Court: Residents can't sue over 'forever chemicals' in municipal water

Two South Jersey men cannot sue their municipalities over the presence of “forever chemicals” in their drinking water, a state appeals court has ruled.

The residents — Mark Cerkez of Gloucester City and Charles Hoffman of Brooklawn — filed separate lawsuits alleging their local governments breached contracts with them by providing water with unacceptable levels of toxic chemicals used in industrial processes.

The proposed class action suits sought to represent all residents served by the municipal systems, which drew the contaminated water from wells.

They demanded financial damages for residents' expenses for bottled water and home filtration systems. The suits also asked for court orders barring the use of contaminated wells.

But the appellate decision ruled the men could not claim they had an “implied contract,” or seller-consumer relationship, with their local water departments.

PFAS in water supply:'Forever chemicals' prompt lawsuit by Burlington County township

It found “running water is not a commercial product but rather a public resource held in trust for residents."

And it said the town’s water systems were a government service that can’t be compared “to private companies that sell water for profit.”

Charging a fee for a government service “does not automatically create an implied contract between municipalities and residents,” the ruling continued.

An attorney for the men, Lewis Adler of Woodbury, could not be reached for comment.

Lawsuits raise concern over PFNA

The decision came after two lower court rulings split on the issue in October 2023..

A Superior Court judge dismissed Cerkez’ suit, awarding summary judgment to Gloucester City. That led Cerkez to appeal.

But another judge declined to dismiss Hoffman’s suit, prompting an appeal by Brooklawn.

The appeals were combined for consideration by a three-judge panel.

Its July 19 ruling upheld the decision in favor of Gloucester City, and overturned the one against Brooklawn.

The decision noted Gloucester City in 2021 received a notice of non-compliance over the level of a forever chemical, PFNA, in its well water.

The toxic chemicals, so-named because they degrade only slowly over time, have long been used to make water-repellent clothing, non-stick cookware and other products.

"Residents were advised that drinking water with PFNA levels that exceeded the MCL [maximum contamination level] for ‘many years’ could result in liver, kidney, immune system, and other health problems,” the appellate ruling said.

The city's notice said residents did not need to take corrective action but warned those with "’severely compromised immune system[s]’ or those with an infant, who were pregnant, or elderly, could be at an increased risk and should seek medical advice …”

Gloucester City "was given one year to lower the PFNA in the water it distributes to residents.”

Cerkez sued in May 2023, alleging Gloucester City “continued to sell the contaminated water after learning it was tainted.”

Similarly, Brooklawn was notified in December 2022 that PFNA in its water exceeded the maximum level.

The borough, which has received $1 million in federal funds to build a water-treatment facility, responded by blending contaminated water with clean water.

Both of the suits alleged the towns continued to sell contaminated water, “violating the implied covenant of good faith and fair dealing.”

But the appellate court saw it differently, declaring “there is no foundation upon which contractual damages may be claimed against these municipalities.”

Jim Walsh is a senior reporter with the Courier-Post, Burlington County Times and The Daily Journal. Email: Jwalsh@cpsj.com.