- Ralph DeMeo of Guilday Law said the proposed designation of PFAS as a hazardous substance would strengthen lawsuits and add strict liability claims
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(Reuters) – The Environmental Protection Agency on Monday released a three-year roadmap to limit environmental contamination involving a family of man-made chemicals known as polyfluoroalkyl and perfluoroalkyl substances, or PFAS.
PFAS have been nicknamed âchemicals foreverâ because they don’t break down easily. They have been used for decades in household products such as non-stick cookware, stain and water resistant textiles, and in industrial products. But scientists have linked some PFAS to diseases such as kidney cancer.
Monday’s plan proposes to limit their release to the environment by setting binding federal limits for drinking water for the first time. It also aims to facilitate their clean-up by designating certain PFAS as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).
Reuters spoke with Ralph DeMeo, a shareholder in Guilday Law law firm in Tallahassee, Fla., About the potential ramifications of the roadmap in court.
DeMeo represents three Florida municipalities that are suing companies that sold them fire fighting foam containing PFAS. The municipalities allege in a multi-district litigation in Charleston, South Carolina, that companies knowingly contaminated their groundwater, soil and sediment.
The interview has been edited for length and clarity.
REUTERS: How might the designation of PFAS as a hazardous contaminant impact legal proceedings regarding the chemical?
DEMEO: If PFAS contaminants are designated as hazardous substances under CERCLA, it will absolutely enhance the ability to hold potentially liable parties like manufacturers financially responsible, which is the case with most litigation at this time.
The designation would add an important cause of action: strict liability under CERCLA. There are limited defenses against this claim, namely force majeure, act of war, act of a third party. And it’s retroactive.
The lawyers’ favorite part about all of this is that there is a party lawyer fee provision in effect for CERCLA cost recovery actions. So if you win, you could potentially get your attorney fees.
REUTERS: And what is the potential impact of the applicable limits of PFAS in drinking water on lawsuits?
DEMEO: In addition to the designation of PFAS as a hazardous substance under CERCLA, establishing a maximum contaminant level in drinking water under the Safe Drinking Water Act has the potential to be a game-changer.
At present, there is no PFAS standard on drinking water per se that is legally enforceable at the federal level. It is simply a health advisory. You can’t really say that PFAS is harmful at this particular level of health advice.
With enforceable limits, if you go over them then there will be a decision that has already been made that this is an unacceptable level of risk. It is more difficult for the accused to say that it is not a risk.
The CERCLA designation would also strengthen the drinking water claims, because if you designate PFAS as a hazardous substance under CERCLA, that almost ipso facto indicates that it is hazardous to health. You will always have arguments about the health risks, about toxicology, but that puts a greater burden on the accused.
REUTERS: What timeline do we envision for the designation of PFAS under CERCLA?
DEMEO: There are still miles to go. It’s probably a year or two away.
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