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Maine Considers Landmark PFAS Statute of Limitations Bill (1)

July 27, 2020, 3:28 PM; Updated: July 27, 2020, 4:39 PM

A Maine legislative committee on Tuesday will discuss a bill to clarify the state deadline for filing personal injury or property damage claims stemming from so-called “forever chemicals.”

If the bill became law, it would be among the first—possibly the first—in the nation to address how a state’s statute of limitations applies to per- and polyfluoroalkyl substances, or PFAS, according to an attorney and two organizations tracking state chemical laws.

People currently may not be able to seek damages because Maine’s statute of limitations is ambiguous about the deadline for filing suits, said Susan Faunce, an attorney with Berman & Simmons in Lewiston, Maine.

The two-sentence bill (L.D. 2160), which Maine Legislature’s Committee on Judiciary is set to discuss, states that civil actions asserting harm or injury from PFAS “must be commenced within six years after the date the plaintiff discovers or reasonably should have discovered such harm or injury.”

Lawyers who represent individuals whose health or property has been damaged by these chemicals will be tracking Maine’s legislation, said Esther Berezofsky, a Motley Rice LLC attorney who represents PFAS litigants in other states.

Different jurisdictions vary significantly on the deadline for filing damage lawsuits, she said.

Damage Years Before Discovery

“Under current Maine law, individuals, businesses, farms, and municipalities affected by PFAS contamination may be prevented from seeking a civil remedy,” according to the bill’s sponsor, Rep. Henry Ingwersen (D).

PFAS may have been spread on fertilized land, migrated into water, and gotten into crops, farm animals, or people decades before individuals or property owners became aware of the contamination and its harms, Ingwersen said.

Water utilities would generally be exempted because they’re typically run by municipalities, he said. But people could challenge chemical manufacturers that, based on Environmental Protection Agency and other documents, had information alerting them to the chemicals’ problems and kept that under wraps, Ingwersen said.

Faunce said the current law states claims for damages must be filed six years from when the time the contamination “accrued,” or occurred. But it’s unclear whether that’s within six years of the PFAS being spread on land, for example, or six years after damaging amounts of the chemicals are discovered, she said.

Chemicals Last Decades

There are thousands of PFAS with varied characteristics. Some—particularly older ones that states are finding in drinking water sources, near military bases and industrial sites, and elsewhere—persist for decades. Sunlight, water, and microbes don’t break them down.

These concerning forms of PFAS linger in human and animal bodies for years.

They also increase the chance of health problems such as increased cholesterol, decreased vaccine effectiveness, increased high blood pressure in pregnant women, and cancer, according to a Centers for Disease Control and Prevention agency.

Emergency Bill

The Maine legislation would implement a recommendation that the state’s PFAS Task Force made in a report in January. Republican and Democratic legislative leaders agreed to allow the bill to be heard as an emergency measure, Ingwersen said.

A driving force behind that effort, and the state task force and bill, is a desire to help state residents such as dairy farmer Fred Stone, he said.

Fred, 64, and his wife, Laura Stone, 63, have hardly earned any income from their dairy since late 2016, when the levels of two particular PFAS, perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA), were discovered to exceed the federal EPA’s health advisory. The state later found the chemicals on the farm, and other tests showed they were in the herd’s milk.

Stone said he’s paid about $250,000 in various attempts to rectify the problem.

Even if Ingwerson’s bill becomes law, there may not be a lot of time for Stone to file a case and seek reparation, the state representative acknowledged.

Other Farms

The Maine Department of Agriculture, Conservation and Forestry announced July 24 that another farmer, whom it didn’t identify, can no longer sell milk, meat, or any beef-related products due to PFOS contamination.

And Dan White, who moved with his family to Maine five years ago to raise their own meat and grow their own food, can no longer do that due to PFAS discovered last year in the family’s well, he said. White said he spent $11,000 and many hours installing a water filtration system.

Ingwersen said more people, businesses, and municipalities are going to learn about PFAS damage if the state follows other task force recommendations and carries out more inspections.

Revising Maine’s current law won’t guarantee anyone success in proving damages, said Faunce, who represents Stone and plans to file a lawsuit on his behalf. But the bill would allow access to the court, she said.

‘Path for Recourse’

The bill would help provide justice for people like Stone, the other dairy farmer, and others; people “who did nothing wrong had their livelihoods ruined, their health ruined, and don’t have a clear path for recourse,” said Patrick MacRoy, deputy director of the Environmental Health Strategy Center, in Portland, Maine.

“I don’t know if we can ever be made whole. I owe a lot of money,” Stone said last week. The loans he’s had to take out over the years were based on the value of his dairy and land, which is now “worthless.”

Right now, “if you find this contamination on your property, you have a big problem and there’s no redress; you’re shit out of luck,” Stone said.

To see the latest updates on state-level PFAS regulations and legislation, check out Bloomberg Law’s PFAS State Activity Tracker here.

(Additional information about the parties that could be sued added in paragraph nine.)

To contact the reporter on this story: Pat Rizzuto in Washington at prizzuto@bloombergindustry.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergindustry.com; Renee Schoof at rschoof@bloombergindustry.com; Anna Yukhananov at ayukhananov@bloombergindustry.com

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