Baltimore City Files Water Contamination Lawsuit Against Manufacturers of Toxic PFAS Chemicals

Manufacturers should have known the chemicals in firefighting foam would lead to water contamination from toxic PFAS chemicals, according to the complaint

Following a recent investigation that found high levels of per- and polyfluoroalkyl substances (PFAS) from toxic firefighter foam in Baltimore drinking water, the City has filed a lawsuit against 3M and other chemical manufacturers responsible for the contamination.

The Maryland Department of Public Works issued a water quality report last summer, which warned that the Baltimore drinking water supply, which serves more than 1.8 million area residents and businesses in the City and County, contained high enough levels of PFAS to raise concerns about public health, according to U.S. Environmental Protection Agency (EPA) standards.

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 found in a number of consumer products, the chemicals have caused widespread water contamination problems from firefighting foam, which has been widely used for decades on military bases, airports and other training locations to combat fuel-based fires.

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.

Baltimore became one of those communities on November 1, when the Mayor and City Council of Baltimore filed a complaint (PDF) in the U.S. District Court of Maryland, seeking to hold a number of chemical companies and safety equipment manufacturers liable for the contamination of the city’s drinking water.

Defendants named in the lawsuit include 3M Company, E.I. Du Pont De Nemours and Co., Corteva, Inc., Chemguard, Inc., Tyco Fire Products, Raytheon Technologies, BASF Corp. and several others.

“Defendants designed, manufactured, marketed, promoted, distributed, supplied, and/or sold PFAS-based aqueous film-forming foam (AFFF) products, and certain chemical ingredients incorporated into those products, that were used and released in and near Baltimore and which now contribute to a serious environmental and public health crisis,” the lawsuit states. “Defendants knew that these dangerous chemicals would be released into the environment during the ordinary and intended use of their AFFF products, causing harm to the City, its residents, and those within the service area of the City’s municipal water systems, among others.”

The lawsuit claims the defendants failed to instruct users of AFFFs of the need to take proper precautions to limit exposure and failed to provide adequate instructions about the potential risks. The city also accuses the manufacturers of not using less toxic compounds to make firefighting foam they knew would enter water supplies and impact the environment.

Baltimore is seeking compensatory, consequential and punitive damages to pay for past, current and future costs of the presence of PFAS in drinking water supplies, stormwater and wastewater systems, and for damage done to properties and resources under the city’s management.

PFAS Health Concerns from Firefighting Foam

PFAS were first introduced into the manufacturing industry in the 1940’s, because of their ability to resist heat, grease, stains, and water. However, since then the chemicals have been linked to a myriad of adverse health effects including liver damage, thyroid disease, decreased fertility, high cholesterol, obesity, hormone suppression, and cancer.

It is projected to take thousands of years for PFAS chemicals to degrade, and past studies have shown their ability to enter and stay in the environment and human body through the air, dust, food, soil, and water. Previous U.S. Centers for Disease Control and Prevention studies have shown PFAS chemicals primarily settle into the blood, kidney and liver, and could likely be detected in the blood of 98% of the U.S. population.

The chemical substances are used to manufacture a number of products, including some food packaging materials, pizza boxes, popcorn bags, fabrics, nonstick cooking pans, and other products.  However, it is perhaps most known for its use in firefighting foams used by military and civilian firefighters.

November 2022 Firefighting Foam Water Contamination Lawsuit Update

Given common questions of fact and law presented in the claims, all 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 AFFF lawsuit 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.