Harrietstown sues chemical companies over SLK contamination

Decades of firefighting spray at local airport contaminated land, town says chemical companies to blame

Adirondack Regional Airport Manager Corey Hurwitch shows off the pump system on the front of a firetruck at the airport in March. Older generations of these fire trucks sprayed the PFAS chemicals which the state is mandating the Harrietstown-owned airport to clean up. These pump tests are mandated by the federal government, but Hurwitch said these new trucks have internal calibration systems that don’t require testing by spraying. (Enterprise photo — Aaron Cerbone)

LAKE CLEAR — The town of Harrietstown is suing a slew of chemical companies — including 3M and DuPont — to recuperate the costs of a chemical superfund cleanup at the town-owned Adirondack Regional Airport in Lake Clear, which the state is requiring the town pay for.

The state Department of Environmental Conservation has found potentially cancer-causing chemicals called PFAS in groundwater at the airport, the result of decades of federally-mandated testings with firefighting foams at the airstrip.

The DEC tries to find “responsible parties” to pay for superfund site cleanups before committing state funds to such a project, and it has identified the town as a responsible party. But the cost of studying and remediating this contamination carries a hefty price tag for the town and its taxpayers. So the town has lawyered up, contracting with Long Island attorney Nick Rigano, and has filed a lawsuit against the multinational corporations that sold them the hazardous chemicals as it prepares to clean up the site under state supervision.

“(The) town has hired renowned professionals to guide it through the process and will work as prudently and quickly as possible with NYSDEC to address the issues,” Town Supervisor Jordanna Mallach wrote in a statement — the only public comment on the matter town council members are being told to give. “To minimize any impact on taxpayers, (the) town has commenced litigation to recover the costs of the cleanup from those responsible for the contamination.”

The lawsuit, obtained by the Enterprise, alleges that a long list of companies that produced and sold PFAS chemicals and firefighting sprays along the supply chain to the airport are responsible for the contamination.

The town is seeking compensation for past and future costs for investigating and remedying this contamination, as well as recovery of lost property value. It is also seeking to require the chemical companies to be held financially responsible for cleaning up the mess.

“We don’t feel we did anything wrong,” Lake Clear Airport Manager Corey Hurwitch said in March. “We were doing what the federal mandate required us to.”

He had described the airport as being “between a rock and a hard place,” needing to follow federal aviation standards on one side, and state environmental standards on the other.

Each of the 20 defendants named in the lawsuit at some time, manufactured, marketed, promoted, distributed or sold PFAFs — or ingredients or precursors to PFAFs — in New York.

The lawsuit alleges that the contamination was “caused and/or created by Defendants’ actions or omissions.”

The lawsuit also alleges that these defendants knew, or should have known, that these chemicals put human health and the environment at risk when they produced and sold them, and that they failed to inform the government or the public of information they had relating to these risks while continuing to sell them.

“Defendants acted with knowledge, intent, fraud and/or malice driven by their own motives to profit from their products with conscious disregard for public health and the environment,” the lawsuit reads.

In 2020, the state classified the local airport as a “Class 2 Inactive Hazardous Waste Site,” which means it poses a “significant threat to public health or the environment” and that action is required.

According to the DEC, “there are no major issues of public concern” since the site is gated and restricted from public access. The state Department of Health has identified low levels of PFAS in on-site private water supplies, but none rising to a serious risk to health.

Mallach said the town has tested the numerous wells at the airport — including the one which supports the CAVU Cafe — multiple times since the state’s initial study, and each time, PFAS have been within the health limits and below the standard of posing a danger to the public.

The DOH says wells around the area show non-detectable levels of PFAS or levels “at concentrations below regulatory criteria.”

The DEC found PFOS levels to be up to 18,000 parts per trillion, or ppt, in groundwater and 990 ppt in surface water. The DEC also found PFOA to be up to 91 ppt in groundwater and 9.3 ppt in surface water. These are levels many times over the 10 ppt limit, with some being hundreds or thousands of times above the limit.

The PFAS have contaminated soil, groundwater, surface water, wildlife and biota and been detected in groundwater and surface water on site, and the lawsuit says it is likely that they have contaminated offsite waters and wildlife. These chemicals do not degrade quickly, so they will remain contaminated for decades without active remediation.

This lawsuit was initially filed in state Supreme Court. It was moved to a federal district court in the state, and then transferred to the South Carolina federal court as a “tag along” case in an ongoing litigation comprising 500 cases related to the use of these chemicals at airports. Each of these lawsuits is a separate case, but they have been consolidated. The judge will rule on each one individually. This will take a while, but the lawsuit also demands a jury trial. Rigano is also a lawyer on several other cases involving PFAS contamination.

What are PFAS?

Now, what are PFAS? PFAS stands for “per-and polyfluoroalkyl substances” — a group of man-made “forever chemicals” which do not exist naturally and were invented in the 1930s by researchers.

“No human had PFAS in their blood prior to the chemicals being invented,” the lawsuit reads. “Studies have shown that approximately 99% of Americans have detectable levels of (PFAS) in their blood … (and) virtually every baby born in America is born with a detectable level of (PFAS) in (their) blood.”

3M began manufacturing these substances in the 1950s and was the primary manufacturer of them in the U.S. until 2002. These substances have now spread throughout the world and have been detected ubiquitously, even in the Arctic.

When these chemicals are released onto soil, the lawsuit says, they migrate downward until they reach groundwater, where they dissolve into the water and can be ingested by humans and animals.

PFAS stick around inside humans and animals and can persist in the environment for decades because they do not degrade easily. These chemicals bind to human tissue and become concentrated in organs. They have a lengthy half-life in humans and can travel through the food chain, meaning they show up in food.

They can also cross the placenta wall from a pregnant person to a fetus and be transferred through breast milk.

These chemicals are considered toxic in low levels and have been linked to diseases including testicular cancer, kidney cancer, thyroid disease, ulcerative colitis and hypertension. The full health risk of exposure to these chemicals is still being studied.

Why are PFAS at SLK?

These chemicals are present at the airport in Lake Clear because they are ingredients in the fire suppressant used at airfields to put out fuel fires. They are used in aqueous film-forming foams (AFFF). Concentrated chemicals are mixed with water to create a liquid foam, which suffocates fire of oxygen, an effective way to extinguish flammable liquid fires.

The Adirondack Regional Airport began using these foams in the 1960s and have stored and deployed them throughout the past six decades in tests. Harrietstown Town Councilman Howard Riley said he cannot recall a fire at the airport where AFFF would have been used.

“We would only discharge them in the event of an emergency,” Hurwitch said.

Obviously, Hurwitch said in March, they don’t want to do harm to the environment, but they are required to use these chemicals. Hurwitch said that the Federal Aviation Administration still requires them to have those chemicals on hand for if they have a fire emergency.

“The challenging part for the FAA is these foams, they’re really good at putting out fires,” Hurwitch said in March. “Though they are harmful to the environment, to drinking water, to the human body … they can’t find an alternative that’s as effective at putting out fires.”

There’s no substitute for them the FAA approves of right now. He said plane safety is the FAA’s first concern, and using less effective foams could be a liability.

Hurwitch said the airport has used strictly water in trainings since he became the manager, but is required by the FAA to test the proportions of the chemical-water mixture. This is where the PFAS were likely introduced to the land, according to the DEC.

The airport has a new truck with an internal calibration system, so it does not require external discharges to test the mixture any more.

In March, Hurwitch said his biggest issue with the superfund is that there’s no funding for the cleanup, the costs of which falls on the town-owned airport.

“Basically, through no fault of our own — I feel — we have to pay these exorbitant cleanup fees which should be — in my opinion — on the state and the federal level,” Hurwich said back then. “There should be funding for this.”

He felt it was not fair to small airports like his to not provide funding for them. Other airports around the country are going through same remediations, but they have more resources than SLK, he added.

Allegations of cover-up

The two PFAS at issue here are the two most commonly produced and studied of the group — PFOA and PFOS. New York’s maximum allowable level of PFOA and PFOS is 10 ppt, which is right around the minimal risk level set by the Association of State Drinking Water Administrators non-profit organization. These are two of the lowest allowable contaminant levels in the state, which the lawsuit says is evidence of their “extraordinary toxicity.”

The lawsuit alleges that the companies named in the lawsuit covered up the toxicity of PFAS so they could still sell them.

3M began selling these chemicals and its precursors to DuPont in the 1950s.

“3M and DuPont made billions of dollars in profit from their products that contained PFOA, PFOS and/or their precursors, as well as other PFAS,” the lawsuit says.

Meanwhile, the lawsuits alleges, studies from these companies were showing that exposure to these chemicals were resulting in adverse health effects in animal tests, that the chemicals could cause cancer or birth defects and that they were aware that these chemicals had been detected in the blood of the country’s general population.

“By the end of the 1980s, DuPont classified PFOA as a confirmed animal carcinogen and possible human carcinogen,” the lawsuit reads.

In the 1990s, these companies knew the chemicals they were producing were toxic to humans and increased risk of cancer, but denied this publicly, the lawsuit alleges.

“In 1998, 3M, through an executive, told the (Environmental Protection Agency) that 3M has no information suggesting that human health is at risk from exposure,” the lawsuit reads. “From 1940 through at least 1998, the manufacturing defendants did not inform the appropriate governmental authorities, the public or consumers … of the findings.”

In 2000, the EPA began discussing the possible effects these chemicals could have on human health and the environment, and pressured 3M to stop producing them.

The U.S. and 3M issued a joint agreement to phase them out, citing their potential risk to human health and the environment. But later that year, 3M issued a press release asserting that PFOA and PFOS were safe. Eventually, 3M phased out production of these chemicals, but DuPont took up the role of making them.

The lawsuit alleges that to hide the dangers of PFAS, these chemicals were not sold with proper warnings and rules for avoiding contamination.

“The defendants, despite having such knowledge, failed to adequately warn AFFF end-users, including the Town, of the potential hazards to human health and the environment and provide ways to mitigate such hazards,” the lawsuit reads. “Warning labels, manuals and safety information provided with AFFF did not provide notification of the environmental and health perils of which the manufacturing defendants knew, or should have known, existed. … Defendants failed to warn end users, including the town, that unmitigated releases of AFFF were likely to cause environmental harm.”

The lawsuit says these companies could have told the town to excavate soil the suppressants contacted; place down a liner to contain the chemicals when training, storing or washing equipment with them; or recalled the products.

While the lawsuit says using PFAS in AFFF makes them very effective at putting out fires, it adds that “reasonable and safer alternatives were available to produce AFFF, or an effective sister product, without … PFAS, particularly for use in training operations and extinguishment of certain fires.”

History and geography of the property

The airport property was originally donated to the town by Paul Smith’s College in 1940. It was developed into an airfield in 1942 and became a public airport around 1950.

The airport property is surrounded by wetlands, protected waters and several small, unnamed water bodies — but most notably, Lake Clear.

Lake Clear is a “protected stream” to the DEC. It sits approximately 3,650 feet west of the site, but, according to the state, “no direct tributaries to Lake Clear have been identified at the site.”

There are four private water wells and three public water wells within a 1-mile buffer zone of the site.

Fay Brook, a “protected stream,” runs approximately 1,250 feet east of the property, and has tributaries from the contaminated site to its waters. Two branches of Twobridge Brook run approximately 1,500 feet from the property with a drainage ditch connecting the two.

In 2016 and 2017 the state Department of Health found that 12 of 23 water samples it collected from ground water around the airport tested positive for PFAS. But the concentrations of these chemicals did not exceed DEC levels.

Harrietstown is planning an in-depth environmental study at the airport to determine the extent of contamination, with oversight by the DEC and DOH. Then, the town will conduct a feasibility study to research ways to clean up the contamination, and develop a remedial action plan.

“Another possibility is that the information collected during the site investigation may support the conclusion that no action, or no further action, is needed to address site-related contamination,” according to the DEC.

The state DOH has recommended installing a point-of-entry treatment system as a possible solution.

For more information on the SLK superfund site, go to https://on.ny.gov/3QkKaxv and enter the site code 517013.

The state says it wants community participation and communication in this process. To sign up for updates from the DEC, go to https://on.ny.gov/3JwETAP.


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