Birmingham, Ala., suing the same chemical companies as water works for PFAS contamination
al.com March 3, 2023
This story originally appeared in the Lede. For more visit www.birminghamlede.com.
Like the Birmingham Water Works, the city of Birmingham has also sued more than two dozen chemical manufacturers in South Carolina federal court over accusations of contaminating drinking water.
In 2021 the city of Birmingham filed a similar case accusing the same companies of manufacturing products that contain toxic manmade chemicals known as PFAS that they claimed polluted the environment and the drinking water.
The city suit specifically mentions a swath of land near the Birmingham-Shuttlesworth airport.
“A 2019 report by the United States Department of Defense found City owned property at the Birmingham-Shuttlesworth Airport to be highly contaminated with PFOS, PFOA, and other PFAS compounds,” read the city’s complaint. “The Department of Defense lists the Birmingham Airport as having one of the highest levels of PFAS contamination at U.S. Military Installations.”
According to the latest Department of Defense report from one year ago, PFAS cleanup remains underway near the Birmingham Airport.
Both lawsuits were filed by Birmingham-based Environmental Litigation Group, P.C., which did not respond to requests for comment about the cases.
Both lawsuits claim that the defendants are responsible for contamination because of the sale of Aqueous Film-Forming Foam (AFFF) for firefighter use that contained PFAS, as the Lede previously reported. Both the utility and the city also contend that the chemical companies should pay back what the plaintiffs have spent and will continue to spend to remove the PFAS from the environment.
When Birmingham firefighters and Alabama military firefighters in training used AFFF to extinguish fires, it contaminated the soil and the groundwater, according to the lawsuits.
“Because the Defendants knowingly placed defective and dangerously toxic fluorinated AFFF foams into the stream of commerce they are strictly liable to the Plaintiff for causing the release of toxic PFAS compounds onto the City’s municipal lands and its surface and subsurface soil,” reads the city’s 2021 filing.
In a meeting last week, a BWWB board agenda indicated the possibility that the utility would drop its suit, which was filed in November. But the item was instead dropped from the agenda.
That both the city and the water works have sued over the alleged contamination came as a surprise to some officials. One was Jefferson County Commissioner Sheila Tyson, who took particular issue with not being notified of the legal case or water contamination given the fact that Jefferson County’s sewer system shares billing with BWWB and gives the utility part of their sewer collections as a result.
“So, it has to reach enough to kill you before y’all notify anybody?” said Tyson. “If there’s any contamination in our system, the public needs to be notified. So, if you’re not notifying the public, you’re saying that there’s not enough in there to kill you.
“That’s just another perfect example of how they treat the ratepayers and the public. If the board knew, why haven’t they told anybody? That’s ridiculous.”
Rick Journey, director of Communications for the city of Birmingham and Birmingham City Council Public Information Officer Kim Garner said that they were unaware of the BWWB suit’s existence or possible contamination of the city’s drinking water.
Some water works officials now contend that current water treatments have eliminated the threat from the contamination.
“We apply a variety of water treatment technologies that are fully effective in removing a wide spectrum of contaminants and achieving every single ADEM and U.S. EPA regulation applicable to drinking water,” BWWB spokesman Rick Jackson wrote in a previous email to the Lede. “To date, we have detected no PFAS chemicals in any of our four plants’ finished water above the U.S. EPA’s or ADEM’s reporting levels.”
“BWW is committed to delivering the highest quality potable water to our customers. We are constantly evaluating new and innovative advancements to ensure the highest quality while also maintaining focus on affordability. BWW is closely monitoring U.S. EPA’s evolving guidance on PFAS and all other contaminants of concern and is prepared to take whatever steps are necessary to continue to remain in full compliance with all ADEM and U.S. EPA standards.”
The BWWB suit specifically references testing done in 2020 at the utility’s Shades Mountain Water Filter Plant, and Cahaba Pump Station. The testing “revealed the presence of PFOS as high as 2.3 ppt in Plaintiff’s drinking water supply, exceeding the current EPA health advisory,” at the Shades Mountain Plant, the suit alleges. The suit also alleges that testing at the Cahaba station, “revealed the presence of PFOS as high as 2.6 ppt in adjacent surface water, exceeding the current EPA health advisory.”
Tyson, a frequent critic of the BWWB, seemed unconvinced that there is no danger.
“That’s just like people used to say there ain’t enough lead in the paint to make the children sick,” said Tyson regarding the EPA regulations. “Who are they to determine that? The EPA hasn’t always done right now.”
Jackson, representing the BWWB, and Journey and Garner representing the city, all said they were unable to provide details on where the federal cases stand currently or next steps due to the fact that both cases were still ongoing.
Jackson said that BWWB customers should “not be concerned” about the safety of their drinking water, but BWWB director George Munchus has said that the lawsuit should continue.
The chemical companies being sued in both cases make up a long list:
3M, AGC Chemicals Americas, Inc., Trussville’s Amerex Corporation, Archroma U.S. Inc., Arkema, Inc., Buckeye Fire Equipment Company, Carrier Global Corporation, ChemDesign Products, Inc., Chemguard, Inc., Chemicals, Inc., Chemours Company FC, LLC, Chubb Fire, Ltd., Clariant Corporation, Corteva, Inc., Deepwater Chemicals, Inc., Du Pont de Nemours Inc., Dynax Corporation, Kidde-Fenwal, Inc., Kidde P.L.C., Inc, Nation Ford Chemical Company, National Foam, Inc., Chemours Company, Tyco Fire Products, LP, United Technologies Corporation, UTC Fire & Security Americas Corporation, Inc.
Thus far only two have responded with a comment about the BWWB suit: 3M and Corteva.
“3M acted responsibly in connection with products containing PFAS — including AFFF (aqueous film-forming foam) — and will vigorously defend its record of environmental stewardship,” wrote 3M Communications Manager Grant Thompson in an email to the Lede on Thursday. “AFFF was a critical tool developed to serve an important need for military service members and other responders facing high hazard, potentially life-threatening challenges.”
Corteva Communications Manager Larissa Capriotti said the company does not manufacture or sell products containing PFAS.
The water works lawsuit said that, “Defendants are designers, marketers, developers, manufacturers, distributors, releasers, instructors, promotors and sellers of PFAS-containing AFFF products or underlying PFAS containing chemicals used in AFFF production. The Defendants, at all times relevant to this lawsuit, manufactured, designed, marketed, distributed, released, instructed, promoted and/or otherwise sold (directly or indirectly) PFAS-containing AFFF products to various locations for use in fighting Class B fires such that each Defendant knew or should have known said products would be used by purchasers during the course of training and firefighting activities.”
Specifically, the suit notes that Corteva, based in Wilmington, Del., “is the successor-in-interest to Dupont Chemical Solutions Enterprise.” Corteva, the suit says, “designed, marketed, developed, manufactured, distributed, released, trained users, produced instructional materials, sold, and/or otherwise handled and/or used AFFF containing PFAS that are the subject of this Complaint. Further, defendant designed, marketed, developed, manufactured, distributed, released, trained users, produced instructional materials, promoted, sold and/or otherwise handled and/or used underlying chemicals and/or products added to AFFF which contained PFAS for use in firefighting.”
Birmingham is not the only place facing PFA contamination. As the Lede previously reported PFAS have been identified as a statewide problem by the EPA. Just two weeks ago the agency announced an additional $52.6 million would be dedicated to removing chemical contaminants from Alabama’s water according to a report from AL.com’s Dennis Pillion.
Jackson did not respond to requests for comment on why the public and the city had not been notified or if BWWB was aware of the city’s case.
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