Municipalities and utilities across the U.S. have joined a multidistrict litigation (MDL) suit claiming that their water supplies are contaminated with per- and poly-fluoroalkyl substances (PFAS) from aqueous film-forming foam (AFFF). These chemicals have been used for decades to extinguish chemical or petroleum fires at military bases, airports and industrial facilities. Most of these water providers trace their water contamination to the repeated use of AFFF by firefighters at these facilities to conduct training exercises. This practice resulted in substantial quantities of AFFF spread across the ground at these sites, allowing the PFAS in the product to enter the soil, surface water and, eventually, the groundwater.
The problem with PFAS contamination
Perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) are part of the PFAS family of about 6,000 chemicals and can seriously affect a person’s health, including increasing the risk of cancer, thyroid disorders, ulcerative colitis, an increase in liver enzymes and pregnancy-induced hypertension and preeclampsia. Due to the known harm caused by these persistent bioaccumulate contaminants, many state regulators have set their own maximum contaminant levels (MCL) and are issuing testing orders to monitor the quality of their drinking water. If a test result exceeds the maximum contaminant level, a water provider must act — whether to take the impacted resource out of service or to notify consumers. This sets in motion a series of costs that can include shutting down water sources, purchasing water from other alternative sources and implementing a cleanup plan that often includes building a new water treatment facility to remove the contaminants.
On Oct. 18, 2021, the U.S. Environmental Protection Agency released its PFAS Strategic Roadmap, which sets timelines to take specific actions for regulating 29 PFAS substances. While still early in the regulatory process, the EPA’s intent is clear, PFOA and PFOS will be regulated, and the EPA may even go so far as to declare these compounds hazardous substances. Handling, removing and disposing of hazardous substances is costly and not something a municipality and its ratepayers should be paying for when we know who manufactured these man-made toxic chemicals. The manufacturers of PFOA and PFOS knew these products would likely pollute groundwater, yet they failed to take reasonable and available steps to avoid the use of these substances in AFFF and failed to provide warnings that using these products as directed could result in groundwater contamination. They should be held liable.
Multidistrict litigation gains momentum
As of March 2022, approximately 100 water providers have joined MDL-2873 against various AFFF manufacturers, alleging impact to usufructuary rights in water. The water provider cases are one subset of approximately 2,000-plus cases pending in the MDL, but the court has selected the water provider cases as bellwether cases, meaning those cases will be tried first to work through common legal and factual issues that apply to the majority of all other cases. The bellwethers are representative of the claimants in that category of claimants. These trials serve as an indicator of what parties might expect in their individual lawsuits and are helpful in identifying the legal arguments that are most effective and the range of likely damages.
The MDL started in January 2019, in the Federal District Court for the District of South Carolina, where this MDL is being heard. The other classes of plaintiffs are property owners, personal injury plaintiffs and the sovereigns (states, territories and tribes).
What is an MDL?
MDLs are used to coordinate complex litigation filed in multiple federal district courts by similar parties. By consolidating the discovery and pretrial motions, both sides save time and money. The benefit for plaintiffs is that attorneys can pool their resources and coordinate efforts that are needed to take on large, powerful corporations. If preliminary bellwether cases are resolved in favor of the plaintiffs, it usually results in a domino effect of settlements for the remaining cases. Typically, the presiding judge will steer the parties toward an agreeable resolution with a national settlement. An MDL settlement is not binding on any party without their agreement to participate, but it can provide efficiencies, as discussed above. If a case is not settled during an MDL, it is sent back to the original court for trial.
“The majority of plaintiffs do not go through the standard rigor of an independent lawsuit, which makes this legal route attractive to so many municipalities who just don’t have the resources to take on a big corporate polluter,” said Ashley Campbell, attorney at SL Environmental Law Group, a legal firm that deals exclusively with water contamination litigation.
Additional plaintiffs are still able to join this MDL. Proceedings are already underway for water providers, which effectively shaves off two years (the duration the MDL has already been pending) to settlement or trial verdict and makes now a good time to join. Water contamination lawsuits are on the rise, and consequently, if a new suit were filed independently outside the MDL, the time to settlement or trial is most likely three to five years (and possibly longer in some jurisdictions where dockets were harder hit by closures from the pandemic). Joining the MDL-2873 is likely one of the faster routes to seeking damages to a water system if it has been polluted by AFFF.
“The process to join is relatively straightforward,” said Campbell. “We discuss how the provider has been impacted and if there are any operational changes resulting from PFAS contamination. If there are, we evaluate any relevant legal issues and immediately begin obtaining necessary documents. If a client decides to move forward with litigation, we draft a lawsuit and work with the client to prepare the required documents to be produced in the litigation. Our services are based on contingency, so the water provider has no upfront costs and only pays if a settlement or trial verdict is won.”
Statute of limitations
Lawsuits are subject to the statute of limitations — the time limit that applies to every legal claim. Outside of special circumstances, claims brought after the statute of limitations has run out cannot be brought, no matter how valid — or valuable — they are. While the calculation of a statute of limitations varies from jurisdiction to jurisdiction, generally, it begins once the discovery of the contaminants has been identified in the water supply or when the provider takes some action in response to the awareness of the contaminant.
While litigation can be slow, the alternative is to do nothing, which gives manufacturers a free ride to pollute and forces ratepayers to pick up the bill. An MDL is a way for water providers to band together and send a strong message to polluters to clean up their toxic legacy and adopt clean solutions that are not harmful to people or the environment.