The proposed amendment to NY law establishes a right to contribution for cost-recovery claims for settling parties in tort actions who clean up PFAS contamination.
Per- and polyfluoroalkyl substances ("PFAS") are synthetic chemicals with wide commercial and industrial applications, including firefighting foams, greaseproof food wrapping, nonstick cookware, water-repellent fabrics, carpets, and textiles.
On March 16, 2023, the New York State Assembly proposed an amendment to General Obligations Law §15-108 that would allow settling parties who incur cleanup costs for PFAS to seek contribution for those costs from other potentially responsible parties. In the absence of amendment, §15-108 prohibits a settling party from either suing or being sued for contribution.
The NY Legislature noted that although the stated purpose of §15-108 is to encourage settlement, in practice, §15-108's contribution bar discourages tort settlements in the environmental cleanup context and causes confusion when suits assert state law as well as federal Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA") causes of action.
Under CERCLA, also known as "Superfund," parties who settle federal claims involving the cleanup of "hazardous substances" can sue other potentially responsible parties for those parties' portion of the cleanup costs. But because PFAS are not defined as "hazardous substances" under CERCLA and many PFAS-related suits are brought by local governments on state law tort theories, parties who incur PFAS-related cleanup costs in New York may be limited to the contribution remedies provided by state law.
To address this tension, the proposed amendment to §15-108 adds an additional subdivision (e) exempting from that statute's contribution bar parties who clean up and settle PFAS-related tort actions. Legislators believe that, if enacted, this amendment would bring New York's tort contribution scheme in line with CERCLA, and allow settling parties who front the costs for PFAS-related cleanup to sue other responsible parties for their share of the costs.
The proposed amendment was referred to the NY Assembly's Judiciary Committee. If enacted, this amendment would be effective immediately and would apply to all pending New York tort claims involving PFAS cleanup.
