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Lawyer suing over 'forever chemicals' says EPA plan gives plaintiffs a boost

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Headquarters of the United States Environmental Protection Agency (EPA) in Washington, D.C., U.S. REUTERS/Andrew Kelly

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  • Guilday Law's Ralph DeMeo says proposed designation of PFAS as a hazardous substance would strengthen lawsuits, 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 dubbed "forever chemicals" 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 associated some PFAS with illnesses such as kidney cancer.

Monday's plan proposes to limit their release in the environment by setting federal enforceable limits in drinking water for the first time. It also seeks to facilitate their cleanup by designating certain PFAS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

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Reuters spoke with Ralph DeMeo, a shareholder at law firm Guilday Law in Tallahassee, Florida about the roadmap's potential ramifications in court.

DeMeo represents three Florida municipalities that are suing companies that sold them firefighting foam that contains PFAS. The municipalities allege in multidistrict litigation in Charleston, South Carolina that the companies knowingly contaminated their groundwater, soils and sediments.

The interview has been edited for length and clarity.

REUTERS: How might the designation of PFAS as a hazardous contaminant impact lawsuits over the chemical?

DEMEO: If the PFAS contaminants are designated as hazardous substances under CERCLA, it will absolutely strengthen the ability to hold potentially responsible parties like manufacturers financially accountable, which is where most of the litigation is right now.

The designation would add a significant cause of action: strict liability under CERCLA. There are limited defenses against this claim, namely act of God, act of war, act of a third party. And it's retroactive.

The lawyers' favorite part of all this is that there's a prevailing-party attorneys' fees provision for CERCLA cost-recovery actions. So if you win, you could potentially get your attorneys fees.

REUTERS: And what is the potential impact of enforceable PFAS limits in drinking water on lawsuits?

DEMEO: Other than designating PFAS as a hazardous substance under CERCLA, establishing a maximum contaminant level in drinking water under the Safe Drinking Water Act is potentially as big a game changer.

Right now, there's no PFAS drinking-water standard per se that's legally enforceable at the federal level. There's simply a health advisory. You can't really say that PFAS is harmful at this particular health-advisory level.

With enforceable limits, if you're over them, then there will be a determination that's already been made that that's an unacceptable level of risk. It's harder for defendants to argue it isn't a risk.

The CERCLA designation would also reinforce drinking-water claims, because if you designate PFAS as a hazardous substance under CERCLA, it's almost ipso facto indicating that it's hazardous to health. You'll still have arguments over what are the health risks, over the toxicology, but it puts a heavier burden on the defendants.

REUTERS: What timeline are we looking at, when it comes to the designation of PFAS under CERCLA?

DEMEO: There's still miles to go. It's probably a year or two away.

Read more:

Biden administration moves to curtail toxic 'forever chemicals'

EPA proposes first limits to PFAS in wastewater

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Our Standards: The Thomson Reuters Trust Principles.

Sebastien Malo reports on environmental, climate and energy litigation. Reach him at sebastien.malo@thomsonreuters.com

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