A new California lawsuit seeks to hold manufacturers liable for damages allegedly caused by per- and polyfluoroalkyl substances – known as PFAS – arguing violation of public nuisance and negligence laws.
California Attorney General Rob Bonta announced the suit on Nov. 10 against 3M, DuPont, Carrier Global, and many other named and unnamed parties. The complaint, filed in Alameda County Superior Court, focuses on Perfluorooctanoic acid, Perfluorooctane sulfonic acid, and five other chemicals determined hazardous by California regulators.
It’s among the first statewide suits seeking statewide relief, Albert Lin, professor of law at UC Davis School of Law, told the Northern California Record.
“And it is pretty broad compared to some of the other cases we’ve been seeing on PFAS where oftentimes it’s been against a local water district or municipality,” Lin said.
Lin noted an earlier case filed in Minnesota focused on natural resources damages.
“This lawsuit includes natural resource damages but goes beyond that, seeking particularly the clean-up costs,” Lin said.
California is not the first state to file such a suit. Wisconsin Attorney General Josh Kaul, who was reelected last month, filed suit there in July.
In August, the EPA issued proposed rulemaking for designating PFAS as hazardous and declined to extend the public comment period beyond Nov. 7. That proposed rulemaking would designate PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as the Superfund law.
The Food and Drug Administration (FDA) states that PFAS are chemicals that have been used since the 1940s in many consumer and industrial products because of their resistance to oil, grease, heat, and water.
A recent PFAS case was dismissed in federal court in New York. Several hundred cases have been combined in Multidistrict Litigation (MDL) in a South Carolina federal court.
The PFAS Action Act was passed by the U.S. House last year. New California PFAS laws will take effect in 2025
The Wisconsin suit looks similar to California’s in terms of breadth, Lin said.
It’s not yet known whether or not the California case would go to trial because there aren’t many statewide cases like this that have gotten very far yet, Lin said. Most PFAS cases focus on a particular facility or contamination but there has been growing recognition of PFAS by state and federal regulators.
The California suit, Lin noted, focuses on assessments by the California State Water Resources Control Board and could be a roadmap for similar action in other states.
Gov. Gavin Newsom in September signed the new PFAS legislation that is taking effect in three years.
In terms of whether there’s tort liability based on the general conduct here, it doesn’t rest on whether or not a regulatory agency has acted, Lin said. “As you’re probably aware, EPA hasn’t done a whole lot yet, it’s in the process of identifying safe drinking water standards and has proposals out for identifying PFAS and PFOA as hazardous substances under CERCLA. None of those things are finalized.”
“And this isn't surprising kind of in the big picture sense of what’s the role of tort law where we have a legal system where environmental law is a largely statutory system, where one of the key functions of tort law is to function as a kind of gap filler and that is essentially what we’re seeing here, where numerous tort claims are being filed for these chemicals which up until recently had not seen a whole lot of regulation,” Lin said.
The California complaint focuses on seven PFAS chemicals.
“It seems they’ve focused on those where the state water board has either established or requested limits or restrictions for these particular PFAS chemicals in drinking water, so not so much what EPA has been doing but what the state regulators have been doing,” Lin said.
In a statement emailed to the Record, a 3M spokesperson said, “3M acted responsibly in connection with products containing PFAS and will defend its record of environmental stewardship.”
In a statement emailed to the Record, a DuPont spokesperson said, “In 2019, DuPont de Nemours was established as a new multi-industrial specialty products company. DuPont de Nemours has never manufactured PFOA, PFOS or firefighting foam. While we don’t comment on pending litigation, we believe these complaints are without merit, and the latest example of DuPont de Nemours being improperly named in litigation. We look forward to vigorously defending our record of safety, health and environmental stewardship.”
Updated case status information was not immediately available from the Alameda County Superior Court.