Watchdog: Toxic chemicals in water prompt lawsuits, health concerns

Industry has been phasing out use of the chemicals over the past two decades, but the damage is done. In 2013, a survey found traces of them in a third of public water utilities.

While they have no power to act, concern over PFOA and PFOS prompted the U.S. Environmental Protection Agency to issue a health advisory in 2009 with advice on how much contamination is concerned “safe.” A year ago, the agency released a new advisory dramatically lowering the amount considered safe.

That new level — just 70 parts per trillion — is behind a lawsuit filed last month by the public water utility in Centre, Ala., a city about 30 miles west of Rome, Ga., that gets its water from the Coosa River. The lawsuit targets about three dozen manufacturers in and around Dalton and charges them with contaminating the Conasauga River, a major tributary for the Coosa, with the chemicals.

In the suit, Centre alleges “substantial and consequential damage” caused by the pollution, including the costs the city utility expects will come from installing new filters capable of removing the chemicals and ongoing monitoring for them.

"The polluters must bear the expected multi-million dollar cost cleaning up and removing the PFCs from the water system," Rhon Jones, an attorney representing the city utility told The Birmingham News when the suit was filed. "Some of the highest PFC test results in North America, if not the world, have been recorded near the discharge sites for these carpet manufacturers."

The Centre lawsuit is the second action filed by a downstream community in Alabama that targets Georgia's carpet industry. In September, the Gadsden, Ala., water utility filed suit against 32 manufacturers on nearly identical grounds.

In answers filed to the Gadsden suit, lawyers for the carpet companies have offered numerous defenses, including that there is no evidence they were intentionally negligent and that any damage was not foreseeable.

While cities in Alabama have moved to recoup alleged damages from the presence of these toxins, Georgia water utilities have been more accommodating. When the new EPA guidance was released, the city of Rome issued a statement reassuring water customers that their tap water was safe.

“The Georgia Environmental Protection Division (EPD) has confirmed that drinking water leaving the City of Rome’s treatment plant is well below the EPA lifetime health advisory limit of 70 parts per trillion,” the statement read.

But a 2015 water analysis of the city’s water showed the combined levels of PFOS and PFOA were more than twice the EPA’s new advised limits.

The city was able to proclaim its water safe a year later because, right before the EPA publicly released its new advisory, Rome changed its drinking water mix, lowing the amount it takes from the Oostanaula River in favor of Etowah River, which had lower levels of the toxins. The Oostanaula is fed by the Conasauga, which flows from Dalton.

Rome City Commissioner Craig McDaniel, who chairs the Rome Water and Sewer Committee, said the city takes its water quality very seriously and has purchased new filters aimed at the toxins, along with decreasing its reliance on the Oostanaula.

“We want to be progressive and be ahead of the curve and we want to assure the citizens that our drinking water is pure,” he said. But he said cities across north Georgia spent decades in the last century luring manufacturers to locate their plants along their waterways and now we are dealing with the contamination they left behind.

“Communities have the burden of providing clean water, so we do whatever we have to do,” he said.

While the new EPA guidance has meant the city has to reduce its reliance one of its two water sources, McDaniel said there have been no discussions that Rome might file a lawsuit of its own against Dalton’s favored industry.

Big-dollar lawsuits

The state Environmental Protection Division says that other than Rome, Chatsworth is the only other system where high levels of PFOA and PFOS have been detected. Like Rome, Chatsworth changed its water mix to lower the levels. Again these toxins aren’t regulated, so EPD has not required any action on the part of the polluters.

Joe Cook, spokesman for the Coosa River Basin Imitative, an environmental non-profit, said the lawsuits raise an interesting question about property rights and corporate responsibility.

“Should a downstream water user have to foot the bill for fixing a problem that appears to be caused by an upstream neighbor?” he said. “I think the law in many cases has borne that out.”

These are big-dollar lawsuits. In February, chemical companies DuPont and Chemours agreed to pay $670.7 million to plaintiffs to settle 3,550 lawsuits related to PFOA leaks. The lawsuits were generated by pollutants found in the air, water and ground near the companies' Parkersburg, W.V., plant, which produced Teflon for non-stick cookware.

Prior to the mass settlement, DuPont had already been hit with multi-million jury verdicts in individual lawsuits by plaintiffs who alleged exposure to the chemical had given them cancer and other ailments.

‘Government failure to regulate’

Mark Cuker, a partner in the Philadelphia-based firm of Williams Cuker Berezofsky, has litigated a number of PFOA and PFOS claims. He said the new EPA guidelines of 70 parts per trillion likely is not the end of the discussion.

“There is a hell of a lot we don’t know about this,” he said.

While he specializes in lawsuits over industrial toxins, Cuker said the issue of these particular contaminants became very personal when he went to a meeting in his hometown in Pennsylvania to hear about PFOA and PFOS in his own drinking water.

“I literally went there as a citizen. I didn’t represent anybody,” he said. “These were my neighbors and I was one of the least militant in the room.”

Cuker said he had a “whole house” carbon filter installed at his home. “I wouldn’t want to drink that water without a carbon filter,” he said.

Gerald Williams, another partner in the same firm, said the mess left behind by these chemicals is “a classic example of governmental failure to regulate.” Now that most industries have phased them out, it’s almost too late to regulate them on that end, he said.

“The interest in regulating the industries may wane because of that factor,” he said. “But the interest in assessing the toxicity of the chemical, … that is going to change over time because it has to.” The medical risks are too great, he said.

And the cost of that solution is going to fall on public utilities, he said. And, ultimately, those of us who pay the bill.