Governor Andrew M. Cuomo and New York Attorney General Barbara Underwood today announced that the state has filed a lawsuit against six companies that manufactured aqueous film-forming foam containing the chemicals perfluorooctane sulfonic acid/perfluorooctane sulfonate (PFOS) and/or perfluorooctanoic acid/perfluorooctanoate (PFOA). PFOS and PFOA contamination resulting from these firefighting foams has been found at locations across New York, including Stewart Air National Guard Base in Newburgh and Gabreski Air National Guard Base in Southampton. The lawsuit seeks to hold the companies accountable and recover state costs and natural resource damages associated with PFOS/PFOA contamination at several sites and is the latest step in New York's ongoing efforts to tackle emerging contaminants.
"As state experts continue to investigate contamination caused by firefighting foams, New York is working to end the dangerous practices that threaten our natural resources," Governor Cuomo said. "By taking necessary legal action against these companies, we are sending a clear message that we will do everything in our power to protect New Yorkers."
"The conduct of these manufacturers caused widespread contamination of our drinking water and our environment - and jeopardized the health of tens of thousands of New Yorkers," Attorney General Underwood said. "My office will hold these companies accountable for endangering the health of New Yorkers, including forcing them to fully repay the state for cleaning up the toxic mess they created."
Defendants in the suit include 3M Company, Tyco Fire Products LP, Chemguard, Inc., Buckeye Fire Equipment Company, National Foam, Inc., and Kidde-Fenwal, Inc.
The state's suit claims that aqueous film-forming foam manufacturers knew, or should have known, that their products containing PFOA and/or PFOS, when used as intended, would likely injure and/or threaten public health and the environment. The suit claims that these products have caused a public nuisance by threatening public health, contaminating the environment, damaging natural resources, and interfering with the public's use and enjoyment of these resources. The suit also claims that these products were not reasonably safe when used as intended, and that the manufacturers failed to provide warnings about the potential dangers of these products, and failed to provide instructions or other information that could have prevented or minimized these dangers. In addition, the suit claims that the manufacturers must be held responsible for the harms that have resulted and continue to result from the release of their products.
DEC Commissioner Basil Seggos said, “When New York’s precious natural resources are threatened, the responsible parties must be held accountable and the public should be compensated for the damage. New York state continues to take aggressive action in communities dealing with contamination and this lawsuit is another example of the hard line set by Governor Cuomo to ensure our residents and environment are protected.”
Department of Health Commissioner Dr. Howard Zucker said, “Only through our own diligence do we now know that the very products used decades ago to promote public safety, contained chemicals that pose a threat to public health. Today’s legal action further cements Governor Cuomo’s legacy as a national champion for the environment and a fierce protector of public health.”
In January 2016, in the absence of federal regulation, New York became the first state in the nation to regulate PFOA as a hazardous substance, followed by the regulation of PFOS in April 2016. These regulations require the proper storage of these substances and enable the state to use its legal authority and resources of the State Superfund to advance investigations and cleanups of impacted sites. The Final Rule for PFOA and PFOS became effective on March 3, 2017. By finalizing the regulations, the state has solidified its authority to hold polluters accountable - and take action when they refuse -whenever PFOA and PFOS contamination is found.
The State Department of Environmental Conservation and State Department of Health have spent more than $38 million to date to investigate and clean up contamination resulting from the use of aqueous film-forming foam at several locations, and the state continues to expend significant resources in its ongoing efforts to address PFOA and PFOS contamination and provide communities with access to safe drinking water.
Although PFOA and PFOS were phased out of most new products beginning in the 2000s, releases of firefighting foams containing these chemicals are expected to represent a significant source of contamination statewide. Firefighting foams that do not contain these contaminants are widely in use today.
PFOA and PFOS are part of a class of chemicals known as PFAS (per- and poly-fluoroalkyl substances). PFAS are manufactured chemicals that have been used since the 1940s to make commercial and industrial products that resist heat, stains, grease and water, and since the 1960's to make firefighting foam. There are many types of PFAS, with the best-known examples being PFOA and PFOS.
New York State's Ongoing Response to PFOA and PFOS Contamination
Water Quality Rapid Response Team
In February 2016, Governor Cuomo created the New York State Water Quality Rapid Response Team to aggressively investigate emerging threats to drinking water across the state. In June 2016, DEC launched a survey of more than 2,500 potential users of PFOA and PFOS, including select businesses, fire departments, airports, bulk storage facilities and Department of Defense/military bases. The survey was intended to help identify facilities where PFOA/PFOS may currently be, or had formerly been, used, stored, manufactured, disposed of, or released.
Based on survey results, the Water Quality Rapid Response Team mapped facilities where affirmative responses were received to assess public or private water supplies within 0.5 mile of the facility. All facilities near these water supplies were prioritized for immediate sampling. This information has guided the state's focused investigations, working with local health departments and water districts, at specific sites, which are within 0.5 mile of public or private drinking water sources. Identification of a facility on the state's survey does not indicate it is a source of contamination, and the state continues to prioritize additional investigations to evaluate and address any areas impacted by PFOA and PFOS.
In addition, the Clean Water Infrastructure Act of 2017 has directed DEC, in consultation with DOH, to build a comprehensive database, and to evaluate and prioritize more than 1,750 inactive solid waste sites statewide to determine any potential impacts from PFOA and PFOS and/or other contaminants of concern on drinking water sources resulting from any of these sites and to provide recommendations for remediation and mitigation measures for the sites impacting drinking water sources. As a part of this process, the state is conducting drinking water sampling to verify water quality and identify appropriate next steps.
Firefighting Foam Collection Efforts
Through the Environmental Protection Fund, Governor Cuomo has prioritized funding to support the efforts of DEC and the Division of Homeland Security and Emergency Services to launch a collection program for the removal and appropriate disposal of firefighting foam that contains perfluorinated compounds. Through a $600,000 investment, the agencies are working with municipal fire and emergency response departments across the state to dispose of the contaminated foam. As of the end of 2017, more than 20,000 gallons of contaminated foam have been collected and properly disposed; collections are ongoing.
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