As concern over contamination of water supplies by so-called forever chemicals mounts, the town of Palmyra is suing a group of companies that manufactured or sold firefighting foam.
Filed in a Wayne County state court, the action names a dozen separate companies that have made or sold firefighting foams known as aqueous-film-forming products. The causes of action include defective design, failure to warn, negligence among other counts.
Companies named as defendants by the court action include broad-based chemical manufacturing firms 3M, BASF Corp., DuPont de Nemours as well as companies like Tyco Fire Products that specialize in firefighting foam.
Tyco and two DuPont-linked AFFF-making defendants had the case removed this month to the federal Western District of New York’s Rochester division, where it awaits further action.
The three firms that sought the transfer to Western District of New York federal court state in the removal filing that they plan to ultimately have the case added to multi-district litigation currently under way in South Carolina.
Used to fight fires fed by flammable liquids like gasoline and jet fuel and often used in training exercises by fire-training facilities, AFFFs commonly once contained perfluorooctane sulfonate and/or perfluorooctanoic acid.
Known as PFOA and PFAS, both chemicals have been epidemiologically linked to kidney, testicular, ovarian and other cancers. Because they persist in the environment for as long as 1,000 years, both have been called forever chemicals.
Studies by the National Institutes of Health’s National Cancer Institute on the long-term risks such chemicals might pose are ongoing.
In 2006, the federal Department of Environmental Protection reached an agreement with eight chemical companies to stop using such chemicals, which had been used in the manufacture of plastics products and Teflon cookware. The eight firms have not used PFOA or PFAS since 2015.
Water supplies in the Hudson Valley town of Hoosick Falls have been under observation by the state Health and Environmental Conservation departments since 2015,when PFOA and PFAS tracing to a still-operating plant that turns out circuit boards were detected in Hoosick Falls’ water.
PFOA and PFAS can be filtered out of water supplies. According to the DEC, levels of the forever chemicals currently found in Hoosick Falls water after filtration equipment was installed are safe.
PFAS has been detected in Palmyra’s water supply, the Wayne County town’s court complaint states, describing the contaminant’s presence as “a direct and proximate result of fire protection, training, and response activities of fire protection.” A plume containing the contaminants is encroaching on the town’s water supply, the complaint adds.
In addition to reimbursement for costs of remediating forever-chemical pollution, the town’s court action seeks damages in an “amount sufficient to punish these defendants and that fairly reflects the aggravating circumstances.”
Chemical companies like 3M and DuPont that manufactured PFOA and PFAS knew the chemicals were toxic and persistent for years but concealed their dangers from government regulators and the public, Palmyra’s brief claims.
In 2017, DuPont and Chemours Co., a Dupont spinoff, agreed to settle forever-chemical contamination claims brought by 3,500 Ohio Valley plaintiffs for $921 million.
The multi-district Ohio Valley case began in 1999 when a Cincinnati-based lawyer named Rob Bilott filed a claim against DuPont in a West Virginia federal court.
Poring through reams of documents supplied by DuPont in discovery, Bilott uncovered evidence that DuPont and Chemours were aware of the chemicals’ dangers but kept their knowledge hidden because PFOA and PFAS were cheaper than other alternatives.
Tyco and the other firms seeking to put the Palmyra dispute in the South Carolina federal multi-district jurisdiction claim the right to do so under a doctrine that allows such transfers for companies or individuals acting as agents for the federal government.
At least some of the forever chemicals found in Palmyra’s water supply trace to MilSpec AFFF, a firefighting foam developed by the U.S. Naval Research Lab in the 1960s, whose sale and manufacture “are governed by rigorous military specifications created and administered by Naval Sea Systems Command, a unit of the Department of Defense,” the removal notice states.
The South Carolina litigation is considered a bellwether case that will set the tone for future firefighting foam AFFF claims. As the case was slated to go trial on June 5, South Carolina U.S. District Judge Richard Mark Gergel ordered a pause after DuPont reportedly tentatively agreed to pay some $10 billion to settle its portion of claims.
No further action has since been recorded.
Will Astor is Rochester Beacon senior writer. The Beacon welcomes comments and letters from readers who adhere to our comment policy including use of their full, real name. Submissions to the Letters page should be sent to [email protected].