Barnstable sues PFOS manufacturers over well contamination

by Debi Boucher Stetson, originally posted on November 23, 2016


Barnstable’s water contamination issue has grown more complex with the town’s recent filing of a lawsuit against 3M and other manufacturers of fire extinguishing chemical foams.

The federal lawsuit filed on Monday comes on the heels of a state Department of Environmental Protection notice of responsibility regarding Barnstable Municipal Airport as a possible source of well contamination.

Earlier this year, the town filed suit against Barnstable County, alleging that the county’s fire training academy caused the town’s nearby Mary Dunn wells to be contaminated by two contaminants, perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA), chemicals used in fire-suppression foams.

Assistant Town Attorney Charles McLaughlin said Wednesday that the decision to file the federal suit came up rather quickly after a Malden law firm that had represented the town in a class action suit for damages from a gasoline additive contacted the town advising a statute of limitations might apply with the PFOS/PFOA contamination.

“They were aware of the case and they were concerned,” McLaughlin said of the law firm, Rodman, Rodman & Sandman, which filed the suit on the town’s behalf along with Baron & Budd Law Firm, of Dallas, TX.

Named in the suit as defendants are 3M Company, the Ansul Company, Angus Fire, Buckeye Fire Protection Co., Chemguard and National Foam, Inc.

The lawsuit contends the defendants “knew, or reasonably should have known” by the early 1980s that PFOA and PFOS are toxic and mix easily with groundwater, and that they are known carcinogens.

Noting that 3M has “90 percent of the market share” for PFOA and PFOS production, McLaughlin said there have been a number of similar lawsuits against that firm and others. “You’re going to see more of it; it’s going to be a major national story at some point because it is in so many products,” he said.

In addition to fire-fighting products, PFOS and PFOA are used in carpeting, furniture, clothing, packaging and nonstick cookware. They are also used at airfields and in a number of industrial processes, according to EPA documents.

While the town’s suit against the county is for $2 million, the federal lawsuit does not set a dollar amount, he said. As part of the response to the recent DEP order regarding the airport, he noted, the town will be conducting further testing of groundwater. In that process, “I suspect we might find PFOS concentrations that add to our damages,” he said.

The federal lawsuit specifies damages “including, but not limited to” the costs of water testing, monitoring and remediation of the affected wells.

Costs to the town have been mounting since the contamination of one of three Mary Dunn wells was discovered in 2015. The town closed down the well until a carbon filtration treatment system could be installed. Then last spring the federal Environmental Protection Agency (EPA) tightened its advisory levels for PFOS/PFOA in drinking water, saying the chemicals posed a hazard especially for infants and pregnant women.

According to the EPA, exposure to PFOA and PFOS “may result in adverse health effects” including developmental effects to fetuses or to breast-fed infants, cancer, liver damage, cholesterol changes and immune effects.

The new advisory prompted the town to retest all its wells, resulting in the discovery of higher than recommended levels of the chemicals in several more wells. The two remaining Mary Dunn wells were temporarily shut down until treatment systems could be installed, and provided residents with bottled water at a cost of more than $100,000.

Treatment systems cost the town about a half million dollars each, and costs have far exceeded the $2 million cited in the lawsuit against the county. In addition to treatment, monitoring and bottled water, the town has bought and continues to buy water from the town of Yarmouth. Town Manager Mark Ells said the town is discussing a more permanent arrangement with Yarmouth, as initially the water hookup with that town was expected to be short-term.

Town and county officials have been meeting regularly to try to resolve the lawsuit. “We’re still in productive discussions,” McLaughlin said, adding that the town extended the deadline for a formal response from the county to Dec. 23.

Ron Beaty, who was recently elected to the three-member board of county commissioners, issued statements this week asking the town to drop its lawsuit against the county. In a Nov. 21 email to the Barnstable Town Council and Town Attorney Ruth Weil that Beaty also sent to the Barnstable Patriot, he requested the town dismiss or suspend its lawsuit against the county before he is sworn in as a commissioner on Jan. 3. “If I am named as a defendant to any such suit after becoming a County Commissioner in January, then I believe that the matter will be far less likely to be amixably [sic] resolved anytime soon,” he wrote.

On Wednesday Beaty sent another email asking the town to drop the lawsuit in light of its more recent federal lawsuit.

McLaughlin said this week the town will continue to work with the county to resolve the issue, but if talks are not successful, it will pursue the lawsuit.

“We’re working very hard to find common ground,” he said.

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