Federal Judge’s Comments In Willow Grove PFAS Case Suggest Time May Be Approaching When Pennsylvania (And Other States) Will Finally Deem These Chemicals “Hazardous Substances”

Fill the airplane with fire-fighting foam

Last week, Law360 reported on a hearing that occurred in the Federal District Court for Eastern Pennsylvania before Judge Gerald Pappert concerning PFAS.  The hearing concerned a motion to dismiss brought by the United States Navy of class action claims against it in two cases.  In each case, the plaintiffs sued the Navy demanding medical monitoring due to exposure to two PFAS compounds, PFOA and PFOS.  These two compounds are found in groundwater contaminated by the historical use of AFFF fire fighting foam by the Navy at the Willow Grove Naval Air Station in Montgomery County, Pennsylvania.  The two cases in question are Kristen Giovanni et al. v. U.S. Department of the Navy, case number 2:16-cv-04873, and Dorothy Palmer et al. v. U.S. Department of the Navy, case number 2:17-cv-00765.

The plaintiffs based their claim for medical monitoring of residents exposed to contamination (along with other potential claims) by referring to a Pennsylvania statute called the “Hazardous Sites Cleanup Act”, or HSCA.  Basically, this is Pennsylvania’s so-called “mini-Superfund” statute.  HSCA at the Pennsylvania state level is similar to Superfund or CERCLA at the federal level in that before HSCA claims even can be pursued, HSCA requires that the particular contaminant which is the source for the claim be designated as a “hazardous substance” under Pennsylvania’s Solid Waste Management Act (SWMA). To date, neither PFOA nor PFOS has been so designated.

While Judge Pappert has not yet ruled on the issue, the Law360 article contains strong quotes from last week’s hearing in which the Judge appears to be skeptical that a claim for HSCA-based medical monitoring can be sustained in Pennsylvania in the absence of a “hazardous substance” designation, either legislatively or regulatorily.  The following quote from Judge Pappert is highly instructive:  “This issue has been on the front burners in Pennsylvania for quite a while, I’m aware, but the General Assembly has to this point not addressed it.”  Judge Pappert then added, “I can’t rely on a law which doesn’t say what your claim needs it to say. Isn’t your remedy in Harrisburg?”

Based on those quotes, it is highly probable that Judge Pappert will not allow the plaintiffs’ medical monitoring claims to proceed unless one of two things happen.  Either the Pennsylvania Legislature must add PFOA and PFOS to that State’s “hazardous substances” list legislatively, or the Pennsylvania Department of Environmental Protection (PADEP) must do so from a regulatory capacity.  In Pennsylvania, the PADEP also has jurisdiction to so designate.

Neither of these two actions would be likely to happen quickly – even if there were the political will in Pennsylvania to do so.  Both take time, which means that the Giovanni and Palmer cases may be headed toward dismissal by Judge Pappert, at least temporarily.  Alternatively, the Judge might  decide to hold them in abeyance to give State governmental authorities time to consider their options and react.

No matter what Judge Pappert rules, it is likely to sharpen the highly charged emotions surrounding the Willow Grove PFAS contamination.  Unlike many other locations in Pennsylvania and indeed around the world where PFAS either currently remains an abstraction or PFAS concerns are just beginning to appear, the residents around the former Willow Grove Naval Air Station have been dealing with this issue for years.  The groundwater contamination already has resulted in public protests and other civilian unrest.

Outside of Pennsylvania, other states are moving on their own. For example, New Jersey already has made clear that it intends to move in this direction regardless of what happens in its neighbor Pennsylvania or nationally.

The predictable movement towards action by individual states is further bolstered by the inertia in Washington.  Neither the United States Congress nor the Environmental Protection Agency (EPA) has yet added substances like PFOA and PFOS to the federal hazardous substances list.  While bills have been introduced in Congress to do that, they have not progressed very far.

Should any compound make the federal Superfund list of “hazardous substances”, the effect would be significant.  First, liability for contamination would be strict, joint and several, without regard to fault, and with very few permissible defenses.  Second, similar liability would attach to most every state that has a separate mini-Superfund statute as well.

As PFAS concerns grow, it seems to be only a matter of time before PFAS substances like PFOA and PFOS wind up on both the federal list of “hazardous substances” and the separate lists of many states.  Therefore, all parties should act accordingly.

Contrary to what many property owners or PFAS dischargers think, there are options available to lessen both the scope and the likelihood of PFAS-related claims, or at least to minimize the costs and the potential health effects, ill will, bad publicity and other attendant issues.  These options should be taken carefully and proactively, and only after consultation with experienced professionals.

If you have questions on this blog post, please contact Marty M. Judge, or any member of the Flaster Greenberg’s PFAS Task Force.

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