PHILADELPHIA – Delaware County is pursuing legal action against more than two dozen companies it accuses of polluting its groundwater through the use of its products containing per- and polyfluoroalkyl substances (PFAS), with private counsel attached to the case to receive a 25 percent contingency fee from any damages recovered.
The Commonwealth of Pennsylvania (acting by and through Delaware County District Attorney Jack Stollsteimer), Primos-Secane Westbrook Park Fire Company No. 5 of Upper Darby Pennsylvania, Inc. and Delaware County first filed suit in the Delaware County Court of Common Pleas on May 12 versus 3M, E.I. DuPont De Nemours and Company, The Chemours Company, LLC, Tyco Fire Products, LP and dozens of other companies.
According to records obtained by the Pennsylvania Record through an Open Public Records Act request, private counsel representing the County will receive a 25 percent contingency fee from any damages recovered in the case.
The case was removed to the U.S. District Court for the Eastern District of Pennsylvania on June 18, then transferred to a multidistrict litigation proceeding that houses hundreds of similar cases in South Carolina.
According to the litigation, the defendants are all manufacturers of fire suppression products, including aqueous film forming foam (AFFF), which contained water-soluble toxins such as perfluoroctanoic acid (PFOA) and perfluoroctanesulfonic acid (PFOS), which have been in production use for more than 60 years.
PFOA and PFOS are part of the PFAS family. Consumer products like Teflon, Scotch guard, waterproofing compounds, stain proofing compounds, paper and cloth coatings, waxes, and various other products were popular uses for PFAS.
“AFFF is a type of water-based foam that was first developed in the 1960s to extinguish flammable liquid fuel fires at airports and military bases, among other places. The AFFF designed, manufactured, marketed, distributed, and/or sold by defendants contained either or both PFOA and PFOS, or the chemical precursors to PFOA or PFOS. PFOS and/or the chemical precursors to PFOS contained in 3M's AFFF were manufactured by 3M's patented process of electrochemical fluorination,” the suit says.
“All other defendants manufactured fluorosurfactants for use in AFFF through the process of telomerization. Telomerization produced fluorotelomers, including PFOA and/or the chemical precursors to PFOA. AFFF can be made without PFOA, PFOS, or their precursor chemicals. Fluorine-free foams and short-chains foams do not release PFOA, PFOS, and/or their precursor chemicals into the environment.”
Injuries are not sudden and can arise months, years or decades after exposure to PFOA and PFOS.
Though 3M ceased production of AFFF manufactured with PFOA and PFOS in 2002, the suit says it allegedly knew of the risks it would pose to both the environment and human health, as far back as the 1980's.
Delaware County's lawsuit is predicated on groundwater and soil samples from three locations: The plaintiff fire company in Upper Darby where PFOA and PFOS were found in some places at hundreds of times above the EPA limit; A recycling and fire training center at Haverford Township,, where PFOS was found in seven out of 10 soil samples, and at the county’s emergency services training center at Sharon Hill, where one PFOS sample registered at 700 times the EPA limit.
States are imposing their own PFAS regulations and hiring private lawyers to file lawsuits, while Democrats in Congress push for putting a label on PFAS that will lead to litigation against more defendants.
While the Environmental Protection Agency has referenced possible carcinogenic potential for PFAS, others complain that it’s all too premature and that the exact health effects of PFAS in the human body aren't known yet.
3M previously issued a statement saying it “acted responsibly” with respect to its PFAS-containing products.
“3M acted responsibly in connection with its manufacture and sale of AFFF (aqueous film-forming foam) and products containing PFAS. We will continue to vigorously defend our record of environmental stewardship,” said Sean Lynch, Media Relations Specialist for 3M.
The plaintiffs are represented by Jerry DeSiderato of Dilworth Paxson in Philadelphia, with additional pending representation from Baron & Budd in Dallas, Texas and Cossich Sumich Parsiola & Taylor, in Belle Chasse, La.
The Chemguard and Tyco defendants are represented by Archer & Greiner, in Haddonfield, N.J.
U.S. District Court for the Eastern District of Pennsylvania case 2:21-cv-02743
Delaware County Court of Common Pleas case CV-2021-004523
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com