Joshua Cohan, Anapol Weiss

Municipalities and individuals living near military bases are discovering that their water supplies have been contaminated by use of firefighting foam that contains chemicals causing life-threatening illnesses. Earlier this summer it was reported the EPA attempted to cover up a study regarding hazardous perfluorinated chemicals (PFCs) in America's drinking water. Firefighting foam containing PFCs has contaminated water across the country, and in our own backyards. While some contaminants can cause water to change colors or cause various odors, alerting individuals drinking the water of the potential contamination, PFCs cannot be seen or tasted. Residents in parts of Bucks and Montgomery counties have come to learn over the last few years that they have unknowingly been drinking and using water with these invisible but potentially deadly PFCs. The questions that residents and local governments face is who is to blame and who can be held accountable for this serious threat to public health.

Tens of thousands of residents right outside of Philadelphia in Warminster, Warrington and Horsham have had their drinking water directly impacted by PFCs. Some local residents have sought recourse by filing lawsuits in Bucks and Montgomery counties for the physical injuries and illnesses they have suffered as a result of unknowingly drinking and using PFC-contaminated water. A class action lawsuit has also been filed in the U.S. District Court for the Eastern District of Pennsylvania on behalf of local residents seeking medical monitoring and damages for declines in property value.

In addition to the lawsuits that have been filed in the Philadelphia area, a number of individuals and governmental entities have also filed lawsuits in New York, Colorado, Washington and Massachusetts, seeking damages for injuries to persons and property caused by water contaminated with PFCs. The scope of the contamination is far reaching as the water at over one hundred military bases across the country has tested positive for PFC contamination.

PFCs, which include perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA), are chemical compounds found in a variety of products, including Aqueous Film Forming Foam (AFFF), a firefighting suppressant agent. A number of chemical companies and firefighting product manufacturers sold AFFF to military bases for training exercises. For decades, the military bases washed the AFFF down the drain or let it leach into the ground where it was used. AFFF containing dangerous PFCs has not been used in recent years. Yet, AFFF continues to contaminate the local water supply because PFCs do not degrade; they remain in the environment and in the human body for years. Some companies are now producing and selling PFCs with shortened carbon chains, which they claim to be safer, but the true safety of these new compounds will not be known for years to come.

A prominent nonprofit environmental organization, the Environmental Working Group, recently found that up to 110 million Americans could have PFCs in their water. While this is a shockingly high number, the PFC contaminant levels in most Americans' drinking water is low enough that, at this time, it is not believed to pose a risk of harm. Americans that have or had high levels of PFCs in their water, however, are at a higher risk of developing a variety of serious cancers and diseases, including kidney and testicular cancers and autoimmune and thyroid diseases. For over 40 years, millions of Americans have been drinking PFC-contaminated water. Residents in Bucks and Montgomery counties are now facing the consequences of this widespread contamination.

The good news is that several concerned local governmental entities in Bucks and Montgomery counties have taken action to ensure their residents have clean water. In areas that have been impacted the most by this PFC water contamination, local governmental entities have installed new water filtration systems or supplied water from alternative sources. Unfortunately, these local governmental entities have incurred increased costs as a result of their remediation efforts and now must also seek recourse for the cost of remediating the PFC contamination.

At the end of the day, responsibility for this extensive water contamination lies with the manufacturers and sellers of the dangerous AFFF. The federal government is not believed to have known about the dangers of using AFFF containing PFCs. Additionally, any lawsuit against the government will undoubtedly run into issues of federal preemption. Although some residents may look to place the blame on local water companies and water authorities, these entities are victims of the contamination, just like the residents. By way of contrast, AFFF manufacturers are believed to have knowingly sold the dangerous AFFF products and failed to inform the AFFF users or the general public of its potential dangers.

Despite the seemingly clear liability on the part of a product manufacturer that puts a dangerous product into the market without adequate warnings, there are a number of legal hurdles that residents and local governments face in seeking recourse against these manufacturers. While there are many obstacles that stand between litigants and a potential recovery that could be examined, two of these obstacles are the government contractor defense and the large number of injured parties.

The manufacturers sold AFFF to the federal government for use at military bases pursuant to a government contract. Accordingly, the product manufacturers will argue that they are government contractors. Under the government contractor defense, a product manufacturer that creates a dangerous product pursuant to government specifications can be entitled to sovereign immunity under some scenarios. The applicability of the government contractor defense to these cases has yet to be determined but could be dispositive. If the product manufacturers are successful in the application of this defense, lawsuits against them would likely be dismissed.

Another potential obstacle concerns the sheer number of potential claimants with cases against the product manufacturers. As more and more people learn that they have been drinking water contaminated with PFCs, and more local governmental entities learn that they need to take steps to remediate their water supply, the number of lawsuits will continue to increase. Due to the serious nature of the injuries suffered by those who drank and used the contaminated water, the decrease in property values, the need for medical monitoring, as well as the need for widespread remediation of drinking water systems, the potential liability that these manufacturers face is likely to be hundreds of millions, if not billions of dollars. While some of the manufacturers are large corporations that can withstand the financial impact of the legal liability, there may come a point where the manufacturers run out of money to pay these claims.

Whether the manufacturers of the PFC containing AFFF will ultimately be held responsible remains to be seen. What we do know now is that this is a serious public health problem that will not be going away any time soon.

Joshua Cohan is an associate at Anapol Weiss and is a member of the firm's environmental and toxic tort team. Cohan currently handles water contamination cases and concentrates his practice on environmental and toxic torts, and both pharmaceutical and product liability mass torts. He can be reached via email at [email protected].