California Sues Alleged Makers of PFAS for Hundreds of Millions of Dollars | Nossaman LLP

On November 10, 2022, California Attorney General Rob Bonta announced that he had filed a lawsuit against 3M, DuPont and sixteen other companies for their role in the manufacture of per- and polyfluoroalkyl substances (PFAS). The lawsuit seeks damages, which could run into the hundreds of millions of dollars, for damages, penalties and restitution, as well as injunction and abatement. Some consider the lawsuit to be the broadest of its kind brought by a state.

PFAS is an umbrella term that covers dozens of types of synthetic chemicals. PFAS have been used for a variety of purposes, including in nonstick cookware and fire-fighting foam, although their use has been voluntarily phased out by companies in the United States over the past 20-25 years. Despite this fact, PFAS, also known as “eternal chemicals” due to their resistance to breaking down naturally in the environment or the human body, remain ubiquitous throughout California, especially in its sources of water, and in the rest of the United States.

The complaint addresses seven common PFASs, including PFOA and PFOS, which are two of the most common and well-known examples of PFASs. It alleges that the defendants “knew or should have known that PFAS were toxic and harmful to human health and the environment, but they continued to produce PFAS and/or products containing PFAS.” The complaint includes six causes of action against all defendants – public nuisance, equitable relief, strict product liability (failure to warn and defective and ultra-hazardous product), illegal business practices and negligence per se – as well as a cause of action against the Dupont defendants specifically for fraudulent conveyance. It also seeks twelve different types of relief, including a requirement that defendants “reduce the public nuisance of PFAS, including by establishing a reduction fund to investigate, remove, treat, remediate, clean up, and otherwise mitigate PFAS contamination by California” and compensatory damages to cover “damage to water, wildlife, and other natural resources in California, including, but not limited to, the costs of remediation and treatment of PFAS and damage to natural resources”.

In his office’s press release on the lawsuit, Attorney General Bonta accused the defendants of a “decades-long campaign of deception” and said that “the damage caused by 3M, DuPont and other manufacturers of PFAS are simply amazing.” In response, 3M said it had “acted responsibly with respect to products containing PFAS and will defend its record of environmental stewardship.” DuPont responded by stating that the company should not have been named in the lawsuit, stating, β€œIn 2019, DuPont de Nemours was created as a new multi-industry specialty products company. DuPont de Nemours has never manufactured PFOA, PFOS or fire fighting foam. While we do not comment on pending litigation, we believe such complaints are without merit, and the latest example of DuPont de Nemours being wrongly named in litigation.

The California lawsuit is the latest development in the PFAS landscape. Other states have sued manufacturers, including Minnesota, which reached a $3 million settlement with Minnesota-based 3M in 2018. State agencies in California have taken some regulatory action. or PFAS surveillance and the state has also taken various other measures.

As of now, however, the Federal Environmental Protection Agency has taken the lead. Earlier this year, it issued new health advisories for certain PFAS, including PFOA and PFOS. Rules are also being developed to list PFOS and PFOA as hazardous substances under the Global Environmental Response, Compensation and Liability Act (commonly known as the Superfund Act), which could have important ramifications.

The California lawsuit, along with other state and federal actions, shows that PFAS will likely continue to be a high priority in water and environmental law for years to come.

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