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Senator Carney, Representative Harnett and honorable members of the Judiciary Committee. My name is Sharon Treat and I live in Hallowell. I am Senior Attorney for the Institute for Agriculture and Trade Policy (IATP), on whose behalf I am testifying today in support of LD 363 and LD 637, “An Act Relating to the Statute of Limitations for Injuries or Harm Resulting from Perfluoroalkyl and Polyfluoroalkyl Substances.”
IATP is a 501(c)(3) nonprofit headquartered in Minneapolis, Minnesota with offices in Hallowell, Maine and other locations. IATP works closely with farmers and seeks to promote local, sustainable and environmentally beneficial agriculture and trade policies. We have been following PFAS issues both across the country and in Maine, and attended the meetings of Governor Mills’ PFAS Task Force and submitted detailed comments on the draft and final Task Force reports and legislation before this and other committees.
Maine’s Statute of Limitations is out of date. It was conceived of without understanding chemicals with properties such as PFAS, which silently and invisibly contaminate soil, water, plants and livestock, bioaccumulate in food and in human bodies, move great distances through groundwater and persist for decades. Unlike the statutes of limitations in 37 other states, Maine’s law hasn’t been updated to clarify that it runs from the time the plaintiff discovers or reasonably should have discovered the harm or injury and the connection to the chemicals. Instead, the standard set forth in 14 MRSA §752, “within 6 years after the cause of action accrues,” is ambiguous text and somewhat circular text that could lead to further litigation in order to access the courts.
The mismatch between how PFAS acts in the real life environment, and the legal test set forth in Maine’s one-size-fits-all statute of limitations, is vividly illustrated by what’s going on in Fairfield and the neighboring communities of Benton and Unity Township. There, dozens of drinking water wells have been contaminated with off-the-chart levels of multiple PFAS chemicals. The contamination was recently discovered only because the state Department of Agriculture, Conservation and Forestry began testing retail milk for PFAS last year and was able to trace a spike of PFAS in processed milk back to a Fairfield farm. The retail milk testing program, which remains limited, was instituted following discovery of PFAS contamination at an Arundel farm. Neither the farmer who spread sludge on farmland in the area nor the residents whose wells have been contaminated with PFAS knew that they were being exposed to high levels of this chemical until the milk was tested and traced back. Moreover — and this is critical for understanding the need for LD 363 and LD 627 and the “discovery rule” the legislation would establish — it is possible that this contamination was caused by sludge that was spread in the area no more recently than 17 years ago. In recent years, sludge has not been spread on fields in the area.
In other words, the affected residents don’t know when these wells first became contaminated with PFAS and they had no way to know of the contamination until alerted by the State. Further, the practice of spreading sludge on farmland was authorized by both state and federal governments, so neither farmers nor neighbors could be expected to be suspicious and order testing of their water for random chemicals. In this situation, Maine’s statute of limitations, with the ambiguous “accrue” language, could arbitrarily limit access to the courts and to compensation for those injured.
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