For years almost 2000 plaintiffs have been litigating in Federal Court in South Carolina against dozens of manufacturers and distributors of fire-fighting aqueous film-forming foams (AFFFs) that contain perfluorooctanoic acid (PFOA) and/or perfluorooctane sulfonate (PFOS), the very same "forever chemicals" (among hundreds of others collectively known as PFAS) that EPA has now said it will add to its list of "hazardous substances" covered by CERCLA, the Federal Superfund law.

The plaintiffs in the South Carolina case allege that these PFAS in AFFF contaminated groundwater around the country causing personal injury, property damage and other losses.

The South Carolina Judge was about to decide which of the scores of cases pending before him would be tried first after years of discovery and pre-trial skirmishes..

Now the Department of Justice has told the Judge what we all already knew. The addition of these PFAS to the "hazardous substances" list, likely by the end of the year, is going to give EPA and other would be plaintiffs a tried and true means of recovering "response costs" from those responsible for the release of these "hazardous substances" without regard to what they knew or should have known about those releases. And EPA's identification of these PFAS as "hazardous substances" will simplify what other plaintiffs need to show to recover for their losses, including personal injuries.

The American Chemistry Council says the "significant impacts and the tremendous costs to multiple entities" of listing these PFAS as "hazardous substances" means that EPA should hold off until it does a "comprehensive assessment of potential costs and benefits". I don't think that view will prevail.

This much is certain. Had EPA been able to do what it has now done faster (and, to be clear, the pace at which EPA has moved during the Biden Administration is astounding), the litigation now in its fifth year in South Carolina would have looked much different.

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