The makers of toxic firefighting chemicals found last year in Emmaus’ drinking water knew they were harmful but failed to replace them with safer alternatives or warn users to avoid releasing them into the environment, the borough alleges in a lawsuit seeking money to pay the cost of cleaning up the pollution.
The borough filed the lawsuit last month in Lehigh County Court, joining local and state governments across the country seeking damages from companies that produced and sold chemicals called perfluoroalkyl substances (PFAS) used in firefighting foam and consumer products such as nonstick pans, stain-resistant coatings and waterproof clothing.
The substances are known as forever chemicals because they don’t break down naturally and accumulate in people and animals. Exposure has been linked to health problems, including increased cancer risk and decreased fertility.
The suit names as defendants more than two dozen companies, including 3M Co., DuPont de Nemours and Tyco Fire Products, that sold aqueous film-forming foam, which was originally developed for the military to extinguish fuel fires. The products were used for decades at the borough’s firefighting training grounds on Klines Lane and other locations in the area including Lehigh Valley International Airport, the suit says.
The Pennsylvania Department of Environmental Protection found the chemicals in “alarming concentrations” in Emmaus’ drinking water. Since then, the borough has taken one well out of service and is working with the DEP to get a permit to install filtration systems to remove PFAS from the water.
The borough said it will also bear the cost of identifying, analyzing and remediating PFAS contamination in its wastewater and stormwater systems, streams and other resources indefinitely.
“In short, the borough and its residents have suffered and will continue to suffer injuries as a result of Defendants’ conduct,” the suit says.
Borough Manager Shane Pepe said the cost to install filtration systems on two of the wells will be at least $2.2 million, not including $60,000 each year to replace the filtration material. The cost of tracking and treating pollution in stormwater and wastewater is unknown, he said.
“We have to monitor that. There are going to be ongoing costs that we have to deal with to track that down and monitor it,” Pepe said. “We don’t know the answer yet. We just know that there are going to be costs associated with this.”
Tyco on Wednesday filed papers asking for the lawsuit to be moved to federal court, citing the right of federal contractors to immunity from liability for products made to military specifications. An attorney for the company did not return calls.
Tests of Emmaus’ wells found levels of two types of PFAS, perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS), far in excess of the Environmental Protection Agency’s health advisory level of 70 parts per trillion. One well registered 10 times that level in a test conducted by the borough but less (456 parts per trillion) in a DEP test. The other registered at 111 parts per trillion.
While the borough’s drinking water is officially safe to drink, that’s only because the Pennsylvania Department of Environmental Protection has no maximum contaminant level for PFOA or PFOS, Pepe said. The DEP is accepting comments until April 27 on proposals to set the maximum levels at 14 parts per trillion for PFOA and 18 parts per trillion for PFOS.
“Technically, yes, it’s considered safe to drink. However, long-term exposure can have complications,” Pepe said.
Pepe said he worries that when a maximum level for the chemicals is established, the scope of the problem for Emmaus and other municipalities will grow larger as additional remediation is required.
Emmaus isn’t alone in its fight for PFAS makers to bear the costs of dealing with the pollution.
Last month, Bucks County and its district attorney’s office filed a lawsuit against 3M, DuPont, Tyco and other PFAS makers. Like Emmaus, the Bucks County suit alleges the companies knew of the danger but didn’t disclose it.
PFAS have been found in levels above the EPA advisory in Warrington and Warminster, as well as Horsham in Montgomery County, where they have been linked to firefighting foams used at a trio of military bases there. They’ve also been found elsewhere in Bucks County, in water, soil and other natural resources, county Commissioner Bob Harvie said.
Emmaus has hired the Wilmington, Delaware, law firm Grant & Eisenhofer, which specializes in environmental litigation, to handle its PFAS claims. Pepe said there is a strong likelihood that the suit will become part of a multidistrict case in which one federal court hears many unrelated cases from around the country with common defendants.
In addition to claims about pollution specific to Emmaus, the 54-page lawsuit includes a history of PFAS products alleging that 3M, the original producer of PFOA and related chemicals, knew as early as the 1950s that the chemicals were toxic. Further studies on monkeys and rats in the 1970s revealed they were “more toxic than anticipated.”
In spite of this, 3M continued to produce PFOA, which it sold to DuPont and other manufacturers until 2000. When 3M ceased production, DuPont began producing the substance itself, the suit says. 3M never published its toxicity studies and hired an expert in environmental toxicology to influence academic research of the chemicals. It also advised employees not to put their thoughts and research concerning the chemicals into writing because it would become evidence in litigation, the suit says.
The makers eventually transitioned to different compounds, claiming they were safer for the environment and human health. The suit alleges the companies could have made the transition much sooner and the fact that they failed to do so confirms that their PFAS-based products were not safe for their intended uses, the suit claims.
It notes that firefighting foam free of PFAS compounds has been in use at many of the world’s largest airports for many years and leading fire safety and regulatory experts said there was no justification for continuing to use toxic versions of the product.
Morning Call reporter Peter Hall can be reached at 610-820-6581 or peter.hall@mcall.com.
