State of California Sues More Than 100 PFAS Manufacturers in Landmark Lawsuit
Pleadings recently filed in the Superior Court for Alameda County, California have named more than one hundred current and historic manufacturers of various per- and polyfluoroalkyl substances (PFAS) compounds, also colloquially known as “forever chemicals,” as defendants in a lawsuit alleging toxic contamination by such substances.
The lawsuit, which was filed by Attorney General Rob Bonta on behalf of the State of California, targets multinational chemical manufacturers such as 3M Company, E.I. du Pont de Nemours and Company and several of its corporate affiliates (the “DuPont Defendants”), and AGC Chemicals (formerly known as Asahi Glass Co., Ltd.), along with dozens of firms responsible for the manufacture and sale of PFAS-containing aqueous film forming foams (AFFFs) in California. The list of defendants also includes 100 “Doe Defendants” whose names have not yet been ascertained, but who the State alleges caused or contributed to PFAS contamination. The complaint includes a detailed and informative description of PFAS history and characteristics and we recommend that potentially impacted parties review it.
The Complaint alleges that the defendants created, marketed and sold PFAS compounds directly, used processes such as electrochemical fluorination to produce substances that break down into PFAS compounds or produced various fluoropolymers that required the use of PFAS compounds to process. The lawsuit argues that defendants such as 3M, who created the chemical C8 for Scotchgard products, and DuPont, which used C8 in its nonstick Teflon products, knew or should have known of the risks created by these PFAS products. California seeks to hold these manufacturers liable for widespread PFAS contamination throughout the state, including alleged damages to soils, sediments, groundwater, surface waters, wildlife and drinking water.
The legal theories espoused by California include claims for public nuisance; pollution, impairment, and destruction of natural resources under California Government Code section 12610; products liability; unlawful business practices; and negligence per se. The lawsuit additionally targets the DuPont Defendants in a lengthy portion of the Complaint alleging specific fraudulent transfers of DuPont assets as part of a deliberate restructuring plan aimed at shielding such assets from DuPont’s PFAS products liabilities. California seeks to enjoin the DuPont Defendants from any further transfers and establish a constructive trust over the original DuPont proceeds.
The lawsuit seeks injunctive relief, damages, penalties, restitution, and abatement, as well as statewide treatment and destruction of PFAS, including, but not limited to, the treatment of drinking water by regulated water systems; water drawn from private wells and unregulated systems used for drinking water and irrigation; and water from other wastewater treatment plants and systems. The lawsuit also seeks payment of funds necessary to mitigate the impacts to human health and the environment through environmental testing, medical monitoring, public noticing, replacement water (for period between testing and installation of treatment) and safe disposal and destruction.
California’s lawsuit, although the first of its kind, includes arguments that are transferrable to other states and jurisdictions. The lawsuit also rides a wave of state and federal regulatory action targeting PFAS. More than 203 PFAS-related bills have been proposed in 31 states to date, and EPA announced major proposed rulemaking in September seeking to designate two prominent PFAS chemicals – PFOS and PFOA – as hazardous substances under CERCLA, the federal Superfund statute.
Although the California lawsuit largely targets PFAS manufacturers, end-users of PFAS-containing products or those who incorporate PFAS into their products are not immune from liability. For example, paper mills in Maine have faced suit related to their heavy use of PFAS, while Burger King and McDonald’s have been subjected to class action claims related to their incorporation of PFAS in food packaging.
We advise businesses to consider whether they currently use or historically have used PFAS-containing products in their operations. The regulatory landscape related to these materials is quickly changing on both the federal and state level, and preparation is needed to reduce potential liability and compliance risks moving forward.
Phelps’ environmental team makes a concerted effort to monitor PFAS-related developments, whether regulatory, tax-related, or litigation-related, and acts as a firm-wide resource on the subject. Please contact Steve Levine, David Topping, Sophie Gray or any member of the Phelps Environmental team if you have questions or need advice or guidance.