California has not experienced the type of willful, large-scale PFAS pollution that states that hosted its manufacture, such as Ohio and West Virginia, have endured. Regardless, the ubiquity of these chemicals in California’s food and water supply, combined with a growing awareness of the serious health risks of PFAS exposure, prompted California to become a nationwide leader in PFAS regulation. In 2017, the California Office of Environmental Health Hazard Assessment (OEHHA) “added PFOA and PFOS to the Proposition 65 list of chemicals known to the state to cause reproductive toxicity” without setting a “maximum allowable dose level, below which no Proposition 65 warning is required.” California then passed A.B. 756 in July 2019, which empowered the State Water Resources Control Board (SWRCB) to force public water suppliers (PWS) to monitor for PFAS compounds. The SWRCB has since set the strictest monitoring levels for PFOA and PFOS in the nation. With more research being done on the adverse health effects of exposure to these chemicals, there is a growing possibility that PWSs with contaminated water sources may be exposed to toxic tort suits brought by consumers.
The first section of this Article will discuss the physical and environmental properties of PFAS compounds and current research into their toxicity, while the second section will discuss pre-A.B. 756 efforts by the federal government and California to regulate PFAS. The third section will analyze the provisions of A.B. 756. The fourth section will then apply the landmark toxic tort recovery framework from Potter v. Firestone Tire & Rubber Co. to explore the viability of potential toxic tort claims against PWSs, such as negligent infliction of emotional distress and fear of cancer, as well as the defense of sovereign immunity. The fifth section will discuss final thoughts on the viability of implementing A.B. 756.
There’s Something in the Water: Toxic Exposure Liability of Public Water Suppliers in the Face of Near-Universal PFAS Exposure,
San Diego J. Climate & Energy L.
Available at: https://digital.sandiego.edu/jcel/vol12/iss1/7