Sidley Austin, LLP
Samuel B. Boxerman and Aaron L. Flyer
January 21, 2020
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.