Page 12 - Yucaipa Valley Water District - Board Workshop

INSIGHT: PFAS Liability Is Coming to California about:reader?url=https://www.bna.com/insight-pfas-liability-n57982093402/

Businesses should require their suppliers to substantiate their

warranties by providing indemnity if the business’s products are

proven to contain PFAS. Given the ubiquity of PFAS, and the

growing risk of regulatory enforcement and litigation, it is crucial

that suppliers provide not only warranties, but indemnity as well.

With a complete risk profile of PFAS, businesses can begin

addressing the greatest points of risk. If at all possible, businesses

should immediately transition to using PFAS-free equipment and

supplies at all levels. But in many cases, businesses face potential

liability for historical PFAS exposure that cannot necessarily be

resolved with replacement products. For example, does a law firm

that installed carpet in its office two decades ago need to test that

carpet? If the law firm detects PFOA or PFOS in the carpet, must it

post a Proposition 65 warning?

With the deadline for PFOA and PFOS warnings looming, the

OEHHA has not provided an answer. The Proposition 65 plaintiffs’

bar in California is ready to prey on that uncertainty the moment the

warning requirement becomes active in November. In less than

three weeks, businesses may be faced with balancing the business

risks of a warning requirement against the unpredictable cost of

Proposition 65 litigation. Even though there are mechanisms in

place under Proposition 65 to avoid warning requirements, the

OEHHA admits that mechanism “can be very complex” because it

involves analysis of animal studies, epidemiologic data, risk

analysis, and much more.

Of course, no matter how well prepared, no business will always be

able to avoid the storm of PFAS liability. But if it can batten down

the hatches now, it will be ideally positioned to take on any PFAS-

related challenge head-on.

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