Thursday, October 4, 2018

Court rules Navy can be sued for PFAS claims



After two years of court losses, a federal appeals court ruling poked holes in a federal immunity defense as local residents seek to sue over local water contamination.
Kyle Bagenstose reports for the Bucks County Courier Times
A federal appeals court in Philadelphia ruled Tuesday that Bucks and Montgomery County residents can proceed with claims over water contamination near area military bases, reversing two years’ worth of legal setbacks and what had looked like a watertight immunity defense for the U.S. Navy.
“I think it’s a very important principle for holding the government accountable for its pollution,” said Mark Cuker, an attorney with the Cuker Law Firm and counsel for the Giovanni family of Warrington.
A trio of justices on the court of appeals for the Third Circuit were tasked with deciding the fate of two similar cases, each of which requested the Navy provide for medical monitoring for the plaintiffs, who allegedly had been exposed to toxic perfluorinated chemicals, or PFAS, in their drinking water. The chemicals are ingredients of firefighting foams that were used for decades at a trio of current and former military bases in the area, and eventually contaminated the water of approximately 70,000 residents in Warminster, Warrington and Horsham. The towns have since worked to purify their water of the chemicals.
The cases, one filed in the summer of 2016 and the second a year later, also sought a large-scale health study that would assess whether the chemicals caused unusual amounts of illness in the affected communities.
The Navy’s attorneys had early success arguing against the suits, first pulling them from county courts into U.S. District Court in Philadelphia. They then successfully argued that the country’s Superfund law shields them from having to take any such action until a site is cleaned up, leading to a dismissal last December.
“The (district) judge said that under the Superfund law, you can’t sue for blood testing or a health study until clean-up is complete,” Steven Angstreich, a partner at Philadelphia’s Weir & Partners and counsel for Ivyland’s Palmer family, said following the dismissal.
Cuker and Angstreich appealed and in April argued their case before the appellate judges. On Tuesday, the court ruled and reversed the district court’s dismissal, but only in part: The claim for medical monitoring could proceed, but the claim for the health study could not.
The justices determined that while the Superfund law says the military has full control over the cleanup process and cannot be sued to change course, residents can pursue funding for a private medical monitoring program. But because the federal government has formal mechanisms by which it can conduct a health study if it decides to, residents cannot sue to force the government to take that action.
The court further ruled against the Navy’s claims that it has “sovereign” immunity against being sued unless it consents to be sued. The justices cited a section of a federal environmental law they say waives such immunity and requires each federal agency “Be subject to, and comply with, all Federal, State, interstate, and local requirements.”

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