of firefighting foams which contained PFAS chemicals. The contaminants entered the Fountain Creek watershed upgradient of the towns of Widefield, Fountain, and Security and impacted the wells supplying the local water district. At one well, data showed contaminants at 1,370 ppt. Further testing at Peterson Air Force base showed PFAS in the groundwater at levels up to 88,000 ppt – more than 1,250 times higher than EPA’s health advisory limit of 70 ppt. Additional investigation also identified a number of other air force bases, fire stations, and industrial sites across the state that were likewise impacted by PFAS. In response, the Colorado Legislature enacted the Firefighting Foams and Personal Protective Equipment Control Act to ban the use of firefighting foams containing PFAS during training activities and to phase out the future use or sale of such foams in the State of Colorado. From a regulatory standpoint, the Colorado Department of Public Health and Environment (“CDPHE”) adopted a groundwater quality standard of 70 ppt for combined PFOA and PFOS at the impacted area near Colorado Springs . CDPHE also put forth an action plan which aimed to limit public exposure to PFAS chemicals, provide for mitigation and cleanup of contaminated sites, conduct health studies, improve the state’s capacity for testing for PFAS, set state-level limits for PFAS in drinking water and surface waters and groundwater, implement the new Act regarding the use of firefighting foams and a number of additional objectives. Along these lines, Colorado regulations now list PFOA and PFOS as hazardous waste constituents , meaning they must be accounted for as hazardous wastes in ongoing and future remedial actions. In addition, the Colorado Water Quality Control Commission recently adopted a new policy for the protection of drinking water sources which essentially adopts EPA’s 70 ppt health advisory limit as a water quality standard for permitted discharges and for use in cleanup actions for drinking water sources contaminated by PFAS. Other states are likewise adopting standards for PFAS chemicals, including New York , Massachusetts , Michigan , New Jersey , Illinois and others. In short, Colorado and many other states are moving diligently to take the actions that EPA has not. CONCLUSION “The whole world needs to know.” The emergence of PFAS as pollutants of concern over the past two decades has presented a myriad of challenges. Our eyes have been opened to a hazard that threatens the health of millions of Americans who have PFAS chemicals in their bloodstreams and in their drinking water. The initial federal response provided critical awareness and guidance as to the threat. But the EPA has since neglected to provide an enforceable mechanism to ensure safe drinking water. In light of the failure of effective leadership from the federal level, the states have stepped in to protect their citizens. In Colorado in particular, the state has engaged in a vigorous and comprehensive response since the issue came to light in Colorado Springs that has caught up with–and in some ways surpassed–the federal effort.

Introduction Fifty years ago, the tide was turning in the war in Vietnam, the civil rights movement was in full swing, and the cold war was raging—but American industry was booming. The United States Congress and the Lyndon B. Johnson administration, however, recognized the danger that industry and development posed, particularly to America’s rivers. Responding to that threat, President Johnson signed the Wild & Scenic Rivers Act (“the Act”) into law on October 2, 1968. Now, fifty years later, it is possible see where the Act has been successful, where it has met challenges, and where it has developed along the way. The end of the 1960’s marked a point of awakening for American conservationism. The scale of industry was coming to a point where industrial effects on the environment were impossible to ignore. America’s rivers were particularly suffering from decades of damming, development, and diversion. Congress turned to address these issues at the end of the 1960s, beginning America’s modern history of environmental law and setting up the 1970s as the environmental decade. The Wild & Scenic Rivers Act was one of the first pieces of legislation passed during this surge of environmental protectionism. To this day, it remains one of the strongest protections available for American rivers as it preserves the essential character of rivers in their natural, free-flowing state. How it Works The Act gives Congress—and in some circumstances, the Secretary of the Interior—the power to designate rivers for protection that “possess outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural or other similar values.” This range of possible reasons for designation gives Congress a fairly broad grant of authority. Congress may also designate smaller sections of a river under the Act, including tributaries, instead of the entire river. The ultimate purpose of the Act is to ensure that protected rivers will be preserved in free-flowing condition for the enjoyment of future generations. The Act also requires that future development in non-protected areas implement policies that ensure designated rivers remain protected. Congress can classify rivers as “wild,” “scenic,” or “recreational.” The classification does not prescribe how an area is managed; it simply denotes the relative degree to which the area has been preserved. Regardless of the classification, each area is afforded the same protections. “Wild” river areas are those that are representative of “primitive America.” These are defined in the Act as areas with pristine waters, undeveloped shorelines, and trail-only access. A “scenic” area is still relatively undeveloped, but parts are accessible by car. A “recreational” area may have some development and is readily accessible by car. The typical means of designating rivers under the Act is through Congress. Congress first instructs that the agency with authority over a River—such as the National Park Service, National Forrest Service, or Bureau of Land Management—study a river area and determine if it is suitable for designation. The president or a state can also suggest areas for designation. After receiving the agency’s report, Congress can then choose whether to designate the river or not, regardless of the agency’s findings. In designating the river, Congress must classify the area as wild, scenic, or recreational and determine which outstandingly remarkable values (“ORVs”) are worth preserving. A “wild and scenic” river is primarily protected through federally coordinated actions set out in the Act. First, the Act directs agencies to take action necessary to preserve the river in its free-flowing condition and enhance its ORVs. The Act also prohibits the Federal Power Commission from licensing the construction of a hydroelectric dam or other project that would affect a designation. Additionally, the Act prohibits any federal agency from loaning, granting, or licensing a water resources project that would have an adverse effect on the designated area’s ORVs. Once Congress has designated an area as a Wild and Scenic River, a federal or state agency becomes responsible for administering the area. As the Act does not stipulate a specific agency to administer, the agency that normally oversees the area will typically be given responsibility. Regardless of the classification, the primary responsibility of the administrator of the area is to protect and enhance the “outstandingly remarkable” value or values under which Congress made the designation. Private property in the area and existing state-allocated water rights are subject to condemnation to achieve the purposes of the Act. The federal government, however, is limited in how much land can be condemned in any one designated area. Unfortunately, recourse for holding an administrator accountable is somewhat limited, as the Act does not authorize citizen suits. This means that in order to hold an agency accountable for not properly administering a Wild and Scenic River, a plaintiff must sue that agency under the Administrative Procedure Act. The court will review agency actions under an arbitrary and capricious standard, which provides the agency with broad discretion as to how a designated river is managed, making it unlikely that most challenges would be successful. The Evolution of the Act Throughout its fifty-year history, Congress substantively amended the Act nearly thirty times , but the most significant changes to the Act occurred about ten years after the Act was originally passed. By 1978, the Wild and Scenic Rivers system was expanding quickly; Congress, reacting to growing pains of the system, amended the act with the intent to assist in the expansion of the system. The National Parks and Recreation Act of 1978 (“NPRA”) brought about some of the most sweeping changes to the Wild and Scenic Rivers Act, amending six separate sections of the original Act. First, the NPRA amended Section 2 of the Act—the section guiding state-administered components—to allow federal funding for designated areas on federally owned land that are state-administered. This amendment specifically responded to an issue with the Department of the Interior objecting to designations where a significant amount of federal land bordered a designated area. Because the original 1968 Act lacked this provision, the Department of the Interior could object to such designations on the grounds that the federal lands could not be funded and managed properly. The NPRA also amended Section 6 of the Act—the section regulating acquisitions—by changing the definition of “improved property.” The amendment is significant because the owner of an improved property that is acquired under the Act is limited to using and occupying the property for twenty-five years. The original Act only included dwellings constructed before 1967, and this amendment removed that limitation. Now, all those affected by acquisitions under the Act are entitled to this twenty-five year grace period. Another significant amendment changed Section 14 of the Act—the section on leasing federal lands—also aimed to help those whose property was acquired under the Act. The amendment gives the administering agency the power to lease acquired lands if the lease is restricted to private uses compatible with the Act. In passing the amendment, Congress specifically contemplated that these leases would be offered first to the person who owned the land before the United States acquired it. Nearly a decade after the NPRA became law, Congress scrutinized the Act again to address growing pains of the system and amended it another seven times. One of the most notable amendments from this wave of changes is to Section 6 (acquisitions), and continued a pattern of expanding federal power under the Act. The amendment gave the administering agency the power to acquire land that lies partially within and partially outside the boundary of a Wild and Scenic River. If the state owns the land, the amendment allows the federal government to acquire the land by exchanging federally owned land. Notable Designations When the Act was passed, Congress designated eight rivers as National Wild and Scenic Rivers: the Clearwater and Salmon Rivers in Idaho, Eleven Point River in Missouri, the Feather River in California, the Rogue River in Oregon, the Wolf and St. Croix Rivers in Wisconsin, and the Rio Grande in New Mexico. Today, fifty years after the Act was passed, there are now more than 12,500 miles in forty states and Puerto Rico. However, given the sheer size of the United States, the amount of area protected under the Act represents a mere 0.33 percent of America’s rivers. In comparison, damming alone has modified at least 17 percent of our rivers. One of the original eight designations when the Act passed in 1968 protects sixty-eight miles of the Rio Grande in New Mexico . The protected area spans from the Colorado border through the eastern part of Rio Grande del Norte National Monument. The designation is based on a number of outstandingly remarkable values, including cultural and geologic value in addition to the typical scenic and recreational value. In 1981, Congress protected 286 miles of the Klamath River under the Act on the coast of California. Congress designated the area of the river from the central part of the Oregon border all the way to the Pacific Ocean. The Klamath was specifically protected for its fisheries, which support a number of endangered species. Congress designated eighty-six miles of the Allegheny River in Pennsylvania in 1992. The protected area begins at Buckaloons Recreation Area and continues downstream to Acorn Island. The designation is largely based on recreational opportunities, specifically canoeing and fishing. The Act Today In the last ten years, Congress has designated nearly forty new river areas as National Wild and Scenic Rivers. One of the largest years for new designations in the history of the Act was 2009, with thirty-two new areas gaining protection all across the country. Prior to 2009, Congress made new designations under the Act virtually every year. Since then, however, there have been only six new designations, all in 2014. Among the new designations were rivers in Washington, Arizona, and Vermont—and one existing designation was added to White Clay Creek in Delaware. Significantly, Congress also designated fourteen new river areas to study in 2014. Four years later, and Congress has yet to approve any new designations, however bipartisan legislation has recently moved forward to designate East Rosebud Creek in Montana. Today, several areas of the Act are commonly litigated in federal court. Boundary designations are one of the most litigated areas, and have been throughout the history of the Act. Property owners challenge boundary designations to avoid acquisition or increased limitations affecting use of their property. Cities and counties also challenge designations if they feel prejudiced, as the Act can severely limit construction, irrigation, and discharge into a river. Designations typically face challenges on the grounds that the administering agency did not comply with the Act, usually by not identifying ORVs specifically enough. Boundaries must be consistent with protecting and enhancing a designation’s ORVs. However, objectors also challenge designations on the grounds that a certain area is not fit for designation. For example , in 2017 in Oregon, a group of ranchers challenged a designation on the Rogue River arguing that it had already been developed to such an extent that it was no longer fit for designation. Another area of the Act that is frequently litigated today is how to actually manage the Wild and Scenic River system. Specifically, agencies frequently face challenges because they did not prepare a comprehensive management plan (“CMP”) for a designated area. The courts have recognized that the Act does not actually mandate agencies to draft a CMP, yet courts have required agencies to do so in certain instances, including through injunctive relief. Another common management challenge is to an agency’s decision regarding balancing competing uses. This usually comes up in the context of preexisting uses of the river area before designation. As these agency decisions are reviewed under an arbitrary and capricious standard, these challenges typically find little success. In the next fifty years of the Act, we may see Wild and Scenic River designations being consciously used to combat climate change, as preserving America’s most important rivers could help mitigate some of the effects. As the changing climate continues to shrink and degrade critical habitat for aquatic species, America’s Wild and Scenic Rivers can provide essential repositories and corridors for certain species. Furthermore, as both drought and flooding have increased with the onset of climate change, Wild and Scenic Rivers can also help both preserve drinking water for a growing population and also maintain flood security. Conclusion By 1968 it was clear to Congress and the Johnson administration that America desperately needed to respond to increasing environmental degradation from industry and development. Recognizing the importance of our shared heritage, Congress gave Americans the gift of the Wild and Scenic Rivers Act. In the fifty years since the Act was passed, Congress has seen fit to designate and preserve over 12,000 miles of river for the benefit of future generations of Americans. While the amount of new designations has been steadily declining, the Act still offers some of the staunchest protections for America’s most beloved rivers. In every corner of the country, Americans likely have the Wild and Scenic Rivers Act to thank for the memories of lazy river days that we as Americans cherish as a part of our shared heritage. Sources 47 Fed. Reg. 39454, 39458. Allegheny River, Wild and Scenic Rivers Council, https://www.rivers.gov/rivers/allegheny.php. Celebrating Fifty Years, Wild and Scenic Rivers Council, https://www.rivers.gov/wsr50/index.php. Federal Agency Roles, Wild and Scenic Rivers Council, https://www.rivers.gov/documents/federal-agency-roles.pdf. Interagency Wild and Scenic Rivers Coordinating Council, Evolution of the Wild and Scenic Rivers Act (2014), https://www.rivers.gov/documents/wsr-act-evolution.pdf. Jessianne Wright, Bipartisan Legislation Moves Forward for Montana Wild and Scenic Designation , Explore Big Sky (Jan. 7, 2018), http://www.explorebigsky.com/bipartisan-legislation-moves-forward-for-montana-wild-and-scenic-designation. Karina Brown, Oregon Cattlemen Fight Wild & Scenic River Designation, Courthouse News Service, (Mar. 16, 2017), https://www.courthousenews.com/oregon-cattlemen-fight-wild-scenic-river-designation. Klamath River, Wild and Scenic Rivers Council, https://www.rivers.gov/rivers/klamath-ca.php. Max Greenberg, Get to Know These Amazing Rivers: A Celebration of the Wild & Scenic Rivers Act, The Wilderness Society (October 2, 2014), https://wilderness.org/blog/get-know-these-amazing-rivers-celebration-wild-scenic-rivers-act. Missouri River, Wild and Scenic Rivers Council, https://www.rivers.gov/rivers/missouri-mt.php. Murray Feldman et al., Learning to Manage Our Wild and Scenic River System , 20 Nat. Resources & Env’t 10 (2005). Wild and Scenic Rivers Act, 16 U.S.C. §§ 1271–1287 (2014). Wild and Scenic River Designation, Wild and Scenic Rivers Council, https://www.rivers.gov/designation.php.