Per- and polyfluoroalkyl substances, commonly known as “PFAS” or “forever chemicals,” are a family of manmade chemical compounds that are highly resistant to heat, water, oil, and degradation. These properties led to their widespread use in products like Teflon, stain-resistant fabrics, firefighting foam, pesticides, and food packaging. Once released into the environment—whether through industrial discharges, sewage plants, or the use of firefighting foam—PFAS build up in soil and groundwater. They also accumulate and remain in the human body for long periods of time. PFAS exposure has been shown to lead to testicular, kidney, and thyroid cancer, as well as liver damage, skeletal issues, immune dysfunction, and impaired fetal development. PFAS are now recognized as a significant threat to human health and the environment and have been declared a statewide public nuisance in New Jersey.

There has been a flurry of PFAS litigation in recent years. Last week, a federal district court held that evidence of PFAS’ toxicity is not necessary to establish liability under New Jersey’s Water Pollution Control Act (“WCPA”). In that case, N.J. Dep’t of Env’t Prot. v. E.I. du Pont de Nemours & Co., 2025 U.S. Dist. LEXIS 105416, the New Jersey Department of Environmental Protection (“NJDEP”) brought a claim under the WPCA against several chemical manufacturers, alleging discharges of PFAS into the State’s waters from a wastewater treatment plant. Under the WCPA, it is unlawful to “discharge any pollutant” unless the discharge conforms with a New Jersey Pollutant Discharge Elimination System Permit (“NJPDES permit”). In preparation for a bench trial limited to determining liability, the Court considered whether evidence regarding PFAS’ toxicity should be admissible, despite the fact that the WCPA is a strict liability statute which prohibits the unpermitted discharge of any pollutant, regardless of whether the substance is hazardous or not.

The Court held that because a pollutant need not be hazardous to be actionable under the WCPA, evidence concerning PFAS’ toxicity is not relevant for establishing WCPA liability. However, the Court noted that such evidence might be relevant for NJDEP’s claim that the chemical companies violated the WCPA when they violated the conditions of their NJPDES permit by not taking “all reasonable steps to minimize or prevent any activity in violation of its permit which has a reasonable likelihood of adversely affecting human health or the environment.” What the chemical companies knew, or should have known, about the adverse effects of PFAS on human health or the environment, and what steps they took to mitigate that risk, will be relevant for that inquiry, which would be reserved for the damages phase of the case. The Court also held that it did not need to hear evidence on PFAS’ toxicity to “determine the seriousness of the violation” to calculate the penalty’s amount, because that inquiry occurs only after there has been a violation of the WPCA. Finally, the Court found that unless they could demonstrate that NJDEP either made an affirmative statement or through its conduct led the companies to believe that they could discharge PFAS into the State’s waters with impunity because PFAS is not toxic, this evidence was likewise not relevant for the defendants’ equitable estoppel claim.