Contaminated drinking water continues to top the list of concerns for utilities across the country. When it comes to contaminants like PFAS, many water industry associations and water providers don’t think that utilities should be left with the clean-up bill. Instead, they are lobbying regulators to hold polluters accountable and make the manufacturers of products that historically contained PFAS pay for expenses such as costly treatment facilities that are expected to be operational for decades.
That said, holding polluters accountable using the law may sound daunting or difficult for water providers of all sizes. Undoubtedly, questions begin to arise such as what the process will look like, who to hire, what to expect in terms of outcome, what the timeline might be, what kinds of costs are involved, and what the public will think when they hear their water is contaminated by PFAS and their local supplier is involved in litigation.
In this blog post, SL attorneys Ken Sansone and Michael DiGiannantonio, who focus exclusively on representing public entities in water contamination cases, answer some of the most common questions and concerns they hear from water suppliers to unpack a process that feels complex to those of us who aren’t lawyers.
Sansone: No, unfortunately, contamination of water supplies has a long history.
About 20 years ago we started representing water providers who were dealing with contamination from MTBE, an additive that big oil companies put into gas. This toxic chemical leaked into water supplies from underground storage tanks at gas stations, whose owners didn’t know about the health risk of the MTBE. By suing the oil companies, we were able to shift the treatment costs, which can be in the hundreds of millions of dollars, from ratepayers to the MTBE polluters.
We have also recovered costs for dozens of California communities impacted by 1,2,3,-TCP, a likely carcinogen present as a by-product in agricultural fumigants that entered the soil and eventually found its way into the groundwater.
Fundamentally, product defect law holds the manufacturers of defective products like these responsible for the harm they cause. PFAS is the same: the manufacturers knew or had reason to know that these products would pollute groundwater, yet they failed to take steps to avoid the use of PFAS in products and failed to provide warnings that using these products as directed could result in water contamination.
Sansone: In general, there is a lot more awareness. The public wants to know the source of the environmental problems that we are facing today and not only how we are going to fix them, but how we are going to prevent them from happening in the future. Holding corporations accountable by law is one way.
Municipalities are facing significant costs for contaminant removal because of these dangerous and defective products that were manufactured by big corporations who profited from selling them without warning of the dangers. For water providers, holding the polluters accountable can be an effective and responsible course of action.
DiGiannantonio: In terms of PFAS, a lot of increased awareness is also coming from new state mandates that require testing water supplies, which exposes the prevalence of PFAS. This, in turn, results in new regulatory mandates.
More states are implementing maximum contaminant levels (MCLs) that require water systems to sample for PFAS in all their supplies. If PFAS is found in concentrations above these regulatory limits, water suppliers legally need to act, and this can come at significant cost. Because these toxic chemicals have been used in products for decades, PFAS contamination really has no boundaries. As municipalities discover these chemicals and the public is made aware of how pervasive and toxic they are, they want accountability and cost recovery for the cleanup. This almost always means a lawsuit against the responsible manufacturers.
DiGiannantonio: Some water providers have concerns that filing a lawsuit will raise a red flag that they have a contamination issue, but we have yet to see a public backlash. In fact, it seems to be the opposite: ratepayers appreciate the practical approach, where their water suppliers take necessary legal action to ensure that the ones who polluted the water are the ones who pay to clean it up. In most cases, when contamination levels exceed a regulatory or proposed limit and the source of that contamination is known, the public pushes for action. Since public knowledge of PFAS contamination is steadily growing, we’re seeing even more support for PFAS litigation.
Sansone: Understandably, everyone wants to know the answer to this question, but it really depends on the circumstances. In some of our TCP cases we’ve been able to get settlements in as few as 18 months. This is because we’ve been able to leverage the fact that there have already been years of litigation over that contaminant, and use strategies such as moving from state to federal court like we did on behalf of Golden State Water Company.
DiGiannantonio: In terms of PFAS, we have to look at where we are in the current state of the ongoing litigation. There is a large, consolidated group of cases pending in federal court in South Carolina where almost all of the cases brought by water providers have been transferred. The “bellwether cases” for the water suppliers are set to be tried in the first half of 2023. As a result of those first trials, both the water suppliers and the defendants will get an idea of what will happen when juries hear these cases. This might in turn help both sides resolve all of the remaining claims. That will be an important waypoint on the journey of the resolution of PFAS cases, and we expect to get there relatively soon.
DiGiannantonio: Many municipalities and other water utilities across the U.S. claiming that their water supplies are contaminated with PFAS from aqueous film-forming foam (AFFF) have had their cases grouped together before the same court in what is known as a multidistrict litigation (MDL). AFFF was used to extinguish oil and chemical fires at places like airports and military bases and is a commonly identified source of PFAS contamination. But there are many cases in the MDL claiming PFAS contamination from both AFFF and other PFAS-containing products.
An MDL generally has a lot of advantages:
An MDL is different from a class action. A class action is one lawsuit involving many plaintiffs. An MDL is a collection of many lawsuits involving similar subject matter. The whole purpose of the MDL is to consolidate the beginning stages of litigation while reserving every plaintiff’s right to take its own case to trial. There is no requirement that everyone be the same or that they be represented by a lawyer selected by the court. If a plaintiff does not feel the defendant’s settlement offer is fair, that plaintiff can try to negotiate its own settlement. If the plaintiff is still not happy with the offer, it can go to federal court in its home state and bring the case to trial there.
DiGiannantonio: In our case, we work on a contingency fee basis and there are no up-front costs. We advance all of our clients’ litigation costs, including filing fees, cost of electronic processing of documents that are required, expert witness consultation, and any other legal costs necessary to get to a settlement or verdict. These costs are recouped out of the settlement or verdict.
Sansone: In our experience, when you are talking about something like PFAS which is easily traceable to the manufacturers, the only legal option available is a lawsuit. That said, we encourage clients to pursue any state or other government funding that may be available in parallel to a lawsuit.
DiGiannantonio: Most state revolving funded federal appropriation monies are for expenses like preliminary engineering, site evaluation, and construction of treatment plants, but not for the long-term expenses of operating those plants, which is where the biggest costs will be.
DiGiannantonio: Ask about the costs. Hourly firms can be costly, so you need to ensure you can pay those rates or choose a firm that works on contingency. Also, look at the credentials of the firm. Have they tried similar cases, do they come with a good reputation, and are they communicative? Like you would when hiring any other contractor, you can ask for references and see if they are working with other water providers in your area that you can talk to.
Sansone: Experience in contamination is also important. These cases involve many complicated legal, factual and scientific issues that can only be handled skilfully by lawyers who have the experience. Firms that represent water systems know the kinds of calculations that need to be done to determine the impact of a contaminant and the cost of cleanup. They will also have the right subject matter experts to justify the maximum cost of cleanup. An experienced team will also help minimize the demands on staff, as they know what to ask for and what to look for when it comes to collecting information.
DiGiannantonio: Yes, there is a statute of limitations that applies to every legal claim. Outside of special circumstances, claims brought after the statute has run out cannot be brought to court, no matter how valid or valuable they are. The time to bring a lawsuit varies from state to state, but can be as short as two years, and what triggers the clock can also vary from state to state.
In terms of PFOA and PFOS, there are only two corporations responsible for manufacturing products that contained the chemicals: 3M and DuPont. It’s often advisable for water providers that are already dealing with these contaminants to file a suit against these manufacturers. After the suit is filed, an experienced legal team can determine how these chemicals got from these manufacturers’ products into the water supply.
Also, in general, plaintiffs who file suit earlier have more of an opportunity to be involved in settlement negotiations, particularly if they file before significant litigation events, such as the conclusion of bellwether trials in MDLs.
To learn more about legal options for your specific utility, the next step is to set up a confidential and complimentary call with our team. During this call we will discuss current and upcoming regulations that may impact you, different treatment options and associated costs, an appropriate messaging strategy to keep your community informed, and advice on potential litigation. Water contamination is no small hurdle, and we understand that deciding to hold polluters accountable using a legal strategy is a big decision. We are also happy to put you in touch with other water systems who have taken this approach and recovered the costs to deliver safe drinking water to their community.