The Drumbeat Of PFAS Litigation Is Getting Louder – Environmental Law

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May 25the, Massachusetts, filed a lawsuit against several companies that allegedly manufactured PFAS and/or aqueous film-forming foam. Massachusetts joins a number of other states that have already filed similar claims. In fact, Massachusetts brought the case to South Carolina, where multidistrict litigation related to PFAS is already underway.

The lawsuit asserts a number of different claims, including trespassing and nuisance, but its focus is really on product liability. FWIW, the MDL in South Carolina is captioned “Aqueous Film-Forming Foam (AFFF) Product Liability Litigation.” Although the lawsuit has been filed as a product liability case, the requested relief stems directly from a standard CERCLA or state superfund law lawsuit. Your first request for relief asks the Court to :

Hold Defendants responsible for all costs of investigating, cleaning up and removing, restoring, treating, monitoring, and otherwise responding to PFAS contamination resulting from Defendants’ AFFF Products so that contaminated natural resources are restored to their original condition, or are replaced by reasonably equivalent resources, and for all damages to compensate Commonwealth residents for the loss of use and value of these natural resources during all times of damage caused by PFAS and by orders that are necessary to provide full relief to address the threat of contamination to the Commonwealth….

So the question arises as to whether this case is really a product liability case or whether it is a Superfund case. I think one should consider the nature of the claim, rather than the compensation sought, and so I think this is a product liability case. Thus, it is more like the tort cases that have sought to impose liability on lead paint manufacturers than the Superfund cases that have sought to impose liability on companies that used PCBs.

Still, that just begs the question. Will the next wave of litigation be Superfund cases filed against thousands or tens of thousands? – from companies that used PFAS or products containing PFAS in any way? And if so, is that any way to structure a system to address PFAS contaminated sites?

I know how I would answer that question.

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