Maryland’s Largest Water Utility Files PFAS Lawsuit

Greenbelt, MDOn August 4, Maryland’s largest water utility, the Washington Suburban Sanitary Commission (WSSC), filed a perfluoroalkyl and polyfluoroalkyl (PFAS/PFOA) lawsuit against 3M and DuPont de Nemours among other defendants. Washington Suburban Sanitary Commission v. 3M Company alleges that the PFAS manufacturers made and marketed PFAS-contaminated fire-suppression foams and concealed the toxic nature of the materials from the public.

The lawsuit demonstrates:

• how heavily the burden of clean-up falls on localities;
• how widespread the litigation, like the toxic water contamination itself, has spread throughout the United States; and
• that the assessment of harm and need for remediation may extend long into the future.

The WSSC has joined several other Maryland counties and the State of Maryland in a pair of lawsuits. One focuses on firefighting foam and the other on consumer products, like nonstick cookware, stain resistant fabrics and food packaging. The District of Columbia has filed a similar lawsuit.

Bad chemistry

The WSSC provides water to almost 9.1 million people in Prince George’s and Montgomery Counties in the Washington, D.C. suburbs. The lawsuit looks at the chemistry of PFAS and PFOA chemicals, sometimes dubbed “forever chemicals,” because they do not degrade naturally in the environment. They also bioaccumulate in human beings, fish and livestock.

Even trace doses of several PFAS have been linked to health issues from cancers and increased cholesterol levels to preeclampsia during pregnancy. In addition, these toxic chemicals have been linked to kidney and testicular cancer, increased risk of thyroid disease and liver damage and decreases in antibody responses to vaccines, fertility and birth weight.

Future harm

PFAS and PFOAs have already been found in Maryland groundwater. According to the WSSC news release, the measured amount of PFAS in its drinking water supply is currently low — however, additional water treatment may be required to maintain safe levels
The focus is not on the harm that has already occurred to its customers, but to the future cost of preventing harm. Under the basic principles of negligence law, the WSSC has a duty to mitigate harm to its customers when possible. The utility’s customers, it argues, should not be required to bear the cost of this mitigation. Instead, that legal responsibility should be borne by those who manufactured and marketed a dangerous product.

Negligence

The lawsuit paints a picture of PFAS and PFOAs development and widespread use. Some PFAS have been manufactured since the 1950s. As early as the 1970s, occupational studies found elevated levels of PFAS in the blood of exposed workers. By the 1990s, that was true of the general U.S. population. Environmental studies of PFAS contamination began in earnest in the early 2000s, and since then, PFAS have been widely detected around the world.

The Complaint alleges that 3M and Dupont, among other manufactures, were negligent because they either knew or should have known for several decades that PFAS PFOA contamination was dangerous and widespread. Further, the Complaint argues, both 3M and DuPont continued to actively conceal evidence of the chemicals’ toxicity and to stifle further research.

New EPA regulations

In the spring of 2023, the federal Environmental Protection Agency proposed new national regulations that would provide a limit of 4 parts per trillion (ppt) on what could be considered a “safe” level of PFAS contamination in drinking water. This is currently the lowest level at which PFAS contamination can be reliable measured. The regulations would cover public water utilities, but not private wells, which serve roughly 23 million households national. The EPA intends to finalize these national regulations by the end of 2023. Implementation will likely be months after they are finalized.

Several states, including Alaska, Arizona, California, Colorado, Connecticut, Delaware, Illinois, Iowa, Kentucky, Maine, Massachusetts, Michigan, Minnesota, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Ohio, Rhode Island, Vermont and West Virginia have already passed laws regulating certain PFAS in drinking water.

Local water systems on the front lines

A single firefighting event or training exercise may result in the release of thousands of gallons of foam solution laced with PFAS that then enter and contaminate the environment. As many lawsuits have pointed out, firefighting foam is not the single source of PFAS contamination. Because these chemicals are extraordinarily hard to remove from the environment, bioaccumulate and are linked to health conditions with long latency periods, the full extent of the damage may not be clear for many years.

Local water utilities are on the front lines of the struggle to protect human health from the effects of contamination. WSSC’s lawsuit is only one of many actions to try to move the cost of treatment and remediation to the corporations that continued to manufacture and market these hazardous products, long after it had become clear that they were dangerous.