Firefighting Foam Fabrications Facilitate Lawsuit

Firefighting Foam Fabrications Facilitate Lawsuit 

By: Johnathan Barnes

Introduction

The Attorney General of Michigan filed suit against thirteen companies who manufacture commercially available Class B aqueous film-forming foam (AFFF) seeking to hold them liable for damages to the State’s natural resources. One of the thirteen companies named in the complaint is Vulcan Fire Systems, Inc., a Kentucky corporation.

Commercial Class B AFFF is a firefighting foam used to extinguish flammable liquid fires. Class B AFFF is used commercially in industrial facilities, firefighting training, firefighting equipment testing, and in extinguishing flammable liquid fires, such as oil and gasoline.[1] When AFFF is released into the environment it produces per- and polyfluoroalkyl substances (PFAS).

PFAS substances are man-made chemicals that can result in adverse and serious health effects for exposed humans and animals, including but not limited to, liver damage, pregnancy complications, thyroid disease, and weakened immune systems.[2]

PFAS is known as a “forever chemical” which means that it is resistant to typical environmental degradation processes because the chemical doesn’t break down over time, but instead accumulates in the environment.[3] Due to these properties, PFAS is difficult and costly to remove from the environment.

Background

In late 2017 Michigan established the Michigan PFAS Action Response Team (MPART). Throughout the following years MPART conducted an investigation into PFAS contamination impact on the state’s environment with the goal to establish a new PFAS standard for drinking water.[4] In 2018, MPART sampled and tested drinking water sources for approximately 75% of Michigan’s residents and in 2019 MPART sampled and tested non-community public water sources not tested in the prior year.[5]

MPART’s two-year investigation led to the discovery of elevated PFAS concentration from commercial AFFF in lakes and waterways throughout Michigan.[6] This discovery compelled Michigan to issue multiple health advisories to the public. One health advisory discourages people from ingesting or coming into contact with PFAS foam on various lakes and streams in Michigan.[7] Health advisories have also been issued for human consumption of fish caught from various lakes and streams in Michigan.[8]

On August 3, 2020, at the end of MPART’s investigation, and after a recommendation from the National Marine Fisheries Service’s Independent Scientific Advisory Board, Michigan adopted new standards for appropriate PFAS levels in drinking water.[9] The old drinking water standard allowed for 70 nanograms per liter of PFAS to be present.[10] The new standard reduces the acceptable level of PFAS presence in drinking water to 16 nanograms per liter.[11]

Issue

Are the Commercial Class B AFFF manufacturers liable for the PFAS contamination found in Michigan’s environment?

Resolution

On August 25, 2020 Michigan’s Attorney General initiated a lawsuit against thirteen companies who manufacture Commercial Class B AFFF for violations of PFAS contamination in excess of the State’s drinking water standards. The suit alleges multiple violations of Michigan’s Natural Resources and Environmental Protection Act, trespass, public nuisance, and unjust enrichment.[12]

Michigan alleges that the defendant manufacturers knew that PFAS substances contained in Commercial Class B AFFF were toxic and posed a substantial health and environmental risk.[13] That the defendant manufacturers knew or reasonably should have known that PFAS released from Commercial Class B AFFF would contaminate and harm the State’s public health and environment.[14] That the defendant manufacturers intentionally concealed the dangers of Commercial AFFF from government entities and falsely promoted Commercial AFFF as safe and appropriate for widespread use.[15]

Michigan strengthens their allegations by noting that neither the State of Michigan nor and private companies inside of Michigan provided defendant’s with any specifications about how Commercial Class B AFFF was manufactured.[16] Michigan also points out that at all times the defendant manufacturers have possessed superior knowledge about the nature and properties of Commercial Class B AFFF and PFAS.[17] And because of defendant manufacturers vast economic and analytical resources, they have always been in the best position to know of the threat posed by Commercial Class B AFFF and that they had a duty to disclose such dangers.[18]

Defendant manufacturers can be expected to claim that Commercial Class B AFFF is safe for public and widespread use. If Commercial Class B AFFF is proven to be unsafe then defendant manufacturers will likely claim that they had no knowledge of the dangers. Alternatively, defendants may argue that they conducted proper testing during the development and manufacturing of Commercial Class B AFFF so that they should not have reasonably known of the dangers. Defendants also will likely dispute that they are responsible for all PFAS contamination present in the State of Michigan. Finally, if Defendants are held liable they may dispute Michigan’s new PFAS contamination standard for drinking water, seeking to have a higher allowance of PFAS contamination in drinking water which would decrease the amount of PFAS removal Defendants would be liable for.

Conclusion

If the Michigan Attorney General’s suit is successful it will provide a pathway for all states to remedy PFAS contamination damages to their environment caused by Commercial Class B AFFF. Kentucky could bring similar claims under the state’s National Environmental Policy Act which is similar to the state law the Michigan Attorney General is using to support the lawsuit. However, due to the difficult and expensive nature of removing PFAS from the environment this may not be a long-term solution. The thirteen companies currently named in the suit only have so much money and would likely fail if required to remove PFAS from the entire United States’s environment. While it is possible that other companies can be added to this lawsuit, this makes it even more imperative for states to act quickly if this suit is successful. 

[1] Complaint at 5, Dana Nessel v. Chemguard, Inc., et al, No. 20-000458-CE (Mich. Cir. Ct. 2020).

[2] See U.S. Dep’t of Health and Human Services, Agency for Toxic Substances and Disease Registry, Toxicological Profile for Perfluoroalkyls, Draft for Public Comment, p 1-2 (June 2018) (available at https://www.atsdr.cdc.gov/toxprofiles/tp200.pdf) (accessed October 29, 2020.)    

[3] Id.

[4] Complaint at 37, Dana Nessel v. Chemguard, Inc., et al, No. 20-000458-CE (Mich. Cir. Ct. 30th 2020). 

[5] Id. at 40-41.

[6] Id. at 42.

[7] Id.

[8] Id. 

[9] Id. at 39.

[10] Id.

[11] Id.

[12] Id. at 53-74.

[13] Id. at 32.

[14] Id. at 33.

[15] Id.

[16] Id. at 43.

[17] Id. at 35.

[18] Id. at 36.