New York State Sues Companies for $38M in Remediation Costs
By: Paula Lombardi
In June 2018 the State of New York sued 3M Co. and five other companies for the costs associated with the remediation of hazardous materials caused by the firefighting foam manufactured by these six companies. This is the first lawsuit of its type filed by a U.S. state against private companies.
New York State filed the lawsuit in the Supreme Court of Albany alleging that the six companies knew or should have known of the harmful effects of the firefighting foams containing perfluorooctanesulfonic acid/perflurooctane sulfonate (PFOS) or perflurooctanic acid/perflurooctanoate (PFOA). PFOA and PFOS fall into a group of chemicals known as PFAS.
PFOS and/or PFOA were discovered at locations throughout New York State, including Stewart Air National Guard Base in Newburgh and Francis S. Gabreski Air National Guard Base in Westhampton Beach in addition to airports located in New Windsor, Plattsburgh, and Rome.
The claim is requesting that the companies reimburse New York State for the costs associated with the remediation of PFOA and/or PFOS that was also used at the airports.
The New York Department of Environmental Conservation and Department of Health claim to have spent more than $38 million to investigate and remediate the contamination due to the use of the firefighting foam. The companies named in the lawsuit include 3M Company, Tyco Fire Products LP, Chemguard Inc., Buckeye Fire Equipment Company, National Foam, Inc., and Kiddie-Fenwal, Inc.
The claim alleges that the use of the firefighting foams at the military and civilian airports have resulted in extensive contamination of soil, fish, and water including municipal drinking water sources.
The basis of the claim is that the companies should be held liable under state law for the contamination arising from the use of the products, based on the companies manufacturing and marketing of the products with defective designs, inadequate warning of product dangers and the creation of a public nuisance.
According to a spokesperson from 3M, “3M will vigorously defend this lawsuit. 3M acted responsibly at all times and will defend its record of stewardship in connection with its manufacturing and sale of AFFF .” Chemguard and Tyco have the same parent company and have failed to comment on the claim.
The Attorney General for the State of New York made the following comment on the claim: “The conduct of these manufacturers caused widespread contamination of our drinking water and our environment – and jeopardized the health of tens of thousands of New Yorkers.”
The firefighting foams containing the chemicals were developed in the early 1960s and sold until approximately the year 2000.
In addition to the claim filed by New York State, there are more than 70 lawsuits that have been brought over the firefighting foams. The claims have been brought against PFAS and other similar chemicals that have found their way to municipal drinking water systems. The claims allege that PFAS is in approximately one-third of Americans’ drinking water.
PFAS, or per- and polyfluoroalkyl substances (PFAS) are classified as a group of man-made chemicals that includes PFOA, PFOS, GenX, and many other chemicals. PFAS have been manufactured and used in a variety of industries, including in the United States since the 1940s. PFOA and PFOS have been the most extensively produced and studied these chemicals. These chemicals are persistent in the environment and in the human body – meaning they don’t break down and they can accumulate over time.
There are also numerous other claims against various companies for the use of PFAS. In November 2018 a seven-judge panel in Manhattan heard a motion as to whether or not the individual claims brought against PFAS should be consolidated despite there being some variations in the claims as to how the chemicals got into the drinking water. The motions came shortly after a Colorado federal judge issued an order on September 25, 2018, in a class action brought on behalf of 64,000 residents of communities near Colorado Springs. The residents claimed that chemicals from the firefighting foam at the Peterson Air Force Base and the Colorado Springs Municipal Airport leaked into their drinking water resulting in pregnancy problems, kidney and thyroid diseases.
It is important to note that 3M phased out some types of PFAS in 2002 with other companies phasing after 3M.