Water Contamination: PFAS, PFOS, and PFOA and Other Toxins

Every five years, the EPA publishes a list of no more than 30 unregulated contaminants that public water suppliers must monitor. These suppliers, which include public or private water districts and water companies, must fund testing and pay for remediation for water contamination created by corporations that either recklessly dispose of waste or that profit from products like fertilizers and firefighting foam that harm wetlands and waterways.

In 2012, the EPA included toxic per- an polyfluroalkyl substances commonly known as PFAS, PFOA, and PFOS and mandated under Unregulated Contaminant Monitoring Rule (UCMR 3) that every large water provider serving more than 10,000 people monitor for these chemicals for a period of one year between 2013 and 2015.

This was somewhat of a half-hearted effort. Of the over 3,000 known perfluoro-alkyl-ethylates (PFAS) substances, UCMR 3 required testing for only six of the detectable 14 chemical contaminants. Still, a considerable number of sites measured at or above the minimum PFOA and PFOS reporting level of 70 ppt.

Results of this limited testing raised concerns for some state regulators and lawmakers. For example, New York and New Jersey established maximum contamination levels (MCLs) of 10-14 ppt for PFOA and PFOS. California has since established minimum reporting level of 5 ppt, and mandated action and response at 10 ppt or more. These regulations were established for good reason.

Municipal Water Pollution

When waterways and wetlands are polluted, municipalities that provide water can be on the hook for millions of dollars in testing and remediation costs, despite the fact that they didn’t cause the damage. Frazer Onder Environmental Law helps municipalities rightfully recover these damages from the corporations that profit from unregulated and underregulated pollution and damage.

Our clients include city, county and state governments, as well as private and public water districts. We also represent tribal nations, airports, land owners, and businesses negatively impacted by these toxic polluters.

Studies Show Health Risks of PFOS

The EPA’s Scientific Advisory Board has determined that PFOS is a “likely human carcinogen.” The Department of Defense, itself a major polluter, has stated that its “priority is to address PFOS/PFOA to protect personnel … and surrounding communities that we have impacted.”

PFOS, PFAS, and PFOA contamination is so rampant that they are seemingly unavoidable. A Johns Hopkins study revealed the presence of PFOA in the umbilical cords of infants in a shocking 298 of 300 babies tested, and predicted developmental delays in fetuses and children as they develop, as a result. Johns Hopkins researchers also predicted:

  • Decreased fertility and changes to the body’s natural hormones
  • Immune system changes
  • Increase in uric acid levels
  • Disruption of critical liver enzymes
  • Increase in prostate, testicular, and kidney cancers

Potential chemical contaminants from industrial waste are somewhat endless. For example, the Heath Science Panel found that C-8 exposure over one year in as little as 0.05 ppb is directly linked to ulcerative colitis, pregnancy-induced hypertension, high cholesterol, thyroid disease, kidney cancer, and testicular cancer. Not only do these chemicals, which Dupont famously spread when it began creating non-stick coatings, have a half life of around 144 years, but they are also bio-accumulative, meaning they continue to build up in body tissues over time.

PFAS Manufacturing

So who is making and spreading these chemicals and why?

One of the biggest offenders is 3M. From 1944 to 2000, 3M manufactured multiple products containing perfluoro-1-octane sufonyl-fluoride (POSF) and perfluorooctyl sulfonates (C8-perfluoro-alkyl-sulfonates).

They’re not the only ones. From 1969 to 2015, DuPont, AsahiGlass, Clariant, AtoFina, Daikin, St. Cobain, Solvay, and other companies manufactured PFAS compounds.

From 1969 to 2017, in addition to 3M, Tyco, National Foam, Ansul, Chemguard, Buckeye, Angus, Fire Service Plus, Inc., and Kidde manufactured perhaps the most prolific source of PFAS pollution: aqueous film-forming foam (AFFF), commonly known as firefighting foam. This foam is still used today to extinguish chemical fires, not only putting firefighters at significantly greater risk of multiple cancers, but contaminating waterways, rivers, and wells of everyone and every business in the surrounding area.

Frazer Onder national environmental attorneys represents representing firefighters, water districts, water companies, school districts, airports, and agricultural business owners that have been impacted physically and/or financially by the toxic effects of AFFF, seeking to recover financial damages due to forced remediation, loss of livestock, and numerous cancers related to PFAS.

AFFF Firefighting Foam: Who is Using It?

The lion’s share of firefighting foam produced worldwide is sold to the United States military. It is used in both training and emergency situations, exposing tens of thousands of military members, as well as landowners, businesses, and agricultural operations near bases to high risk of toxic waste.

The next largest markets are airports and fire training facilities. The Federal Aviation Administration (FAA) mandates regular training using AFFF at airports large and small. Most often, especially in the case of small regional airports, they are located in rural areas and surrounded by agriculture. Lawsuits have been filed in multiple cases by dairy farmers forced to dispose of contaminated milk supplies and other farm-related losses.

Fire training facilities, also commonly located in rural or economically blighted areas, pose the same risks. Firefighting foam training often occurs at these facilities several times a week, and runoff from these drills goes directly into the surrounding land – and waterways.

Who are the Most Likely Water Pollution Litigation Plaintiffs?

Anyone who sustains significant physical or financial harm due to corporate water pollution may likely have a solid claim. Specifically:

  • States that sustain natural resource damages
  • Municipal and county water providers forced to mitigate contamination
  • Privately-held water providers
  • Land owners with contaminated water wells
  • Property Damage Classes – those who sustain property damage
  • Medical Monitoring Classes – those who must undergo continued medical monitoring due to exposure
  • Personal Injury Plaintiffs – water drinkers, firefighters, and those physically harmed by PFAS

Major PFAS Litigations To-Date

There is a significant precedent for water contamination cases.

  • In 2019, 3M settled with the State of Minnesota in an NRD and point source case for $855M.
  • In 2019, 3M settled with W. Morgan E. Lawrence Water Authority (AL) for $38-$50M.
  • In 2019, Wolverine settled water provider and State of Michigan cases in and around Algoma and Plainfield Townships for $69.5M.
  • In 2015, DuPont settled the Leach class action covering 6 water districts for 80k+ persons centered on the Parkersburg, WV Teflon plant for the following: $100 million in payments to personal injury plaintiffs, $235 million to fund medical research and cohort studies, and $70 million for remediation.
  • The only national AFFF Multi-District Litigation was established in Charleston, SC established in 2019. Litigation is ongoing.
  • DuPont is currently defending itself against multiple class action lawsuits in Wilmington and Cape Fear, NC for PFAS contamination of drinking water supplies for an area extending approximately 100 miles.
  • The states of NJ VT, and OH have filed NRD cases. The states of MI, NC, and NH are in the progress of filing.
  • 3M has sued the State of NH to enjoin lower PFAS regulations. Litigation is ongoing.
  • Multiple cases are ongoing in Pennsylvania brought about by plaintiffs who are water providers, well owners, personal injury plaintiffs, and those requiring continued medical monitoring.

Frazer Onder Environmental Attorneys Aqueous Firefighting Foam (AFFF) MDL Litigation

Frazer Onder Environmental lawyers are significantly involved in the only PFAS-related federal multi-district litigation involving AFFF. Defendants include 3M, DuPont, Tyco, Ansul, Buckeye, Chemguard, et al., all of whom have or continue to manufacture firefighting foam. The MDL is being presided over by Judge Richard Gergel, who is a former plaintiffs’ personal injury attorney and noted author.

Members of the Frazer Onder Environmental Lawyers serve on the Plaintiff’s Executive Committee. Roe Frazer is Co-Chair of the Private Water Provider Committee and is a member of the Discovery Committee, with lead discovery responsibilities for six of the seven target defendants.

What Locations are Most at Risk for PFAS, PFOS, and PFOA Contamination?

The following types of locations are most at risk for water contamination and therefore for potential litigation:

  • Locations where finished water tests have yielded detectable PFAS results.
  • AFFF contamination from fire-fighting training locations
  • AFFF contamination near or at military bases
  • AFFF contamination near airports
  • AFFF defendant point source manufacturing contamination
  • Point source PFAS, PFOA, PFOS contamination sites
  • Point source 1,4-dioxane contamination sites
  • Sites exposed to other toxic chemicals, compounds, or substances

What Damages Can Be Recovered?

The estimated cost of compensatory damages per well or treatment facility is $20M – $60M. This includes a number of different types of damages, including:

1. Cost of environmental remediation of rivers, streams, reservoirs, and  aquifers;

2. Cost of well monitoring, testing, and environmental assessments;

3. Regulatory costs;

4. Cost of providing temporary clean water supplies to impacted neighborhoods;

5. Cost of closing out contaminated wells, identifying uncontaminated groundwater sources, engineering and infrastructure investments to add replacement well sources;

6. Cost of engineering and feasibility studies for treatment, including Project Management costs for implementation;

7. Construction and real estate acquisition costs;

8. Cost of remediation, including costly GAC / reverse osmosis / ionization;

9. Cost of operating and product costs over a given number of years;

10. Cost of emerging technologies in testing and treatment systems.

Frazer Onder Environmental Law helps business owners, water districts, land owners, tribal governments, airport authorities, firefighters, corporations, and others significantly financially or physically harmed due to PFAS, PFOS, PFOA, or other toxic water contamination.

Need help with a water contamination claim?

Call Frazer Onder Environmental Law.