Representatives of insurance companies and wastewater utilities testified against a proposal Tuesday that aims to give property owners in Maine more time to file lawsuits over contamination with so-called “forever chemicals.”
Tuesday’s legislative hearing came just four days after state agriculture officials announced that milk from a Central Maine dairy farm had “startling” levels of an industrial chemical linked to cancer, reproductive issues and other health ailments.
State officials said public health was never at risk because the small farm’s milk was diluted with milk from other sources during processing and bottling. But the Fairfield farm is the second dairy operation in Maine to be forced to shut down because of contamination with PFAS, a large family of chemicals used for decades in consumer products.
Lawmakers heard hours of testimony on a bill to give landowners, municipalities and other parties a six-year window to file a civil lawsuit after discovering contamination with PFAS, which is short for per- and polyfluoroalkyl substances.
Bill supporters contend the current law allowing lawsuits within six years of an “injury” is inadequate when dealing with chemicals that may have lingered in the environment undetected for decades.
“There need to be hurdles removed for citizens in Maine . . . looking for who is responsible for this, so Maine taxpayers aren’t paying the bill, so individuals aren’t paying the bill and so farmers aren’t going under with no recourse at all, which is what’s been happening,” Rep. Henry Ingwersen, D-Arundel, told members of the Legislature’s Judiciary Committee during a hearing held via video conference.
The proposal is one recommendation to emerge from a task force that met last year to explore issues surrounding highly persistent chemicals that are cropping up in groundwater supplies, sludge and food products nationwide.
But representatives for water and wastewater utilities – who have been unknowingly distributing PFAS-laced sludge to farmers for decades as fertilizer – asked that their industries be specifically exempted from liability because they had no control over pollution coming into their facilities.
“Although we’re not opposed to some language that would enable the statute of limitations to be expanded, we just want to make sure we are not caught up in that, where we are going to have to deal with litigation ourselves,” said Roger Crouse, general manager of the Kennebec Water District and chair of the Maine Water Utilities Association’s legislative committee.
Representatives for the Maine Association of Insurance Companies and individual insurers also cautioned lawmakers against creating financial liabilities that were never envisioned when policies and rates were established.
“Especially in instances like this, the cost of defending these claims could be extraordinarily significant,” said Bruce Gerrity, representing the American Property and Casualty Insurance Company and AIG Insurance. “(That) results in premium amendments and changes that have to be imposed on everyone, which is how you price insurance over time. It is a risk-spreading mechanism.”
First developed in the 1940s, the broad PFAS family now includes thousands of compounds used throughout consumer products because of their unique ability to repel grease and water. They can be found in non-stick cookware, water- and stain-repellent carpet and clothing, grease-resistant food packaging and the type of high-tech firefighting foams used at airports and military bases.
But the strong chemical bonds in the substances mean they do not break down easily in the environment or the body, hence the nickname “forever chemicals.” While manufacturers assert that newer varieties of PFAS are safe, the chemicals are coming under increasing health scrutiny.
PFAS pollution has emerged as an issue nationwide, particularly nearly military bases, airports and industrial facilities that used the chemicals during manufacturing. But Maine is among states exploring PFAS contamination on farms, potentially linked to the use of treated municipal sludge as fertilizer.
On Friday, the Maine Department of Agriculture, Conservation and Forestry announced that milk from an unnamed dairy farm tested between 12,700 and 32,200 parts per trillion for PFOS, a variety of the chemical no longer used in the U.S. because of its health impacts. The levels of contamination in milk from the farm – later identified as Tozier Family Farm in Fairfield – were 60 to 153 times higher than the 210 parts per trillion that the department considers milk too “adulterated” for sale.
Fred Stone, an Arundel farmer whose dairy operation has been shut down for more than three years because of PFOS contamination, testified in support of the bill to extend the statute of limitations. Stone has filed suit against several manufacturers of the PFOS that he believes was hidden in the sludge he used as fertilizer.
“This is a very emotional issue for me,” said Stone, who has estimated the contamination has cost his century-old farm more than $200,000 in un-recouped expenses. “My heart is broken, our lives are broken and our spirits are broken . . . I feel very badly for the people in Fairfield because the last three years have been a living hell. And if this what they have to look forward to, I am sorry.”
Supporters of the bill pointed out that more than 30 other states have similar statutes of limitation for civil lawsuits over pollution but that the proposal in Maine is even more limited because it applies only to PFAS.
Stone’s attorney, Susan Faunce with the law firm Berman & Simmons, also pointed out that Maine’s tort claims law grants general immunity from lawsuits to municipalities and quasi-municipal organizations, including water and sewer utilities. While there are exceptions to that immunity shield, Faunce suggested those are unlikely to apply to the type of PFAS cases likely to develop in Maine.
“I would further argue that this bill actually would help municipalities to bring forth claims against the responsible parties,” Faunce said. “I would hope taxpayers would want our municipalities to seek remedies against those responsible.”
The Maine Department of Environmental Protection submitted written testimony Tuesday that did not take a position on Ingwersen’s bill but laid out the Mills administration’s other steps to address PFAS.
The committee also didn’t hear from the companies that make PFAS or from manufacturers who use the chemicals in their products.
Some supporters, meanwhile, accused the chemical industry of knowingly covering up the health threats posed by older versions of the chemicals such as the PFOS found on the Stone farm and in Fairfield. Last year, the movie “Dark Waters” documented an attorney’s decades-long legal fight against DuPont, which used the chemicals in its Teflon brand of nonstick cookware.
Rep. Craig Hickman, a Winthrop farmer who co-chairs the Legislature’s Agriculture, Conservation and Forestry Committee, said the statute of limitations “for a forever chemical may need to be forever.”
“Because we are talking about a forever chemical, it seems to me there should be no statute of limitations on it because sometimes the harm is not discovered for decades,” Hickman said. “So for that reason we may want to be bold.”
The committee will hold a work session on the bill on a future date.
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