In recent years, PFAS water contamination has become a major health and environmental issue – and a regulatory and legislative priority – for water utilities across the country and specifically in the state of Maine. PFAS, a group of toxic chemicals, have been used in manufacturing products since the 1940s and are still found today in household items like non-stick pans.
As the number of Maine water utilities facing PFAS contamination has steadily grown, the heart of the challenge has become abundantly clear: if it can cost into the millions of dollars to treat PFAS and serve clean water, how do utilities cover that cost? To solve this problem, Maine utilities need to be aware of key legal milestones once PFAS is detected and understand which plan of action is most likely to result in recovered costs.
In this post, we share information about Maine’s PFAS regulation and what that means for utilities in the state, along with possible legal steps to take and how to take them.
What is the latest on PFAS Regulation in Maine?
Maine lawmakers have been active in addressing PFAS contamination. The state has set an emergency interim drinking water standard of 20 parts per trillion (ppt) for six types of PFAS. Maine's Department of Health and Human Services is required to set a maximum contamination level on or before June 1, 2024. The legislature also a) designated PFAS as a hazardous substance, b) regulated the discharges, manufacture, and sale of firefighting foam containing PFAS, and c) required testing of soil and groundwater at sites that spread sludge as fertilizer. Maine is the first on an international level to broadly ban all products using toxic PFAS, the first state to ban all toxic chemical flame retardants in upholstered household furniture, and the second state to ban toxic PFAS chemicals in food packaging. Additionally, Maine enacted a law that requires manufacturers of products containing intentionally added PFAS to notify the Maine Department of Environmental Detection of such products and uses, which went into effect on January 1, 2023. Needless to say, Maine is taking action.
How do all these state regulations and legislations impact Maine water utilities?
While the legislature’s actions are great in terms of taking concrete steps to curb the use of dangerous chemicals, the requirements mean that water industry leaders and water system operators face significant operational and legal challenges.
On the operational front, water managers are required to respond to testing orders to monitor the quality of their drinking water. If a test result exceeds the emergency interim drinking water standard (of 20 ppt), a water provider must continue to monitor quarterly until they implement treatment to reduce the contamination, and inform all users of the water system that PFAS has been detected.
This sets in motion a series of costly steps that can include shutting down water sources, purchasing water from alternative sources, and/or implementing a clean-up plan that often includes building an expensive new water treatment facility to remove the contaminants. The removal of these contaminants can quickly run into hundreds of thousands or millions of dollars. For some utilities, these unexpected costs could be catastrophic unless outside funding is secured.
Litigation trends to account for if my water source has PFAS
Systems that have detected PFAS in any of their sources should consider consulting with legal counsel to explore options that will protect the rights of the utility and hold manufacturers of products with PFAS responsible.
An experienced attorney should discuss how you have been impacted, and if there are any operational changes resulting from the contamination that have incurred costs. If there are, the firm will evaluate any relevant legal issues and begin to obtain necessary documents. If the water provider decides to go ahead with litigation, the lawyers will file a lawsuit and work with the water system staff to prepare the required documents for litigation.
Joining the current MDL-2873 is likely one of the faster routes to recovering costs if your water system has been polluted by PFAS. Proceedings are already underway for water providers, which effectively shaves off three years (the duration the MDL has already been pending) to settlement or trial verdict.
In addition to protecting the water system’s financial resources, pursuing legal action against the manufacturers demonstrates to your community that the water system is taking concrete steps towards providing safe drinking water without any financial burden on ratepayers.
What kind of questions should I ask if I’m considering taking legal action?
The first and most important question to ask is: Has the firm ever handled a case like mine before?
For example, our firm has represented more than 100 public entities, water systems, and other businesses in water contamination cases. We have decades of experience in environmental contamination litigation and as challengers to some of the largest corporations in the world. It is literally all we do.
The second question to ask is: how much will the firm charge me to recover damages from PFAS? You may assume all law firms charge by the hour, but many work on a contingency fee basis, like SL for example. This means that a fee is due only in case of a positive outcome. Typically, law firms that operate on a contingency basis also front the costs of collecting information and assembling testimony, saving you substantial upfront costs. In other words, the fee and cost reimbursement of filing the case is contingent on success.
What is a statute of limitations and should I be concerned about it?
The statute of limitations is the period of time in which you can file a suit. States have different rules around this. For example, Maine law allows six years after contamination is discovered, or reasonably should have been discovered, for lawsuits to be filed against parties potentially responsible for PFAS pollution (with some exceptions). If you are considering taking legal action, acting sooner rather than later may result in a more generous settlement and helps make sure that your suit is scheduled into busy court dockets as early as possible.
Maine leading the way for utilities across the country
Understanding PFAS legislation and possible impacts on water utilities is important for suppliers in Maine and across the country. In addition, PFAS water contamination is forcing countless providers to determine whether to take legal action based on resources, timeline, and representation. The state of Maine has been ahead of the curve in terms of taking legislative action, meaning Maine utilities have more requirements when it comes to treating PFAS — for now. As the EPA moves forward with PFAS regulation, more utilities will find themselves in the same boat.
To learn more about how regulation and the statute of limitations will impact your water system specifically, contact the SL Environmental PFAS team to schedule a free consultation here.