Products Liability Law Daily Governor sue to recover $38M in clean-up costs from firefighting foam manufacturers
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Thursday, June 21, 2018

Governor sue to recover $38M in clean-up costs from firefighting foam manufacturers

By Colleen Kave, J.D.

Yesterday, New York Attorney General Barbara D. Underwood and Governor Andrew M. Cuomo announced a lawsuit against 3M and five other companies to require reimbursement of at least $38 million in environmental clean-up costs incurred by the state in addressing contamination caused by toxic chemicals in the companies’ products. According to the complaint, use of the manufacturers’ firefighting foams at four military and civilian airports resulted in extensive contamination of soil, fish, and water by perfluorooctane sulfonic acid/perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid/perfluorooctanoate (PFOA). The suit alleges that the companies violated state law by creating a public nuisance and by manufacturing and marketing products with defective designs and inadequate warning of product dangers. In addition to recovery of clean-up costs, the suit asks the court to award the state punitive damages in an amount to be determined at trial (Attorney General Barbara D. Underwood News Release, June 20, 2018).

PFOA and PFOS are chemicals that aid in extinguishing flammable liquid fires common to aircraft-related accidents. 3M began developing firefighting foams containing PFOS in the early 1960s and sold products containing PFOS and/or PFOA to the federal Department of Defense (DOD) through at least 2000. According to the complaint, five other companies—Tyco Fire Products LP, Chemguard, Inc., Buckeye Fire Equipment Company, National Foam, Inc., and Kidde-Fenwal, Inc.—also sold products containing PFOA and PFOS, or compounds that break down into them, to the DOD. These entities, the lawsuit further alleges, knew or should have known since the 1970s that PFOA and PFOS were mobile and persistent in the environment, accumulated in fish and other wildlife, and could be linked to cancer, liver damage, immune system effects, and other severe harms in exposed people. In fact, in April 2006, 3M agreed to pay the federal Environmental Protection Agency (EPA) a $1.5 million penalty for its failure to disclose studies dating back decades that confirmed the potential hazards of these chemicals to public health and the environment.

Firefighting foams allegedly designed, manufactured, and sold by the six companies named in the lawsuit were used, as intended, for firefighting and firefighting training at Stewart Air National Guard Base and Stewart International Airport (Newburgh and New Windsor), Francis S. Gabreski Airport (Southampton), former Plattsburgh Air Force Base (Plattsburgh), and former Griffiss Air Force Base (Rome). This resulted in the release of PFOA and PFOS into the surrounding environment and communities, contaminating drinking water, surface water, soil, and fish. Samplings by the New York State Department of Environmental Conservation (DEC) found concentrations of PFOA and PFOS in Lake Washington, the primary drinking water supply for the City of Newburgh, as high as 282 parts per trillion (ppt). The EPA’s current public health advisory for drinking water recommends that concentrations of PFOA and PFOS, either singularly or combined, not exceed 70 ppt. The toxic chemicals were found by DEC in groundwater at Gabreski Airport, former Plattsburgh Air Force Base, and former Griffiss Air Force Base at concentrations as high as 65,830; 1,045,000; and 61,233 ppt, respectively.

Governor Cuomo expressed his support for the lawsuit, the first of its kind brought by a state against the makers of firefighting products containing PFOA and PFOS, stating, "as state experts continue to investigate contamination caused by firefighting foams, New York is working to end the dangerous practices that threaten our natural resources. By taking necessary legal action against these companies, we are sending a clear message that we will do everything in our power to protect New Yorkers."

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