As discussed last week, the U.S. House of Representatives recently passed a bill designating specific per- and polyfluoroalkyl substances (PFAS) — perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) — as “hazardous substances” under the federal Comprehensive Environmental Response Compensation and Liability Act (CERCLA). But unless and until the designation becomes federal law, the viability of PFAS-related cleanup claims under state law depend on whether the individual state has designated PFOA and PFOS as hazardous. Last week, in Giovanni, et al. v. Department of the Navy, the U.S. District Court for the Eastern District of Pennsylvania dismissed a case bringing a claim under Pennsylvania’s Hazardous Sites Cleanup Act (HSCA) for alleged PFOA and PFOS contamination from facilities owned and operated by the U.S. Navy. The court found that the plaintiffs could not maintain their claim because these substances have not been designated as hazardous by either the federal or state government, as required by HSCA.
A case recently filed in Michigan state court may raise a similar question. There, the state of Michigan filed a suit alleging a number of claims related to alleged PFAS contamination across the state, including a claim under Part 201 of Michigan’s Natural Resources and Environmental Protection Act, the state’s CERCLA analog. Though PFOA and PFOS are not listed as hazardous substances under CERCLA, Michigan promulgated PFOA and PFOS drinking water standards in 2018, and the state claims that these standards establish that the substances “pose an unacceptable risk to the public health, safety, or welfare, or the environment,” which is required for alleged contamination to become subject to the requirements of Part 201.