County Could Sue PFAS Manufacturers

Milwaukee County could soon be suing manufacturers of the group of chemicals commonly referred to as PFAS, to recoup the cost of remediating contamination at Milwaukee Mitchell International Airport.

Groundwater sampling in recent years has shown high levels of PFAS contamination at the airport, due to the use of firefighting foams that contain harmful PFAS chemicals.

In a letter to the Milwaukee County Board of Supervisors, Milwaukee County Corporation Counsel Margaret Daun said a recent study commissioned by the airport shows “there is indeed significant accumulation of PFAS on airport property, noting that “environmental stakeholders are actively working with the WDNR and an outside consultant to develop a remediation plan. Such remediation, the costs for which are not fairly borne by Milwaukee County Alone, is likely to be very expensive.”

The plan, as Daun lays out in the letter, is to join a group of other municipalities bringing similar suits against PFAS manufacturers seeking damages.

“Over the last couple of decades, numerous lawsuits across the country have been successfully brought against manufacturers of PFAS-containing substances,” Daun wrote. “One set of lawsuits alone, involving approximately 3,500 consolidated cases resulted in a settlement in excess of $670 million.”

Daun did not respond to a request for comment on the potential litigation. Her office will soon go before the County Board seeking approval to pursue the litigation.

The chemicals in question are a family of chemicals called Per- and Polyflouralalkyl Substances, or PFAS. They are often called ‘forever chemicals’ because they persist in the environment and the human body for long periods of time. Research suggests the chemicals have a harmful impact on reproductive health and developmental health, can damage the live and cardiovascular systems and cause thyroid disease and cancers. They are found in numerous household products including non-stick cookware, some carpets and clothing among other things.

The PFAS contamination at the airport is well documented at this point. In 2019, it was first discovered when the airport tested a number of stormwater outfalls in order to renew a DNR permit that was set to expire. At that time, the DNR noted that the PFAS levels at the airport were significantly higher than what the agency commonly finds during routine testing. At the time, Harold Mester, a spokesperson for the airport, said “The source of these chemicals appears to be on land developed by other organizations, including the Wisconsin Air National Guard’s 128th Air Refueling Wing, which has its own fire department and is not located on county-owned property, and the former 440th Airlift Wing property, which was turned over to the airport more than a decade ago.”

The 128th Air Refueling Wing of the US Air Force Reserve and the Air National Guard base is located along the western edge of the airport grounds. Military bases where the firefighting foam is used are generally understood to be potential sources of high-levels of PFAS contamination, according to the DNR.

Environmental Work Group, a non-profit research and advocacy group, and chemical industry watchdog, analyzed Department of Defense (DOD) sampling data and found Milwaukee Mitchell to be among a handful of “highly contaminated” DOD sites situated along the Great Lakes, posing a risk to nearby residents and wildlife.

The fire-fighting foams, or aqueous film forming foams, are used, with great success, to suppress fuel fires. They’ve been used by military and civilian fire departments all across the country for decades. In her letter to the county board, Daun said the City of Milwaukee Fire Department has used these fire-fighting foams, which are mandated by the Federal Aviation Administration (FAA) since the 1970’s.

FAA regulations require airports to regularly test firefighting equipment, which involves the discharge of PFAS containing foam. The FAA has not changed its fire-fighting foam regulations, but in October 2021 urged commercial airports to limit use of foams containing PFAS. The 2020 National Defense Authorization Act required the establishment of new DOD standards, or MILSPEC, for the use of PFAS-free foams. Once established, the FAA will adopt the standards as regulations for commercial airports. This move is expected by the end of January, 2023.

The culpability of manufacturers was noted by Daun in her letter: “What has been revealed in recent years, due largely to the work of plaintiff’s counsel in bringing lawsuits, is that the PFAS Manufacturers almost certainly knew of the risks of PFAS long before the risks were revealed to the general public.”

Daun’s office has identified a “consortium of law firms that represent similar municipal clients” taking legal action against the manufacturers. This consortium, Daun explained, includes both the first law firm to ever successfully bring “any kind of PFAS-related suit” as well as firms that were involved in securing the $670 million PFAS-related settlement. The firms work on a contingent fee basis, Daun said, meaning they don’t get paid unless they win.

Daun successfully represented Milwaukee County in a lawsuit against manufacturers and distributors of opioids, resulting in a $71 million settlement for the county. That case also saw the county partner with a number of other municipalities and private law firms throughout the country.