By Britt Strottman, Megan Stedtfeld and Katherine Boniface
Research on the health and environmental impacts of chemicals (per- and poly-fluoroalkyl substances, referred to as PFAS) commonly used in firefighting foam and in numerous commercial, industrial and military applications has raised concerns about widespread contamination and the health impacts associated with its use. These concerns have resulted in new governmental regulations and litigation and recent developments have significant fiscal, public health and public safety implications for local government agencies.
The issue of PFAS is gaining traction in terms of public awareness and coverage in the media and on social media channels. California residents and policymakers tend to take such concerns seriously, and the emergence of PFAS as a serious environmental threat to public health will likely impact public opinion in your jurisdiction.
This article presents information of interest to local government agencies about PFAS contamination, the changing regulatory and legal landscape, remediation, costs, litigation and strategies.
Why PFAS are problematic
PFAS chemicals persist in the environment, drinking water and the human body for extended periods of time. Aqueous film forming foam (AFFF) is a highly effective substance long used for fighting high-hazard flammable liquid fires, and it is a common source of exposure to PFAS. Other sources include food packaging, nonstick cookware, stain-repellant fabrics and upholstery, clothing, vinyl flooring, furniture, carpets, pesticides, manufacturing processes, protective equipment worn by firefighters and medical personnel and drinking water.
While the risks are not yet fully known, the Centers for Disease Control (CDC) reports that prolonged exposure to PFAS can cause cancer, liver damage, decreased fertility, reproductive and developmental problems, immune system dysfunction, elevated cholesterol levels and increases the risk of asthma and thyroid disease.
Furthermore, the CDC notes that PFAS are extremely persistent in the environment, waterways, wildlife and the human body (the half-life of PFAS in the human body generally lasts from two to nine years) and are very resistant to typical environmental degradation processes.
Firefighters are regularly exposed to PFAS through their personal protective equipment and firefighting foam. They have a 9% higher chance of being diagnosed with cancer and a 14% higher risk of dying from cancer than the general U.S. population, leading to serious concerns for their overall health and safety.
Other workers at increased risk for PFAS exposure in the workplace include those working at landfills and wastewater treatment facilities and workers in the aviation, manufacturing, industrial and agricultural sectors. Any jurisdiction concerned about the potential impacts of PFAS on water quality and related environmental quality issues should view the presence of such facilities in its community as potential red flags.
A growing body of scientific research indicates that the general public is also at risk for the serious negative health impacts of PFAS exposure. A study released in May 2023 by the U.S. Geological Survey (USGS) found that at least 45% of the drinking water nationwide is contaminated with PFAS. A 2015 study conducted jointly with the CDC found 97% of Americans have PFAS in their blood and a study published by the CDC’s Agency for Toxic Substances and Disease Registry found the problem is often regional.
A cause for concern in communities of all sizes, no matter how small or remote
Even small, isolated jurisdictions without industry are at risk for potential contamination. Research shows that PFAS can be transported long distances by air and water to remote regions far from the original sources in industrial and urbanized regions. Alarming levels of PFAS have been found in populations of small, far-flung communities without nearby industrial or manufacturing facilities.
Legislative and regulatory overview
In September 2020, the California Legislature passed SB 1044 (Chapter 308, Statutes of 2020), which added Sections 13029, 13061 and 13062 to the Health and Safety code, banning the manufacture, sale and use of PFAS-containing “Class B firefighting foam” beginning Jan. 1, 2022. The ban contains one exception in cases where the use of Class B firefighting foam is required by federal law, such as under Federal Aviation Administration rules pertaining to aircraft rescue. This law requires any party that sells firefighter personal protective equipment (PPE) to provide a written notice to the purchaser at the time of sale if the firefighter PPE contains intentionally added PFAS. Local governments that have a fire department should be aware of this ban and the transition away from AFFF. Although not mandated, municipalities should also take proactive steps to ensure their first responders have PFAS-free PPE.
President Biden signed the PFAS Act (S.231) into law on Dec. 20, 2022. The bill directs the Federal Emergency Management Agency to establish guidance, educational programs and best practices to protect firefighters and other first responders from exposure to firefighting foam’s PFAS and prevent PFAS releases into the environment.
Transitioning Away from AFFF
On May 8, 2023, the Federal Aviation Administration (FAA) issued a report titled Aircraft Firefighting Foam Transition Plan. It describes the need to identify non-PFAS alternatives to AFFF, and it states:
On Jan. 6, 2023, the [Department of Defense] DoD published a new fluorine-free foam (F3) military specification (MILSPEC) … The next step is for foam manufacturers to submit their F3 agents for qualification by DoD. Once DoD certifies that a foam meets the new MILSPEC, it will be added to the Qualified Product List (QPL).
Once MILSPEC F3s are posted to the QPL, the transition to these new foams can begin. Any public entity that owns or operates an airport that (whether mandated or not) has AFFF on-site should assess the site and develop a transition plan.
The FAA and EPA encourage the expeditious transition to MILSPEC F3s to reduce potential human health and environmental impacts from PFAS contamination. Making this transition as quickly as possible—taking into account firefighter safety and other issues—will reduce the potential for further environmental contamination from PFAS and future environmental liabilities.
EPA Regulatory Action on PFAS Contamination
On March 14, 2023, the U.S. Environmental Protection Agency (EPA) announced the proposed National Primary Drinking Water Regulation for six types of PFAS at 4 parts per trillion or less — and noted that no amount of PFAS is safe. The proposed rule sets maximum contaminant levels and will require public water system operators to:
- Monitor for these PFAS;
- Notify the public of the levels of PFAS present in drinking water; and
- Clean up the levels of these PFAS in drinking water if they exceed the proposed standards.
It is anticipated that PFAS will be designated a hazardous waste under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), commonly known as Superfund. Additional regulations are likely to be issued for groundwater and will require further action to remediate any contamination, which will be a very costly undertaking.
To recoup the high costs of remediation, many public agencies charged with removing PFAS from their facilities are taking action against local sources of contamination — and PFAS manufacturers.
A brief summary of PFAS litigation
Throughout the nation, local leaders are calling for PFAS manufacturers, including 3M and Dupont/Dow, to be held accountable for the damage their products have caused and for the cost of removing PFAS from the water supply.
Litigation for water contamination and other injuries caused by PFAS through AFFF has been consolidated in a multidistrict litigation (MDL) in the U.S. District Court for the District of South Carolina (Case No. MDL 2873), in place since 2019 and presided over by Judge Richard M. Gergel.
Over 3,000 cases are consolidated in the MDL, composed of individual plaintiffs alleging personal harm and entities seeking damages for cleanup costs and other harm. More than 40 defendants have been sued in connection with the AFFF litigation to ensure that they will be held accountable for the harm they caused. The first bellwether trials are underway.
One of these defendants, 3M, reached a proposed settlement for approximately $12.5 billion with all “Public Water Systems” in the United States on June 22, 2023. Judge Gergel issued preliminary approval of the formation of this “Class Action” settlement on August 29, 2023. In a letter to the judge, a coalition of 22 attorneys general representing 22 states and territories expressed concern over the settlement, saying, “The amount falls far short of what is needed to address the harm 3M’s products have caused public water systems and appears at odds with the scope of release that would be required in exchange for participation in the Settlement. Moreover, the protracted payout period increases the risk that 3M will face insolvency before it has fully paid out that amount.”
If your agency provides water or operates a water system, there were recent key MDL opt-out deadlines for the Dupont and 3M settlement. Several other rigid deadlines associated with these settlements may affect your agency; for additional information specific to your situation, consult your agency attorney.
The proposed settlement shows that defendants are coming to the table to resolve these disputes, so those harmed should assess their damages and consider and pursue all legal avenues available to them; however, given the number of public water systems in the United States, public agencies are getting pennies on the dollar.
Numerous local governments and special districts in California are participating in the MDL. Local agencies are well-advised to consider taking a proactive approach by entering into the MDL, which positions the agency for a successful outcome. Waiting to take action on PFAS puts an agency in the reactive position of competing with other public entities for limited settlement funds. Furthermore, in litigation of this nature, the possibility of defendants maneuvering to evade responsibility is a concern. By entering into the MDL, an agency will be included on the list of creditors utilized by the bankruptcy court if 3M or DuPont/Dow declares bankruptcy as a tactic to avoid liability.
A number of key public entities entered the litigation prior to the bellwether trial. California Attorney General Rob Bonta filed a lawsuit on Nov. 10, 2022, against the manufacturers of PFAS for endangering public health, causing irreparable harm to the state’s natural resources and engaging in a widespread campaign to deceive the public. In the lawsuit, he alleges that these manufacturers knew or should have known that PFAS are toxic and harmful, yet continued to produce them for mass use and concealed their harms from the public. As a result, PFAS are pervasive throughout California’s waterways and in fish, wildlife, soil and the bloodstreams of 98% of Californians.
It is essential that any litigation on behalf of a local agency is designed not only to hold the defendants accountable, but also to prevent future occurrences of PFAS contamination and to preclude the possibility of an ongoing cycle of litigation needed to address the hazards and costs of such contamination.
Key concerns in dealing with PFAS
In addition to the regulatory enactments that appear imminent, the current posture of the MDL litigation proceeding in South Carolina presents a narrow window of potential opportunity for those harmed by PFAS contamination to obtain near-term recoveries.
Mitigating the impacts of PFAS is a complex and costly undertaking. Properties with PFAS contamination typically require remediation and finding efficient, cost-effective means of removing PFAS from contaminated water or soil continues to challenge the EPA and scientists, as noted earlier.
While the technology exists to remove PFAS from the water supply, it is not in place, and it is extremely expensive to implement. These treatment methods require public utilities to spend millions of dollars on advanced system upgrades. Local officials and water agencies are grappling with how to pay for the high cost of cleanup, which also involves disposing of the extracted PFAS in specially designed landfills.
One of the biggest mistakes jurisdictions commonly make when evaluating how best to proceed involves not correctly accessing the contamination, thus significantly underestimating the impacted volume and area. This creates a nightmare scenario of unidentified costs. Obtaining a thorough understanding of impacts requires thorough delineation. It is essential to employ the services of a team at the forefront of this technology and well-versed in its application.
Estimating the remediation costs
Delineating the PFAS impacts and who is responsible is an essential first step in estimating remediation costs. Does PFAS contamination in your jurisdiction impact groundwater and soil? Engaging an experienced team to conduct sampling and gather information will provide critical data for identifying and refining your site’s unique costs.
While remediation costs can be significant, these expenses are just one element of the damages that will need to be assessed in order to develop and execute a strategy for recovering the costs.
Determining potential damages
The process of determining potential damages involves examining areas and activities where PFAS contamination and its impacts result in costs to the agency. These areas and activities include:
- Site assessment;
- Regulatory interaction, including compliance with new regulations;
- Remediation of soil;
- Remediation of groundwater, drinking water and water treatment facilities;
- Restoration of ecology/wildlife;
- Health effects on humans; and
- Staff time.
Site assessment scrutinizes places where PFAS are commonly found, including areas used for firefighter training, landfills, wastewater treatment facilities, groundwater and drinking water wells that feed public water supplies, publicly owned facilities near industrial or manufacturing operations and aviation facilities.
As new regulations are adopted and implemented, coming into compliance will be a costly undertaking that will involve considering numerous factors.
While each scenario will be different, it is not unreasonable to anticipate damages ranging in cost from hundreds of thousands to multi-million dollars — depending on the number of parties that file claims, the regulations in place where the contamination is present, and the concentrations and extent of the contamination.
Under the guidance of legal counsel and expert PFAS consultants and economists, a local jurisdiction should undergo a rigorous scientific process to determine the estimated costs of potential damages and devise a legal strategy to recover those costs for your agency.
Conclusion
Public agencies need to be aware of the changing regulatory landscape related to PFAS. Those that suspect PFAS contamination and/or exposure should consult an attorney and have testing and sampling conducted by an expert to determine contamination levels. The agency can and should hold accountable those responsible for the contamination and seek to recover the costs and damages associated with remediation.
Local government agencies face daunting challenges in addressing PFAS contamination, determining the likely costs associated with the process, and planning for mitigation and cost recovery. With adequate professional support from a team of experts, however, these challenges can be overcome; thorough advance preparation, meticulous attention to detail, and thoughtful execution are the essential components of a successful PFAS strategy and response.
About Singleton Schreiber and Group Delta
Singleton Schreiber is a client-centered law firm specializing in mass torts and multi-district and environmental litigation. We combine creative and innovative legal advocacy with a fearless courtroom presentation to protect and safeguard our clients’ interests every step of the way.
We specialize in environmental litigation and have expertise in the complex legal issues related to addressing and litigating PFAS.
With over 75 years of collective experience, Singleton Schreiber’s Environmental Litigation practice group brings together accomplished attorneys from varied backgrounds who have counseled public and private clients impacted by devastating environmental disasters and litigated some of the country’s largest water contamination lawsuits.
Over the past decade alone, our trial attorneys have recovered more than $2 billion for our clients.
Our attorneys have extensive experience working both as in-house and outside counsel for local government agencies in California and have a stellar track record of proven success in litigating environmental issues on behalf of public agencies.
We understand the budgetary/resource constraints and time pressures on public agency staff, and we support your agency’s efficient use of public resources by relieving your staff of the significant workload burdens associated with litigation. In addition, we work cooperatively and collaboratively with your staff to avoid duplication of efforts and ensure that public resources are being used to optimize effectiveness and maximize efficiency.
We can save your agency a significant amount of money by not only covering the costs of sampling and testing upfront along with other expenses, but also by agreeing to provide the services to undertake this litigation and preparatory work on a reduced contingency fee basis. Singleton Schreiber understands the importance of providing exceptional work while being responsible with public funds and protecting the public interest.
Our attorneys are seasoned veterans in representing local government agencies when dealing with regulatory agencies, such as the California State Water Resources Control Board (SWRCB), and in addressing concerns related to National Pollutant Discharge Elimination System (NPDES) requirements.
Group Delta has a long history of working with public agencies and navigating the safety aspects and issues related to internal and external regulatory environments, unions, work notifications, project labor agreements, security badging, site access requirements, and access to facilities operated by local agencies, as well as the environmental and geotechnical aspects of the work.
The firm has developed work plans for PFAS assessment, assessed releases on public and private property and provided remedial options and oversight of cleanup activities. Group Delta has provided oversight for removal of aircraft firefighting foam equipment from a major airport hangar and has tested process water and equipment for PFAS as part of the process for evaluating the proper disposal of these wastes. In addition to airports, local agencies have to navigate the challenges through complex systems such as wastewater treatment plants, landfills, drinking water, and stormwater. Delineating the sources of PFAS and properly handling runoff, biosolids, and effluent wastewater requires the guidance and services of experienced professionals. Group Delta has extensive experience working with local agencies, regulatory oversight, and third-party contractors.
Group Delta offers all levels of environmental services, from cradle to grave, on these projects. One team manages all aspects of environmental work, which provides a seamless, efficient, cost-effective operation.
Britt Strottman is a partner with the law firm of Singleton Schreiber, LLP, and leads its public entity law and environmental litigation practice groups. She has experience both as in-house and outside counsel for local government agencies and served as former deputy city attorney in the San Francisco City Attorney’s Office and deputy district attorney for San Mateo County. Ms. Strottman represented the City of San Bruno against PG&E in the 2010 gas line explosion and recovered $120 million for the city. She represented numerous counties and cities in the deadly, devastating wildfires of 2017 and 2018 and was instrumental in recovering $1 billion from PG&E for the affected local governments. In addition, Ms. Strottman recovered $86.5 million for neighboring jurisdictions to clean up nuclear waste generated by the Diablo Canyon Power Plant and to recover lost revenues for city and county agencies.
Megan Stedtfeld is an attorney with Singleton Schreiber and specializes in public entity law and environmental litigation. She has dedicated the majority of her legal career to representing public agencies both as in-house and outside counsel and is a seasoned public servant. In recent years, Ms. Stedtfeld served as deputy county counsel, interim county counsel and appointed county counsel for Calaveras County and as assistant county counsel for Yolo County. Ms. Stedtfeld and Ms. Strottman worked together as in-house and outside counsel to represent Calaveras County against PG&E in another wildfire case that resulted in a $25.4 million recovery for the county.
Katherine Boniface is a project geologist with Group Delta, a firm providing geotechnical and environmental engineering, instrumentation, materials testing and inspection and construction support services to public agencies for more than 30 years.