Does using forever chemicals mean forever liability?

While most of the commentary coming from actions of the Georgia General Assembly this session centers on taxes – the Senate with a plan to phase out the income tax; the House trying to remove property taxes for homeowners – there’s a lot more going on under the gold dome. Part-time citizen legislators have to become experts on a variety of topics, some of which have long-term consequences for our own health and the state’s.

One such issue is that of PFAS, more commonly known as “forever chemicals”. This is a somewhat broad category of chemicals that were widely used since the 1950’s, are now quite common in our groundwater and food supply, and have become an entire industry for trial lawyers seeking billions in judgments, and any company that had PFAS in their supply chain.

House Bill 211 seeks to address potential liabilities for those who use PFAS chemicals in their manufacturing processes within established guidelines set by the US Environmental Protection Agency and Georgia’s Environmental Protection Division.  It’s sponsored by Representative Kasey Carpenter of Dalton, with co-signers including Representatives Jason Ridley of Chatsworth, Matt Barton of Calhoun, Mike Cameron of Rossville, and Steve Tarvin of Chickamauga.  

The common thread among the districts represented by these sponsors is that the region’s largest employer is the carpet industry. Inputs used in the manufacture of carpet, including stain repellent commonly known as Scotchgard, used PFAS chemicals – PFOA and PFOS – that were added to the EPA’s list of dangerous and hazardous substances in 2024.  These chemicals were discontinued in 2002 and 2015, respectively, and have thus been phased out of carpet production. Now we’re deciding who has liability for the mess left behind.

Representative Tarvin has been using his social media channels quite effectively to discuss what the legislation does – and equally importantly – does not do. That is the role of a legislator in representative government. He has to cut through the hysteria and doubt, inform his constituents, and ultimately do what is best for his constituents. In the balance lies the health of local residents and the economic health of Georgia’s second and seventh-largest manufacturers by employee count, Shaw Industries and Mohawk Industries.

Tarvin has posted 12 numbered posts on his Facebook page about PFAS since January, though this effort began with two separate “placeholder” bills last year. Deference has been paid to ensuring the legislature gets this balance correct rather than a speedy, knee-jerk response to the Biden Administration’s retroactive regulation.

While the details of his posts are deep, including a timeline for PFAS issues dating back to the 1940’s creation of the compounds, the intent is to get to the root of what response from Georgia is needed. Summarizing and paraphrasing Representative Tarvin’s posts on his behalf, it comes down to whether a company that uses but does not manufacture a legal ingredient that is already regulated should be held liable for its use.

Some would call this a question of fairness. This involves both politics and big money, however. Thus, to quote my late father’s most frequent admonition, “nothing in this world is fair.”

In the current climate, populists on the right believe big business is the enemy and should be punished for existing. The left wants anyone with deep pockets to “pay their fair share” by any means necessary as part of income and wealth redistribution.  Trial lawyers are lucky that both sides can appear on any given jury.

Despite how the bill is being framed by Atlanta media, it does not, in its current form, offer anyone blanket immunity. It instead seeks a balance for future claims. Of note, the burden of proof that manufacturers who used PFAS chemicals in their own production knew of potential harm would fall on plaintiffs and/or prosecutors, rather than on them having to prove they were innocent.

In short, the bill seeks to distinguish between a “misled commercial receiver” and someone who knowingly contributed to environmental problems and/or tried to cover them up.  That latter category will still provide plenty of groundwater for trial lawyers to drill down into.

As of this writing, HB 211 has moved to the House Judiciary Committee. Plenty of career lawyers who also serve as Representatives will have their say on liability limitations there. If the bill is to make it to the Governor’s desk for signature, it will have to pass both House Judiciary and Rules Committees and receive a floor vote by March 6th to be considered in the Senate. A lot hangs in the balance.

I’ll add a personal note about Representative Steve Tarvin. I met him in 2009 when he was running for Congress at the height of the Tea Party movement. I can’t remember the words he used to introduce himself, but it was along the lines of “an independent old cuss”. He was, and is. That’s a high compliment in my book.

He’s taking the details of this debate directly to his constituents – not bumper sticker slogans, but enough detail on which I could base this column. He wants the facts out there, good and bad. He knows he and his voters will have to live with the results, whatever the legislature decides.