The State of Maryland recently filed a lawsuit against W.L. Gore and Associates, alleging that at least 13 of its 14 facilities in Cecil County have contaminated soil and groundwater with per and polyfluoroalkyl substances (“PFAS”). W.L. Gore is the maker of Gore-Tex. In the lawsuit filed in the U.S. District Court of Maryland, Maryland alleges that the company knew for decades of the danger posed by the chemicals but “concealed that information from the State and the public.” This lawsuit is the latest in a burgeoning trend of lawsuits against private companies related to PFAS contamination. For example, in early 2024, a private lawsuit was brought in Maryland against fertilizer manufacturer Synagro, alleging that its product was contaminated with PFAS and was subsequently applied to farm fields.
What are PFAS?
PFAS are a class of synthetic chemicals first used in the 1940s. Today, PFAS are used to make water, heat and stain resistant products such as cookware, carpets, clothing, furniture fabrics, paper packaging for food, and other resistant materials. These chemicals are persistent in the human body and throughout the environment. Certain PFAS are believed to cause adverse health effects but are classified by scientists as emerging chemicals because the risks they pose to human health and the environment are not completely understood.
The Significance for Businesses
The action against W.L. Gore is significant because it was brought as a state enforcement action. Maryland argues that W.L. Gore should be financially responsible for the cost of investigations into its sites, as well as any PFAS remediation activity and environmental restoration. It is reasonable to expect that other states, including Pennsylvania, will bring lawsuits seeking to require PFAS remediation and/or recovery of the states’ costs related to PFAS contamination. Private companies also face the specter of private lawsuits related to their manufacture and use of products containing PFAS.
Because of the threat of lawsuits, companies that manufactured or used PFAS should consider steps to assess their potential liabilities and risks. This should be done in consultation with responsible environmental consultants and attorneys so that the assessments do not actually increase their litigation risks. In addition, the potential presence of PFAS raises issues related to real estate transactions. For example, potential purchasers of commercial real estate may want to inquire about the potential presence of PFAS and assess their possible liabilities as part of their due diligence.
If you have any questions regarding how PFAS may impact your business or future transactions, please contact attorney Martin Siegel or any member of the Barley Snyder Environment & Energy Industry Group.
