United States: PFAS litigation escalates as state hires private law firm
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As scrutiny of per- and polyfluoroalkyl chemicals (PFAS) increases, increased regulation and enforcement appear imminent, as does a series of lawsuits against companies believed to be responsible for releasing the compounds into the environment.
PFAS chemicals include over 4,000 different chemical compounds and are widely used in everyday products, including stain and water resistant fabrics and carpets, cleaning products, kitchen utensils, paints and fire-fighting foams. There is growing concern about the potential health effects of a small subset of PFAS compounds. Two of the most concerning – PFOA and PFOS – are no longer manufactured in the United States. However, the compounds are slow to decompose in the environment and can still be detectable in many places.
On Wednesday, August 25, Gov. Tony Evers and Attorney General Josh Kaul announced that Wisconsin had hired a San Francisco-based law firm specializing in high-impact, high-value environmental cases, in a bid to hold for those responsible for the release of PFAS into the environment.
As we reported in August 2020, the Wisconsin Department of Natural Resources (DNR) sent over 3,000 letters to responsible parties (PRs) involved in the cleanup of Wisconsin remediation sites, explaining the interpretation by the DNR of laws and regulations pertaining to remediation sites, and insisting that PRs assess emerging contaminants such as PFAS.
Additionally, earlier this year, we also reported that MNR released a list of companies targeted for PFAS testing, which included 39 industrial facilities, encompassing many of Wisconsin’s largest food manufacturers and producers. Unlike previous MNR initiatives on PFAS, the testing was not voluntary. MNR has required companies to allow sampling and analysis of more than 30 PFAS compounds despite the fact that there are no applicable standards.
The DNR’s approach has raised concerns with companies in Wisconsin, as the agency has not explained whether or how it will incorporate background or uptake levels of PFAS, or how it intends to identify the sources of any contamination. discovery. Now, these concerns will be magnified by the potential for tort claims filed by the state-hired private law firm.
In March 2020, Wisconsin Manufacturers & Commerce (WMC), the state chamber of commerce, filed a lawsuit in an attempt to stop the PFAS sampling program offered by MNR at specific facilities selected by the agency. The case is still pending, but in recent files, the MNR has asserted that it has the authority to test PFAS and prosecute licensees who release PFAS into the environment. It remains to be seen whether the DNR will coordinate with the cabinet hired by the state to step up legal proceedings against companies suspected of being responsible for the PFAS contamination.
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