Should NH give Granite Staters more time to file PFAS lawsuits?

PFAS may be called “forever chemicals” but you only have three years to file a lawsuit after discovering you were harmed by PFAS. A bill in the New Hampshire Legislature would double that time limit, potentially opening the door to more PFAS-related claims.

A (non)sticky situation

Perfluoroalkyl and polyfluoroalkyl substances (PFAS) are chemicals used to make everything from nonstick pans to firefighting foam to Gore-Tex. PFAS does not easily break down in the environment, which means it accumulates in soil, water, and the human body. The harms of this accumulation are not yet fully understood, but there is mounting evidence that PFAS can lead to reproductive disorders, liver damage, thyroid disease, cancer, and many other health problems.

In recent years the New Hampshire Department of Environmental Services set strict limits for PFAS in public water. Last year the state Legislature put these limits into state law.

There are several sites of significant PFAS contamination in New Hampshire, including the area around Saint-Gobain Performance Plastics in Merrimack and the Pease Tradeport in Portsmouth. These sites have prompted various lawsuits and legislative proposals to determine who should pay for new water treatment systems, temporary bottled water replacements, medical bills, and more.

Give residents more time to sue?

Under current state law, a person harmed by PFAS contamination has three years to file a lawsuit after discovering the harm. This three-year statute of limitations generally applies to all personal injury lawsuits in New Hampshire.

HB 236 would create a new statute of limitations specifically for lawsuits related to PFAS exposure. Granite Staters would be able to file lawsuits within six years of discovering they were harmed by PFAS.

Supporters argue that the state needs to give residents more time to sue because the harms of PFAS can take years to manifest and still are not fully understood.

At a bill hearing on May 11, Rep. Suzanne Vail (D-Nashua) testified:

“We need more time to calculate the scope of the harm that has been done to townspeople, and to address the impact on specific vulnerable groups, such as elderly, children, pregnant women and women who are nursing. This is particularly important because of the latency of the illness onset. We need to identify victims and get a sense of the scope of the problem in all of New Hampshire. We need to protect municipalities from bearing the cost of the health effects of industrial pollution. And we need to delineate a true zone of contamination defined by a perimeter of wells that are clear of the toxic levels of PFAS within the current allowable maximum contaminant levels that we’re working with right now. We need to provide vital education to citizens and medical providers.”

Keep the three-year standard?

David Creer, Director of Public Policy at the Business and Industry Association, testified against HB 236 at the same public hearing. He argued that three years was standard and more than enough time for a person to file a lawsuit. After all, the statute of limitations clock does not start ticking until a person identifies an injury and links it to the cause. That means theoretically a person could discover an injury from PFAS two decades from now and still have three more years to file a lawsuit.

“There is no benefit to expanding this to six years,” said Creer. “It does signal to everyone in the State that we are trying to make it as hard as possible for businesses to do their business here.”

Some elected officials also question whether PFAS should be singled out in state law. Rep. Mark McLean (R-Manchester) wrote, “a special carve out for PFAS may begin the journey to a confusing patchwork of limitations in the future as more harmful substances are identified.”

Should there be any statute of limitations?

Some advocates and lawmakers question whether there should be any statute of limitations on lawsuits related to PFAS. After all, why should there be a time limit on justice? Similar arguments are made when debating the statute of limitations for sexual assault and other crimes.

There are reasons why statutes of limitations exist, of course. Over time evidence is lost and memories fade. A statute of limitations helps ensure that justice is prompt and supported by evidence.

The statute of limitations for personal injury lawsuits varies from state to state, but most states stick to three years or less. New Hampshire is not the only state considering a longer statute of limitations for PFAs-related lawsuits; there have been similar proposals in Maine and Michigan.

Share your opinion on HB 236

The Senate made some small changes to the language of HB 236 that must be approved by the House of Representatives. If you have an opinion on the bill, contact your state representative and tell them how you think they should vote. You can find your state representative on our website.

Updated 7/28/21: Gov. Sununu signed HB 236 into law. Click here to explore the latest legislative proposals related to water contamination.