Montgomery County

Fort Plain sues makers of firefighting foams allegedly contaminating groundwater wells

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FORT PLAIN The village of Fort Plain is suing the makers and distributors of firefighting foams containing hazardous chemicals that are allegedly responsible for contaminating a pair of local groundwater wells.

Napoli Shkolnik law firm filed the suit on behalf of the village in state Supreme Court in Montgomery County last month. In total, 23 companies are named as defendants, including 3M, DuPont, Kidde-Fenwal and Tyco Fire Products.

The suit stems from the discovery of perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) exceeding state standards in water samples taken from the village groundwater wells on Lincoln Street in December 2020.

Officials believe the wells were contaminated by the use of firefighting foam in the area during past training exercises by the Fort Plain Fire Department. The lawsuit states firefighters were “unaware of the environmental risks and health risks” posed by the substances. The state banned firefighting foams containing the chemical groups in early 2020.

Both kinds of acid are part of a group of synthetic chemicals capable of repelling oil, grease and water that don’t break down naturally. The compounds, which were developed in the 1960s to protect consumer goods, were common in household items and used in firefighting foams until recently.

The hazardous chemicals are now associated with several adverse health effects, including certain cancers. The substances commonly referred to as “forever chemicals” have been increasingly found in soils and waters.

“When this stuff first came out, nobody knew there were any type of contaminants,” Fort Plain Mayor Patrick Hanifin said.

The Lincoln Street wells have not been used since the chemicals were discovered, according to Hanifin, who reassured residents that the village’s water supply is safe to use and drink.

“That well has not been used since we found out about the higher levels of PFOA. It never went directly into our drinking water source,” Hanifin said Monday.

The wells, which have a capacity of 500,000 gallons per day, were only used occasionally to boost water pressure, Hanifin said. The North Creek watershed was already the main source of water before the wells were taken offline.

“Now we’re just running strictly off of our watershed,” the mayor said. “All of that water has tested fine.”

The village supplies water to around 2,250 residents with a combined average daily demand of about 191,000 gallons. In 2020, the groundwater wells produced about 2.5 million gallons of water, while the watershed supplied about 76.71 million gallons.

After the contamination was discovered, the village was approached by Napoli Shkolnik about the potential to bring a lawsuit against makers and distributors of the foam. The firm represents water districts and treatment plants across the country trying to recoup remediation costs related to PFOS and PFOA contamination. The village Board of Trustees authorized entering an agreement with the law firm to pursue the suit without any upfront costs, according to Hanifin.

“We had nothing to lose,” Hanifin said.

Among the counts alleged in the lawsuit are defective design, failure to warn, negligence, public and private nuisance and trespassing related to the contamination.

The suit also claims that 3M and DuPont, by the 1970s, knew or should have known PFOA and PFOS are “mobile and persistent, meaning that they readily spread into the environment where they break down very slowly; bioaccumulative and biomagnifying, meaning that they tend to accumulate in organisms and up the food chain; and toxic, meaning that they pose serious health risks to humans and animals.”

The village is seeking unspecified compensatory damages to cover the cost of investigative work to determine the full scope of contamination and to perform needed remediation and related work. Punitive damages and attorneys fees are also sought.

“If we are awarded any money, it would be used to clean up the well area, to go through the process of identifying what is contaminated and to get rid of the contamination, which can be a very expensive process,” Hanifin said.

Routine water sampling found levels of PFOS between 57.1 and 69.9 parts per trillion and of PFOA between 3.5 and 3.59 parts per trillion in the two wells. The maximum allowed levels of 10 parts per trillion, for both, was adopted at the state Department of Health’s recommendation in July 2020.

The U.S. Environmental Protection Agency earlier this year called for more stringent maximum allowed levels of 0.004 parts per trillion for PFOA and 0.02 parts per trillion for PFOS. The recommendations are undergoing review.

Village officials have not been provided any estimates of how long it may take for the lawsuit to be decided. But, Hanifin is hopeful the firm will pursue the case successfully.

In the meantime, he said the village is also pursuing grants to enable Fort Plain to perform the necessary cleanup on its own.

Reach Ashley Onyon at [email protected] or @AshleyOnyon on Twitter.

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