California Files Water Contamination Lawsuit Against Makers of Toxic Firefighter Foam and PFAS Chemicals

Last week, California became the first state to file a water contamination lawsuit against 3M, DuPont and other manufacturers of firefighting foam and PFAS chemicals that have been widely used over the past several decades, indicating that the state’s drinking water supply has become tainted with the toxic chemicals.

The complaint (PDF) was filed by Rob Bonta, the state’s attorney general, in California Superior Court in Alameda on November 10. It names 18 chemical and safety equipment companies, all of whom manufactured aqueous film-forming foam (AFFF) used in firefighting or per-and polyfluoroalkyl substances (PFAS), also known as forever chemicals, since they are known to build up in the body and environment, causing a variety of serious health risks.

PFAS “Forever Chemical” Concerns

PFAS are a group of over 9,000 man-made chemicals which have been frequently used in consumer and industrial products to resist grease, oil, and water since the 1940’s.

While they are widely found in products like non-stick pans, pizza boxes an other material, the chemicals have caused widespread water contamination problems from firefighting foam, which has been used to combat fuel based fires for decades, particularly at military bases, airports and other firefighter training locations.

As a result of the harmful effects of the chemicals, many of the same manufacturers face hundreds of firefighting foam cancer lawsuits brought by former users, alleging that they were not adequately warned about the health risks. In addition, a number of communities and local water suppliers have also filed lawsuits over the costs associated with cleaning up the chemicals from drinking water.

The same manufacturers also face an increasing number of PFAS water contamination lawsuits brought by individuals diagnosed with pancreatic cancer, liver cancer, bladder cancer, testicular cancer, kidney cancer or ulcerative colitis, following years of drinking tap water that has been found to contain high levels of the chemicals from firefighter foam, particularly near military bases and other locations where PFAS was released into the water system.

In the California water contamination lawsuit, Bonta says 3M and other manufacturers kept producing the chemicals after they knew they were toxic and a risk to human health and the environment, and then tried to hide their side effects from the public.

“PFAS are as ubiquitous in California as they are harmful,” Bonta said in a press release announcing the lawsuit. “As a result of a decades-long campaign of deception, PFAS are in our waters, our clothing, our houses, and even our bodies. The damage caused by 3M, DuPont, and other manufacturers of PFAS is nothing short of staggering, and without drastic action, California will be dealing with the harms of these toxic chemicals for generations. Today’s lawsuit is the result of a years-long investigation that found that the manufacturers of PFAS knowingly violated state consumer protection and environmental laws. We won’t let them off the hook for the pernicious damage done to our state.”

California’s investigation determined 3M, specifically, knew PFAS were toxic and harmful to humans and the environment following internal testing conducted in the 1950s. The manufacturers knew it was leaching into the drinking water supply by the 1960s, and had discovered it was bioaccumulating in humans by the 1970s.

The investigation also determined that PFAS have been found in at least 146 public drinking water systems in California, which serve 16 million people across the state. PFAS are found across the state in surface waters, drinking water and groundwater, with the highest concentrations near airports, refineries, chrome plating facilities, military bases and landfills, according to the press release.

The lawsuit presents claims of public nuisance, failure to warn, strict product liability – defective and ultra hazardous product, unlawful business practices, negligence per se, and fraudulent transfer. The lawsuit calls for defendants to conduct statewide treatment and destruction of PFAS in drinking water, private wells, unregulated drinking water and irrigation systems, and water from wastewater treatment plants. It also demands the companies pay for environmental testing, medical monitoring, public notices and replacement water while systems are being tested and treated.

November 2022 Firefighting Foam Water Contamination Lawsuit Update

While California’s lawsuit is filed in its state court, most complaints brought by individuals diagnosed with cancer and municipalities left with costs associated with removing the chemicals from their water systems have been filed in federal court. Given common questions of fact and law presented in the claims, all federal water contamination lawsuits over PFAS chemicals in AFFF are currently centralized before U.S. District Judge Richard M. Gergel in the District of South Carolina, for coordinated discovery, pretrial proceedings and a series of early bellwether trials, which are expected to begin next year.

Early in the pretrial proceedings, Judge Gergel has established a “bellwether” program that started with a group of water contamination cases going through case-specific discovery in preparation for a series of early trial dates, that are expected to begin in mid-2023.

If parties do not reach an firefighting foam water contamination settlement agreement once the pretrial proceedings and bellwether test trials are completed, or the litigation is otherwise resolved, the cases will be remanded back to their originating federal court districts for trial.