Why high levels of PFAS should be a personal injury by law
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Why high levels of PFAS should be a personal injury by law

> For decades, the people living in the Swedish town of Kallinge got their tap water from a treatment plant that turned out to be contaminated with harmful PFAS chemicals.

> They sued the municipally owned water company for damages – and won.

> But the water company is appealing the verdict, arguing that high levels of PFAS should not be considered a personal injury. This is why it definitely should be.

 

It has been a long journey with many legal and medical twists and turns for the close to 5,000 inhabitants of Kallinge since December of 2013. That’s when high levels of PFAS – more than 100 times the EU limit value – were discovered in the water treatment plant Brantafors, run by municipally owned water company Ronneby Miljöteknik.

The treatment plant was closed and blood samples from residents in the area were collected. The results were shocking; the PFAS levels in the blood of the people of Kallinge were among the highest measured in the world.

 

Military drills caused the PFAS contamination

The source of the contamination is the fire foam that the Swedish Armed Forces have been using since the 1980s on the exercise grounds of the air base F17, located near the water treatment plant.

The Armed Forces accepted responsibility for the contamination in 2015, but denied to pay compensation to those affected, arguing that there was no connection between the contamination and any health issues.

 

A potential time bomb building inside the body

PFAS (per- and polyfluoroalkyl substances) – also known as “forever chemicals”, since they don’t degrade naturally – are a group of close to 5,000 man-made chemicals with similar structure, used on textiles, cookware and other products for their non-stick properties, and in firefoam for their ability to create durable bubbles.

There are several health problems associated with the chemicals, which affect kidneys, liver, cholesterol levels and fertility, among other things.

There are also studies showing that PFAS inhibit the body’s immune system, which increases the risk of infections and results in a weakened immune response to vaccinations. In addition, PFAS are linked to an increased risk of testicular and kidney cancer.

“Although these chemicals are not acutely toxic, they accumulate in the body and don’t degrade”

“Although these chemicals are not acutely toxic, they accumulate in the body and don’t degrade. This combination makes long-term exposure to high levels of PFAS a great threat to human health”, says ChemSec’s Senior Chemicals and Business Advisor Dr. Jonatan Kleimark.

 

The people of Kallinge mobilize

In 2015, a number of Kallinge residents founded the PFAS Association, with the purpose of bringing those responsible for contaminating their drinking water to justice in court. Following the advice from their lawyers, the association decided not to sue the Swedish Armed Forces, but filed a lawsuit against the municipally owned water company instead. The association encouraged the municipality to file a lawsuit against the Armed Forces in turn, but there are few signs of that happening anytime soon.

“This means that the court made the decision that high levels of PFAS qualifies as a personal injury – even if the person affected has not yet fallen ill”

In 2018, the Swedish Supreme Court ruled that municipal water should be regarded as a product, according to the Product Liability Act, which was the first win for the 165 members of the PFAS Association.

This ruling opened up the possibility to sue Ronneby Miljöteknik for damages, which they did in the autumn of 2020.

Following a postponed trial, due to late submission of evidence by the water company, Blekinge District Court handed down the verdict in April of this year: Since PFAS are known to have adverse effects on human health, high levels of the chemicals should be regarded as a “defective state”, which is the definition of a personal injury according to Swedish law.

This means that the court made the decision that high levels of PFAS qualifies as a personal injury – even if the person affected has not yet fallen ill. The future risk of becoming sick due to these chemicals is enough. Ronneby Miljöteknik was sentenced to pay damages to the members of the PFAS Association, although the sum has not yet been specified.

 

The verdict that could change Swedish environmental law

Many were surprised by the verdict, which has been called unique, groundbreaking and a potential gamechanger within Swedish environmental law. Mattias Öberg, associate professor of toxicology at the Institute of Environmental Medicine at Karolinska Institutet, who was an expert witness for the PFAS association during the trial, didn’t quite expect the ruling either:

“I was pleasantly surprised. District courts and lower instances don’t usually dare to go so far as to make their own interpretation of the legislation that no one else has done before.”

Mattias Öberg goes on to say that the verdict stating that high PFAS levels entail increased health risks, physical changes and deteriorations of the body means that the court regards health as something more than just a diagnosed disease:

“District courts and lower instances don’t usually dare to go so far as to make their own interpretation of the legislation that no one else has done before”

“It’s about the function of the body and the opportunity to be in good health for the rest of your life – not just becoming ill immediately after exposure. This is important, since a lot of these health effects may appear after a very long time.”

Rob Bilott is an environmental attorney who has long been pursuing legal cases surrounding PFAS contamination in the United States. He is currently working on a federal court case on behalf of every American who has PFAS chemicals in their blood – which is virtually everyone in the country – seeking resources for testing, studies and information. He also commented on the verdict:

”I was very pleased to see the court’s recognition of having these chemicals in the blood being an injury and something you should be able to pursue relief for. This is something that is being debated in courts right now, so I think it’s an incredibly powerful and positive development.”

 

The water company prepares to appeal the verdict

The day of the verdict was an emotional one for the 165 members of the PFAS Association, who have been fighting long and hard for this outcome. But the relief was shortlived; Ronneby Miljöteknik has decided to appeal. The municipality’s legal representative Mathias Kågell-Landgren explains the reasoning behind this decision:

“The people of Kallinge and others who have been subjected to PFAS poisoning over a prolonged period of time will most likely have to deal with these high levels and their adverse health effects for the rest of their lives”

“If the risk of future injury or illness should be considered a personal injury, this issue needs to be examined by all levels of the legal community, since you would be expanding the area of damage liability. […] The court has found that an elevated level of a substance in the body constitutes an injury. […] And we believe that it should not constitute a personal injury.”

Although ChemSec is not an organisation of legal experts, we know enough about PFAS and other persistent, accumulating and toxic chemicals to make our own verdict in this case:

“Since these chemicals are so persistent, the people of Kallinge and others who have been subjected to PFAS poisoning over a prolonged period of time will most likely have to deal with these high levels and their adverse health effects for the rest of their lives. If that doesn’t qualify as a personal injury induced by chemical exposure, I don’t know what does”, says Dr. Jonatan Kleimark.

 

Who is responsible?

Apart from the important issue of what qualifies as a personal injury, there is also the matter of ultimate liability. When all is said and done – who is responsible for the PFAS poisoning of the Kallinge inhabitants, whose health has been irreversibly jeopardized?

Is it the water treatment company, supplying the contaminated water? The Swedish Armed Forces, releasing the chemicals into the environment, and eventually water sources? The company manufacturing the fire foam, adding the hazardous chemicals in the first place?

“We need a ban on all PFAS and we need it decades ago”

Or should we place the blame on legislators and decision-makers, for allowing the continued use of PFAS chemicals in production – even though years of research and an ever-growing body of evidence inform us of the dangers associated with them?

A revised view on the concept of “personal injury” to include high levels of toxic chemicals is a step in the right direction, but it’s not good enough. We need a ban on all PFAS and we need it decades ago.

 

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Visit the PFAS Movement for more information about “forever chemicals” and what we at ChemSec, along with our corporate allies, are doing to turn them into “never chemicals”.