“A new lawsuit, letters from the New York State Department of Environmental Conservation (NYSDEC) to Superfund and brownfield sites across the state, and a bill awaiting the governor’s action all seem to have at least one thing in common. They are targeting the existence of the chemicals perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA) in the environment, with important implications for businesses and individuals in New York…

On June 19, 2018, the New York State Attorney General’s Office filed a lawsuit in the Supreme Court, Albany County (Index No. 904029/20018), against six companies—3M Company, Tyco Fire Products, Chemguard, Buckeye Fire Equipment Company, National Foam, Inc. and Kidde-Fenwal—alleging that they designed, manufactured, marketed and sold foams used to extinguish aviation fires and fires in aircraft hangars, to train firefighters and to test firefighting equipment at a number of military and civilian airports across the state. The complaint contends that the firefighting foams contained PFOS or PFOA or compounds that degraded into PFOS or PFOA.

According to the complaint, using the products as intended resulted in the release of PFOS and PFOA into the surrounding environment, contaminating drinking water, surface water, soil and fish. For example, the state alleged that the NYSDEC found concentrations of PFOS and PFOA in Lake Washington—one mile from Stewart Air Base and Stewart Airport and the primary drinking water supply for the City of Newburgh—as high as 282 parts per trillion (ppt), well over the EPA’s recommended concentration of 70 ppt. Samples of runoff from the airbase were found to contain concentrations as high as 6,080 ppt, surface water concentrations as high as 8,470 ppt, and groundwater samples as high as 3,640 ppt.

The complaint asserted state law causes of action for the creation of a public nuisance and strict products liability for defective design and for failure to warn. According to the complaint, the state’s response to PFOS and PFOA contamination from the airports already has cost the government an estimated $38 million, and it is seeking damages consisting of costs incurred and to be incurred by the state in investigating, monitoring, remediating and otherwise responding to injuries or threats to the public health and the environment caused by the defendants’ firefighting foam products, and damages arising from harm to the state’s natural resources. The state also is seeking punitive damages…

In announcing the lawsuit, the Attorney General’s Office indicated that it was the first-ever lawsuit brought by a state against the makers of firefighting products containing PFOS and PFOA seeking to recover costs incurred in the cleanup of the release of these chemicals from airports into the environment. If letters the NYSDEC recently sent to parties responsible for, investigating or remediating Superfund and brownfield sites across the state are any indication, other PFOS- and PFOA-related lawsuits and proceedings may be in the offing.

Last December, the NYSDEC sent emails requiring that Superfund and brownfield sites test their groundwater for PFOS and PFOA regardless of whether groundwater testing otherwise had been required or had been terminated in the past by the NYSDEC…

The letters said that the NYSDEC required the groundwater testing to be completed by the end of 2018. The letters recommended the laboratory test methods to be used and provided information on the analytical methods, reporting requirements and special precautions to be considered when sampling for these compounds.

The NYSDEC said that it might waive sampling on a ‘site-specific basis’ if sampling is not feasible because a site no longer has any monitoring wells in place or for other reasons. In these situations, the NYSDEC added, it would first consider potential sources of these chemicals and whether there are nearby water supplies. It would appear, however, that no site is guaranteed a waiver, even if it has no monitoring wells.

The new testing requirement is for groundwater only, except if contamination is detected. In that case, the NYSDEC said, soil samples would need to be analyzed for PFOS and PFOA. The NYSDEC letters also suggest that soil sampling ultimately might be required when soil clean-up objectives (SCOs) are established for PFOS and PFOA…

As of this writing, Senate Bill 6655, which overwhelmingly passed the Senate and Assembly, awaits action by Governor Andrew M. Cuomo. The bill, which would take effect immediately, would amend certain subsections of Sections 1112 of the Public Health Law (PHL) with the goal of providing information about PFOS, PFOA and other chemicals to the public.”

Read the full article by Charlotte A. Biblow