Nantucket airport lawsuit blames chemical companies for PFAS contamination - and wants them to pay

NANTUCKET — Nantucket Memorial Airport, which is now paying to clean nearby drinking water contaminated by its decades of using PFAS-containing firefighting foam, has filed a lawsuit against the constellation of high-profile global companies that made and sold the products.

The lawsuit was filed Aug. 31 by the New York-based firm Napoli Shkolnik in the Massachusetts Superior Court of Nantucket County on behalf of the Nantucket Memorial Airport Commission. The suit names dozens of defendants, including 3M, DuPont, Chemguard Inc., Tyco and a slew of “Doe” defendants that have yet to be identified. Some of the defendants, including DuPont, are among the most profitable chemical companies in the world.

“These companies were aware of the negative impacts of these chemicals for decades and decades and continued to produce them,” Hank Naughton, an attorney with  Napoli Shkolnik, said Tuesday. “If it's in your water, it came from one of these companies.”

In addition to monetary damages for past, present and future costs related to PFAS contamination, the airport commission is seeking a declaration that the companies named in the lawsuit acted with "negligence, gross negligence, and/or willful, wanton, and careless disregard" for health, safety and property. 

The Nantucket airport is one of thousands of entities nationwide now seeking compensation from chemical companies for the cost of remediating drinking water contamination caused by PFAS-containing firefighting foam — which was used during fire training and equipment maintenance exercises mandated by the federal government.

The airport has already encumbered more than $5 million in PFAS-related costs.

The airport’s lawsuit could be among the first in a new wave of lawsuits by Massachusetts plaintiffs now coping with PFAS contamination, according to Naughton.

Massachusetts is one of only a few states that have set drinking water standards for PFAS, or per- and polyfluoroalkyl substances, a class of thousands of human-made compounds that are linked to health problems ranging from cancer to immune system problems.

As the Massachusetts standard goes into full effect — PFAS sampling will be required of smaller water systems Oct. 1 — water suppliers will have to pay to remediate the contamination to bring water systems into compliance.

Naughton said he thinks many will now want compensation from the companies that made and sold PFAS-containing products without warning consumers and governments about the risks they posed to human health and the environment.

“We're predicting that probably half of the water utilities in Massachusetts will be impacted above the 20 parts per trillion" drinking water standard for PFAS set by the Massachusetts Department of Environmental Protection, Naughton said, adding that his firm is already representing several dozen Massachusetts plaintiffs. “It’s really just starting.”

Drinking water contaminated

The PFAS contamination coming from Nantucket Memorial Airport first came to light after the state DEP asked the airport to begin investigating the historical use of PFAS-containing firefighting foam on the property, according to Nantucket Memorial Airport Assistant Manager Noah Karberg.

That request, delivered in March 2019, kicked off informal interviews with the airport’s longest-serving employees. Using old records and airfield maps as memory triggers, staffers tried to build a timeline detailing every time PFAS-containing firefighting foam was released on the property.

Because of federal regulations, airports across the country still keep PFAS-containing firefighting foam for use in a fuel fire emergency, Karberg said. But the last time the foam was sprayed on the ground at Nantucket Memorial Airport was during a fire equipment maintenance exercise in fall 2018, he said.

Airport staff couldn’t determine the first time firefighting foam containing PFAS was used there. Nantucket airport's longest-serving employee remembered using the foam during their first year on the job in the late 1980s.

“We know it’s been applied since at least 1987,” Karberg said. “It's likely that the foams were used in the '70s and '80s, it's just we no longer have any records about where and when and how much.”

In February 2020, water samples taken at airport and downgradient wells at the request of DEP showed PFAS levels above the state drinking water standard of 20 parts per trillion.

While the full extent of the plume is still being mapped, testing shows PFAS contamination has reached several private drinking water wells downgradient of the airport, including several at homes along Madequecham Valley Road.

In addition to providing bottled water, the airport has paid to install 18 point-of-entry treatment systems to clean the water coming from affected wells, according to Karberg.

“We’re also working now to extend a water main to that area of the island, which will sort of prove to be the ultimate solution,” Karberg said. “The municipal water system draws from a deeper aquifer that is now tested quarterly by the state, and it’s good water.”

What’s next?

Under the direction of the DEP, the airport is now investigating the full horizontal and vertical extent of PFAS contamination caused by the use of firefighting foam at the airport. 

“From there, we'll identify and work with the DEP on which solutions are going to be appropriate,” Karberg said. “That could mean capping, it could mean on-site engineered storage, it could mean removal. But we haven't identified those specific solutions yet.”

As is the case with Cape Cod Gateway Airport in Barnstable, which is investigating the scope of PFAS contamination caused by the use of firefighting foam there, consultants will also be looking for other parties that might bear some financial responsibility for the contamination.

“I think we have a really good understanding of what areas are impacted by airport activities,” Karberg said. “The item we don't have a really good handle on yet is on what other third-party contributors we have.”

“The airport, at the end of the day, is not the only actor,” he added. “This is a ubiquitous contaminant that a lot of people are using and have been using.”

What did the companies know?

PFAS is ubiquitous, the airport’s lawsuit contends, because the companies that made and sold the compounds for use in products like firefighting foam didn’t warn governments or the public about the risks they posed to human health and the environment.

"Defendants knew that it was substantially certain that their acts and omissions ... would contaminate Plaintiff’s wells and property," the lawsuit reads. "Defendants committed each of the ... acts and omissions knowingly, willfully, and/or with fraud, oppression, or malice, and with conscious and/or reckless disregard for Plaintiff's health and safety, and/or property rights."

The nearly indestructible nature of PFAS was apparent even in 3M’s 1948 patent for the process used to create the compounds, the lawsuit argues, and by 1950, the company knew PFAS wouldn’t degrade naturally once released into the environment.

Despite the completion of studies showing certain PFAS compounds were toxic to animals — including monkeys, all of which died during testing within days of ingesting PFAS-contaminated food — 3M and DuPont decided in 1979 that there was “no reason” to notify the EPA that workers at the companies had high levels of PFAS in their blood, the lawsuit claims.

By the end of the 1980s, internal studies by the companies that made and sold PFAS-containing products, including 3M and DuPont, found elevated rates of certain cancers and other health problems including liver issues among company workers exposed to specific kinds of PFAS. 

“... But such data was not published, provided to government entities as required by law, or otherwise publicly disclosed at the time,” according to the lawsuit.

Now, entities like Nantucket airport are unfairly paying the price for using a PFAS-laden product required for safety drills mandated by the federal government, the lawsuit alleges.

PFAS costs stack up

Through the lawsuit, Nantucket Memorial Airport is seeking compensation for the costs associated with investigating, cleaning and monitoring the groundwater wells contaminated because of the airport's use of firefighting foam containing PFAS.

As is the case in Hyannis, costs are stacking up for the airport, which operates using its own budget separate from the town’s general fund.

The airport has either spent or encumbered $5.2 million in PFAS-related costs so far, according to Karberg. That’s roughly one-third of the airport’s annual operating revenue.

“That means other important aviation projects get pushed back by years, and it also increases the airport’s debt service, which is going to have long-term impacts on the projects we can bring forward,” Karberg said.

Where does the lawsuit go from here?

Naughton said his firm will now continue to pursue documents from the defendants through the discovery process.

He speculated that Nantucket Memorial Airport’s lawsuit could eventually be transferred from the Massachusetts court system to the U.S. District Court for the District of South Carolina. There, the court is hearing multi-district litigation against a long list of companies, including 3M and DuPont, that now involves more than 1,000 member cases — including one filed on behalf of Barnstable County in 2017 and one filed on behalf of the town of Barnstable in 2016.

Martha's Vineyard Airport, which is also coping with drinking water contamination caused by PFAS-containing firefighting foam, has also entered multi-district litigation to recoup financial losses, according to reporting by the Martha's Vineyard Times. It was unclear by deadline whether that lawsuit is part of the multi-district litigation in South Carolina.

Naughton noted that bellwether cases against the companies that made and sold products containing PFAS will likely ramp up in early 2023. 

“We're hoping by that point we are close to some level of settlement or we go to trial and then begin getting judgments against these companies,” Naughton said.

Contact Jeannette Hinkle at jhinkle@capecodonline.com.