When it comes to drinking water contaminants like per and poly-fluoroalkyl substances (PFAS), many water industry associations, including the American Water Works Association and the Water Environment Federation, do not think that water utilities should be left with the cleanup bill.
Instead, they are lobbying regulators to hold polluters accountable and make the manufacturers of PFAS and the products that contained them pay for these expenses, including the costly treatment facilities that are expected to be operational for decades.
Attorneys Kenneth Sansone (top) and Michael DiGiannantonio (bottom) of SL Environmental Law Group (SL) focus exclusively on representing public entities in litigation over the contamination of public resources including water, land and other natural resources. Here, they weigh in on some of the questions they often get asked by water providers.
Is holding polluters accountable a new concept to water suppliers?
Sansone: No, unfortunately, contamination of water supplies has a long history. About 20 years ago, our firm started representing many water providers faced with contamination from MTBE, an additive that big oil companies put into gas. This toxic chemical leaked into water supplies from underground storage tanks at gas stations, whose owners did not know about the health risk of the MTBE. By suing the oil companies, we were able to recover hundreds of millions of dollars for communities to treat the contamination. We have also recovered costs for dozens of California communities impacted by 1,2,3 trichloropropane, known as TCP, a likely carcinogen present as a by-product in agricultural fumigants that entered the soil and eventually found its way into the groundwater. Fundamentally, the law holds the manufacturers of defective products like these responsible for the harm they cause. PFAS is the same: the manufacturers knew or had reason to know that these products would pollute groundwater, yet they failed to take steps to avoid the use of PFAS in products and failed to provide warnings that using these products as directed could result in water contamination.
Are efforts to hold these polluters accountable becoming more common, and why?
Sansone: In general, there is a lot more awareness. The public wants to know the source of the environmental problems that we are facing today and not only how we are going to fix them, but how we are going to prevent them from happening in the future. Holding corporations accountable by law is one way. Municipalities are facing significant costs for contaminant removal because of these dangerous and defective products that were manufactured by big corporations that profited from selling them without warning of the dangers. For water providers, it is the most responsible course of action.
DiGiannantonio: In terms of PFAS, a lot of increased awareness is also coming from new state mandates that require testing water supplies, which exposes the prevalence of PFAS. This, in turn, results in new regulatory mandates. More states are implementing maximum contaminant levels (MCLs) that require water systems to sample for PFAS in all their supplies. If PFAS is found in concentrations above these regulatory limits, water suppliers need to act, and this can come at significant cost. As these toxic chemicals have been used in products for decades, PFAS contamination really has no boundaries. As municipalities discover these chemicals and the public is made aware of how pervasive and toxic they are, they want accountability and cost recovery for the cleanup. This almost always means a lawsuit against the responsible manufacturers.
How does the public seem to react to these lawsuits?
DiGiannantonio: Some water providers have concerns that filing a lawsuit will raise a red flag that they have a contamination issue, but we have yet to see a public backlash. In fact, it seems to be the opposite: ratepayers appreciate the practical approach, where their water suppliers take necessary legal action to ensure that the ones who polluted the water are the ones who pay to clean it up. In most cases, when contamination levels exceed a regulatory limit (or proposed limit) and the source of that contamination is known, the public pushes for action.
How long does it take to receive a settlement or win a trial in one of these cases?
Sansone: Understandably, everyone wants to know the answer to this question, but it really depends on the circumstances. In TCP cases we’ve been able to get settlements in as few as 18 months, but this is because we’ve been able to use innovative approaches to leverage the fact that there have already been years of litigation over that contaminant.
DiGiannantonio: In terms of PFAS, we have to look at where we are in the current state of the ongoing litigation. There is a large, consolidated group of cases pending in federal court in South Carolina where almost all of the cases brought by water providers have been transferred. The “bellwether cases” for the water suppliers are set to be tried in the first half of 2023. As a result of those first trials, both the water suppliers and the defendants will get an idea of what will happen when juries hear these cases, which may help both sides resolve all of the remaining claims. That will be an important waypoint on the journey of the resolution of PFAS cases, and we expect to get there relatively soon.
Can you tell us more about the consolidated PFAS litigation – is it a class action?
DiGiannantonio: Many municipalities and other water utilities across the U.S. claiming that their water supplies are contaminated with PFAS from aqueous film-forming foam (AFFF) have had their cased grouped together before the same court in what is known as a multidistrict litigation (MDL) . AFFF was used to extinguish oil and chemical fires at places like airports and military bases and is a commonly identified source of PFAS contamination. But there are many cases in the MDL claiming PFAS contamination from both AFFF and other PFAS-containing products.
An MDL generally has a lot of advantages:
- It creates efficiencies for both the plaintiffs and defendants by pooling legal resources. Consolidating efforts toward discovery and pretrial motions saves time and money for both sides.
- It allows plaintiffs to work together to collect defendant documents and file motions in front of a judge that becomes very knowledgeable about this specific subject matter.
- It is also more efficient for the court system. The alternative is having all these cases progress at a different pace around the country, with potentially disparate rulings from different judges.
An MDL is different from a class action. A class action is one lawsuit involving many plaintiffs. An MDL is a collection of many lawsuits involving similar subject matter. The whole purpose of the MDL is to consolidate the beginning stages of litigation while reserving every plaintiff’s right to take its own case to trial. There is no requirement that everyone be the same or that they be represented by a lawyer selected by the court. If a plaintiff does not feel the defendant’s settlement offer is fair, that plaintiff can try to negotiate its own settlement. If the plaintiff is still not happy with the offer, it can go to federal court in its home state and bring the case to trial there.
What are the legal costs?
DiGiannantonio: In the case of SL Environmental Law Group, we handle all of these cases on a contingency fee basis and there are no up-front costs. We advance all of our clients’ litigation costs, including filing fees, cost of electronic processing of documents that are required, expert witness consultation, and any other legal costs necessary to get to a settlement or verdict. These costs are recouped out of the settlement or verdict.
What other legal options are there?
Sansone: In our experience, when you are talking about something like PFAS which is easily traceable to the manufacturers, the only legal option available is a lawsuit. We encourage clients to pursue any state or other government funding that may be available in parallel to a lawsuit. It is very unlikely that any government grant is going to cover all of the costs of building and running a treatment facility for decades.
DiGiannantonio: Exactly. Most state revolving funded federal appropriation monies are for expenses like preliminary engineering, site evaluation, and construction of treatment plants, but not for the long-term expenses of operating those plants, which is where the biggest costs will be.
How do you select the right law firm for the best results?
DiGiannantonio: Ask about the costs. Hourly firms can be costly, so you need to ensure you can pay those rates or choose a firm that works on contingency. Also, look at the credentials of the firm. Have they tried similar cases, do they come with a good reputation, and are they communicative? Like you would when hiring any other contractor, you can ask for references and see if they are working with other water providers in your area that you can talk to.
Sansone: Experience in contamination is also important. These cases involve many complicated legal, factual and scientific issues that can only be handled skilfully by lawyers who have the experience. Firms that represent water systems know the kinds of calculations that need to be done to determine the impact of a contaminant and the cost of cleanup. They will also have the right subject matter experts to justify the maximum cost of cleanup. An experienced team will also help minimize the demands on staff, as they know what to ask for and what to look for when it comes to collecting information.
Is there a statute of limitations on water contamination claims?
DiGiannantonio: Yes, there is a time limit that applies to every legal claim. Outside of special circumstances, claims brought after the statute of limitations has run out cannot be brought to court, no matter how valid or valuable they are. The time to bring a lawsuit varies from state to state, but can be as short as two years, and what triggers the clock can also vary from state to state.
In terms of PFOA and PFOS, there are only two manufacturers responsible for the manufacture of these products. It’s often advisable for water providers that are already dealing with these contaminants to file a suit against these manufacturers. After the suit is filed, an experienced legal team can determine how these chemicals got from these manufacturers’ products into the water supply.
Also, in general, plaintiffs who file suit earlier have more of an opportunity to be involved in settlement negotiations, particularly if they file before significant litigation events, such as the conclusion of bellwether trials in MDLs.
Ken Sansone, a partner with SL Environmental Law Group, focuses exclusively on representing public entities in litigation concerning environmental contamination of public resources.
Michael DiGiannantonio is an attorney at SL Environmental Law Group, focusing on protecting the public and environment. He is a former senior enforcement counsel and a former federal law clerk and professor of legal writing.
