LAKE CLEAR — Harrietstown has passed up on a settlement with the DuPont chemical company in its lawsuit to recuperate millions of dollars in expenses incurred by the town as it investigates and cleans up PFAS “forever chemicals” at the town-owned Adirondack Regional Airport in Lake Clear.

On Thursday, the Harrietstown Town Council unanimously opted out of a settlement offered by DuPont and its spinoff companies Chemours and Corteva. The companies attempted to settle claims that its toxic chemicals have contaminated drinking water across the country with a $1 billion settlement. There are thousands of lawsuits over these chemicals — including one from Harrietstown, relating to a state-mandated cleanup of the potentially cancer-causing chemicals at SLK.

There were several reasons the town opted out. But the most obvious one was the amount of money Harrietstown would have got from DuPont. If the town accepted the settlement it was entitled to $1,250, according to Long Island attorney Nick Rigano, whom the town is contracting with for this lawsuit and who is a lawyer on several other PFAS cases.

This sum would not begin to recover the millions the town is required by the state to spend on the cleanup, which hasn’t even begun, according to Town Supervisor Jordanna Mallach.

“Oh, goodness. Not even close,” Mallach said.

It was an quick decision for the board, with little discussion and no debate.

“Basically, if we accepted that settlement, it meant that we could not receive any additional settlement,” Mallach said. “That kind of waived our rights to any additional settlements and compensation.”

Mallach said the town is spending $3 million on investigating and monitoring the extent of the contamination. It hasn’t even done any remediation yet. That process is likely to be incredibly expensive as well, according to Mallach. She said she wouldn’t even hazard a guess on what it would cost.

This settlement also didn’t address the issue of soil contamination at the airport, she added.

In 2020, after the state Department of Environmental Conservation found PFAS in groundwater at the airport — the result of decades of federally-mandated testings with firefighting foams at the airstrip — the state classified the 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. The airport is now part of a superfund site and the town is under a consent order with the state to investigate and remediate the contamination. This costs money — lots of money. And the cost is currently to be borne by the town taxpayers.

So the town lawyered up with Rigano, and filed a lawsuit against a long list of multinational corporations along the supply chain that produced and sold them the hazardous chemicals. The goal of this litigation is to recuperate the costs of the cleanup, to require the chemical companies to be held financially responsible for cleaning up the mess.

The lawsuit alleges that chemical companies — primarily 3M — engaged in a coverup of the health and environmental risks PFAS chemicals posed in order to make billions off their sale.

The judge did not directly confirm the allegation of a coverup but cited a lot of evidence supporting such a coverup. Ultimately, U.S. District Judge Richard Gergel said, said this is up to a jury to decide.

Rigano said the jury trial on the public water provider portion of the PFAS cases was supposed to start in June. But on the eve of the trial, at around 5 p.m., he said DuPont’s settlement was announced, delaying the trial. By opting out of this settlement, Harrietstown is staying in the chase of a jury trial.

Chemical company 3M has also reached a $10 billion settlement with some claimants, but it is unclear if Harrietstown is eligible for this one. According to Reuters, these settlements are far less than what the costs of testing and remediation are estimated at.

“For instance, there are over 155,000 public water suppliers in the United States, and the early estimates to clean up PFAS in drinking water nationwide have been pegged to exceed $400 billion, although other estimates suggest that the price could be lower,” reporters Miles Scully and Brian Ledger wrote in an article titled “PFAS settlements: Future of PFAS litigation landscape to be determined by upcoming decision” in August.

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Other attempts to avoid trial

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This lawsuit was initially filed in state Supreme Court. It was transferred to a South Carolina federal court as a “tag along” case in an ongoing litigation comprising of hundreds of 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, but the lawsuit also demands a jury trial.

The chemical companies asked that the court settle in their favor before going to a trial, according to a court opinion obtained by the Enterprise. Basically, the companies said no facts of the case are in dispute and the trial would result in them winning, using what is known as the “government contractor immunity defense.”

Under this defense, U.S. courts allow contractors to be shielded from liability when they create products for the government, since such a lawsuit “can affect uniquely federal interests even though the government is not a party,” causing the contractor to decline to manufacture the item or raise its price.

Since the firefighting PFAS products were initially designed for use on military bases and fires involving military equipment, the companies argued that they are immune from liability.

Judge Gergel denied this motion in September 2022, saying he viewed the facts presented “in a light most favorable to the plaintiffs” — the people suing the chemical companies.

The burden of proof for a summary judgement lay on the defendants who brought it. Gergel said the evidence they brought was not good enough. To qualify for this defense, the companies have to show the government continued to use the produces with full knowledge of its risks. Gergel said he did not find their arguments persuasive when comparing this case to previous similar cases the companies cited.

He said the companies’ request was “inappropriate.”

“The parties will have the opportunity at trial to litigate, and the jury to decide, these hotly contested issues,” he wrote. “These disputed issues of material fact, vigorously contested by the parties, require a full factual presentation at trial and a resolution by a final jury verdict.”

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Alleged coverup

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The town’s lawsuit alleges that these companies 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. It alleges that the companies covered up the toxicity of PFAS so they could still sell them.

Meanwhile, the lawsuits alleges, studies from these companies were showing their dangers for years and that they were aware that these chemicals had been detected in the blood of the country’s general population.

Gergel did not say conclusively speak on this allegation, but had pages of strongly worded details of the historical record. He said the plaintiff’s record “includes numerous instances in which 3M knowingly withheld highly material information about the defects and risks.”

He said concerns about PFAS date back to 1975 when independent toxicologists who found an unidentified organic fluorine compound in blood samples at blood banks contacted 3M to ask if the company knew the source of these chemicals. It was in the blood of the general population.

Gergel cited documents that 3M “plea[ed] ignorance.”

The company had one of its scientists write an internal report stating that the compound found in the blood bank samples closely resembled PFAS, but Gergel said despite 3M having a legal duty to disclose this to the government, it didn’t tell anyone outside the company until “nearly a quarter century” later.

Meanwhile, he points to internal reports from John Butenhoff, 3M’s Manager of Corporate Toxicology, that PFOS is “insidiously toxic.” Gergel said this was never reported to the EPA and was only revealed “during discovery in this litigation.”

“The withholding by 3M of its voluminous internal studies and its privately held conclusion that the product is ‘insidiously toxic,’ are obviously inconsistent with the type of conduct required of a contractor seeking government contractor immunity,” Gergel wrote. “3M argues that even if it withheld material information from the government about defects and risks associated with PFOS, it is still entitled to government contractor immunity because the government had enough knowledge over the years to be aware of potential risks associated with PFOS.”

But 3M could not demonstrate the continued use was with “full knowledge” of its risks, he decided.

Gergel’s court opinion can be read in full at: PFAS court opinion

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What are PFAS?

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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. 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.

Before PFAS were invented, no human had them in their blood. Now, scientific studies show around 99% of Americans have detectable levels of PFAS in their blood. Nearly every baby born in America is born with PFAS in their blood.

These chemicals are considered toxic in low levels and have been linked to diseases including cancers, immune system diseases, liver damage, birth defects, ulcerative colitis and hypertension. The full health risk of exposure to these chemicals is still being studied.

According to the DEC, “there are no major issues of public concern” at the airport 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.

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 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. 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. The airport is required to store and test these chemicals, even though they are known to be dangerous. Lake Clear Airport Manager Corey Hurwitch said that the Federal Aviation Administration still requires them to have those chemicals on hand for if they have a fire emergency.

“We don’t feel we did anything wrong,” Hurwitch said last year. “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.

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.

In 2000, 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.