In March 2023 the Environmental Protection Agency’s (EPA) proposed maximum contaminant levels (MCLs) for Perfluorooctanoic acid (PFOA) and Perfluorooctane sulfonate (PFOS) – two common types of per- and polyfluoroalkyl substances (PFAS) – at 4 parts per trillion (ppt). The EPA also proposed to regulate four other PFAS – PFNA, PFHxS, PFBS, and GenX Chemicals – as a mixture. Public water systems across the country will have to monitor for these PFAS substances and respond if concentrations are found in excess of these levels by either taking the contaminated sources out of service or treating the contaminated water. PFAS is so ubiquitous that water systems that test for it tend to find it. As water providers across the nation discover these contaminants in relative unison, the demand for treatment technologies and infrastructure upgrades are likely to rise.
Water providers have played no role in producing PFAS, yet they are the ones who are facing the burden of removing these contaminants from their water supply. There is evidence that the manufacturers of PFAS knew that they caused harm when used as intended but did not warn consumers of the risk. Product liability law is meant to protect consumers when products do not perform the way they expected, or when manufacturers fail to provide warnings of risks of their products that the manufacturers know or should know about. What this means for water suppliers is that they may be able to obtain reimbursement for costs related to the clean-up of PFAS contamination from the manufacturers of these chemicals.
Consider Joining a Current Multidistrict Litigation
Already over 2,000 plaintiffs have joined a multidistrict litigation (MDL) for aqueous film-forming foams (AFFF) used in fire extinguishing. AFFF contains two of the most common forms of PFAS, PFOA and PFOS. MDLs are used to coordinate complex litigation filed in multiple federal district courts involving common questions of fact. By consolidating the discovery and pretrial motions, both sides save time and money. The benefit for plaintiffs is that attorneys can pool their resources and coordinate efforts. If the initial cases (called “bellwether” cases) are resolved in favor of the plaintiffs, it often results in a domino effect of settlements for the remaining cases. Typically, the presiding judge will try to steer the parties toward an agreeable resolution with a national settlement. As such, the majority of plaintiffs do not go through the standard rigor of an independent lawsuit, which makes this legal route attractive to so many municipalities who just don’t have the resources to take on a big corporate polluter.
While there are several categories of plaintiffs in the MDL, the court has selected the water provider cases as the source of the first bellwether trial. The bellwether trial, City of Stuart v. The 3M Company, et al., is expected to be heard in the United States District Court for the District of South Carolina in June 2023.
With proceedings already underway for water providers in the MDL and the bellwether trial set to start in just a few months, now is a good time for water providers considering litigation to join. The process to join is relatively straightforward and some law firms, like SL Environmental Law Group PC, will work on a contingency fee basis. This means the fee is set at the beginning and is only due when the case achieves a favorable result – this includes costs like court filing fees, deposition transcription fees, and hiring and experts witness fees.
Get a Legal Opinion Sooner Rather than Later
Lawsuits are subject to statutes of limitations – a time limit that applies to every legal claim. Outside of special circumstances, claims cannot be brought after the statute of limitations has run out, no matter how valid—or valuable—they are. While the calculation of a statute of limitations varies from jurisdiction to jurisdiction, for many water providers generally they begin once the discovery of the contaminants has been identified in the water supply or when the provider takes some action in response to the awareness of the contaminant. Therefore, it is recommended that water providers contemplating litigation speak with an attorney that specializes in water contamination and has expertise in PFAS litigation.
Over the past two decades litigation has helped expose not only the dangers of these chemicals but how much the manufacturers knew and withheld about those dangers, resulting in a growing number of plaintiffs filing suit. Unless the manufacturers responsible for this pollution are held accountable, the billions of dollars to clean the contaminated water will be a burden borne by rate payers, who have also likely been exposed to the toxic chemicals.
For more information contact www.slenvironment.com
Author: Ken Sansone – Attorney at SL Environmental Law Group
