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

same agency formally adopted a maximum contaminant level of 14

parts per trillion for another form of PFAS called perfluorononanoic

acid (PFNA). New Jersey seems especially focused on protecting

its public water supplies from PFAS.

The state of Washington has taken a different approach. In late

February 2018, it added PFAS to its list of chemicals that cannot

intentionally be used in food packaging. That ban goes into effect in

2022 at the latest, and even earlier if state regulators can find safer

alternatives than PFAS in food packaging. One month later,

Washington explicitly banned the use of PFAS in the manufacture

of firefighting foam. Washington regulators are also aggressively

testing public water systems to determine whether remedial action

is necessary to address PFAS contamination.

The increasing regulatory scrutiny paid to PFAS throughout the

country has been complemented by a burgeoning number of

statutory and tort claims under federal and state law. To establish

liability, litigants have deployed the federal Resource Conservation

and Recovery Act (RCRA) and Comprehensive Environmental

Response, Compensation, and Liability Act (CERCLA). Even

though the EPA has not established any enforceable standards for

PFAS, federal statutes can still be used to impose liability for

remediation of PFAS contamination. PFAS contamination has also

been challenged under the traditional toxic tort rubric. Plaintiffs

alleging contamination have argued that businesses manufacturing

or disposing PFAS knew or should have known that their PFAS-

related activities were potentially hazardous to human health and

the environment. Considering the numerous, difficult evidentiary

issues at play with PFAS, the variety of toxic tort claims available in

PFAS litigation will magnify the difficulties for businesses named in

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