CMBG3 PFAS Team Attends Webinar On PFAS Liability For Water Suppliers & Municipalities

by | Jun 17, 2020 | PFAS | 0 comments

On June 17, 2020, CMBG3 PFAS team member Jessica Deyoe, Esq. attended a three hour webinar hosted by the Environmental Business Council of New England, which was entitled “PFAS Liabilities for Water Suppliers and Municipalities: Perspectives on Risk Management and Legal Developments.” The webinar was attended by experts on PFAS litigation and regulations, and was replete with valuable PFAS-related information.  We encourage you to contact Attorney Deyoe to discuss the webinar in detail; however, some of the key takeaways from the webinar that we wanted to share were:

PFAS Regulations

  • Federal
    • The EPA is developing a proposed rule to require monitoring for more PFAS compounds for the next Unregulated Contaminant Monitoring Rule (UCMR) cycle. The monitoring provides the EPA and other interested parties with nationally representative data on the occurrence of contaminants in drinking water, the number of people potentially being exposed, and an estimate of the levels of that exposure. These data can support future regulatory determinations and other actions to protect public health.
    • 70 part per trillion (ppt) PFAS advisory level is in place
  • States
    • High profile incidents in states, such as Hoosick Falls, NY, have led to more stringent state drinking water standards.
    • States have begun designating PFAS as “hazardous substances” or “hazardous materials” in accordance with their own site cleanup programs.
    • Market driven shifts: consumers are more aware of PFAS and are demanding PFAS-free products. Substitutes will gain attention commercially by consumers and environmentally to ascertain risks posed.

PFAS Litigation Developments

  • Types of PFAS cases seen thus far:
    • Property damages
    • Personal injury/medical monitoring
    • Class actions
    • Enforcement actions
  • Water municipalities are in a unique position such that in some cases they will be plaintiffs and in others they will be defendants
  • Municipal considerations
    • Identify sources of PFAS (manufacturer, landfills, wastewater treatment plants, fire departments, training centers, airports, etc.)
  • Identify sensitive receptors. Are they at risk? (public/private water supplies, landfills, wastewater treatment plants)
  • Take action to correct discovered issues now before you find yourself involved in litigation
  • Sovereign immunity considerations
    • Varies state by state – no one definitive answer nationally
    • Magliacane v. City of Gardener (MA, 2020)
      • Claims against municipality for corrosive water supply damaging heating coils in hot water heaters
      • Court rejected sovereign immunity argument, finding claims associated with City’s supply of water covered by Tort Claims Act
  • Medical monitoring established in PFAS cases:
    • Sullivan c. Saint-Gobain (VT)
      • Even absent physical injury, claim for remedy of medical monitoring permitted
    • Lindsey v. 3M Co. (AL)
      • Dismissed any claim for medical monitoring without a manifest, present injury
    • Benoit v. Saint-Gobain (2d Cir.)
      • Medical monitoring claims survived as elevated PFAS levels in blood serum sufficient physical injury

PFAS CERCLA Liability

  • EPA has indicated its intent to add PFOA and PFOS to the CERCLA list of hazardous substances. If added, the EPA will be able to recover cleanup costs from responsible parties, or force responsible parties to perform cleanup of the sites. Currently the EPA cannot due this because PFOA and PFOS fall within the contaminants/pollutants category under CERCLA.
  • Five-year reviews are generally required by CERCLA, and we can expect that PFAS will be addressed at these.

CMBG3 Law is following judicial, legislative, and administrative developments relating to PFAS. More information about the services we can provide to ensure your business is ready for any intersection with these substances can be found on our PFAS Litigation page.

Our attorneys have been at the forefront of PFAS issues, including giving presentations as to the future waves of litigation stemming from PFAS issues. For more information, please contact any of our PFAS – Toxic Torts Team: Jessica Deyoe, Suzanne Englot, Alexandra Fraher,or John Gardella.

For more information about this very valuable webinar on PFAS, please contact Jessica Deyoe, Esq.

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