New Hanover County has sued several manufacturers, including Tyco Fire Products LP and Chemguard, Inc., over PFAS in firefighting foams. These companies are now seeking to extricate themselves from the legal entanglement. They argue their compliance with federal mandates for military-grade products.
This action emphasizes the broader effects of PFAS-related lawsuits on companies. Further, it stresses the conflict between adhering to regulations and maintaining environmental integrity.
Legal Background
The lawsuit was filed in New Hanover County Superior Court against major chemical and technology companies. It targets manufacturers and sellers of products containing per- and polyfluoroalkyl substances (PFAS). The legal action taken by New Hanover County aims to hold these companies accountable for local environmental contamination. WHQR Public Media reports this includes air, surface water, and groundwater impacts.
This litigation addresses the historical use of PFAS in firefighting foams and other materials that have contributed to environmental pollution. Specifically, the county has highlighted the use of aqueous film-forming foam (AFFF) by local fire departments.
The central concern of the AFFF lawsuit is the widespread PFAS contamination resulting from this use. In response, the county has discontinued the use of firefighting foams containing PFAS as part of its ongoing mitigation efforts.
The legal filings reveal decades of PFAS discharges into the Cape Fear River from facilities like Chemours Fayetteville Works. This facility is identified as a significant point of PFAS pollution approximately 80 miles upstream from Wilmington, per Coastal Review.
The lawsuit also mentions that companies failed to disclose the use of numerous chemicals at the facility. They withheld this information from the Environmental Protection Agency and state agencies.
According to a recent news article published in New Hanover County, the county aims to recover costs related to PFAS contamination. It also seeks compensation for past and future damages caused by these chemicals.
As part of remedial efforts, the Cape Fear Public Utility Authority has launched a project to install GAC filters. This multi-million dollar initiative at the Sweeney Water Treatment Plant aims to reduce water contamination.
Health Risks and Legal Representation
According to TorHoerman Law, the risks associated with PFAS exposure, particularly through products like AFFF, are profound. These include various cancers (kidney, testicular, and others) and other serious health conditions.
If you have suffered from PFAS exposure, you may seek professional legal assistance to explore avenues for compensation. These professionals can provide legal guidance and pursue justice for individuals harmed by these chemicals.
Tyco’s Defense Strategy
A report published in WEC highlights that Tyco Fire Products and its subsidiary, Chemguard, have requested removal from the New Hanover County lawsuit. This appeal is based on their defense that the AFFF they produced was manufactured according to military specifications.
Tyco and Chemguard contend that their foam was essential at locations like Wilmington International Airport, adhering to specific commercial firefighting protocols. This requirement underscores their argument for using specialized firefighting technologies for safety.
The situation potentially qualifies them for the “government contractor defense,” which could provide immunity from certain liabilities.
Moreover, this defense asserts that contractors following government contracts, should not be liable for outcomes mandated by government directives. They argue this is especially true when adherence to these mandates directly leads to disputed outcomes. Tyco cites the federal officer removal statute to shift their case to federal court, ensuring their defense under federal law is considered.
Tyco’s broader strategy involves navigating related lawsuits and settlements across the U.S. For instance, they’ve reached significant settlements intended to resolve claims of water system contaminations due to AFFF. It indicates their proactive stance on addressing PFAS issues on a large scale. These actions suggest Tyco’s approach to mitigate liability through legal defenses and settlements.
Business and Legal Implications
Tyco Fire Products’ legal move to shift PFAS litigation to federal court is a strategic action within environmental and product liability law. Such actions profoundly influence the firefighting foam industry’s regulatory environment. This strategy leverages federal statutes to shift jurisdiction. Further, the approach sets a potential precedent for other manufacturers in similar industries facing environmental lawsuits.
The legal outcomes of such strategies will also have significant financial implications for Tyco and similar companies. Legal defenses, settlements, and fines can affect their financial health, influencing investor confidence and potentially affecting market share and profitability.
Moreover, a shift towards manufacturing non-PFAS firefighting foams might require significant investment in R&D and changes in production lines. Eventually, it will impact financial statements.
There is a reputational dimension to consider. How companies respond to environmental concerns reflects on their corporate social responsibility profiles.
Companies in the firefighting foam industry, including Tyco, may face heightened scrutiny from environmental groups. This increased attention could influence both consumer and B2B relationships. A proactive approach towards more environmentally friendly alternatives could serve as a market differentiator. This way, they can mitigate some reputational risks associated with litigation.
FAQs
Do foams include PFAS chemicals?
Yes, many types of foam, particularly those used in firefighting applications such as AFFF, historically contain PFAS chemicals. These substances are favored for their strong water and oil repellency. Hence, it makes them effective in extinguishing fuel fires. However, due to environmental and health concerns, there is a push towards finding PFAS-free alternatives.
Has AFFF foam been prohibited?
AFFF containing PFAS is not universally banned. However, its use is increasingly regulated due to the environmental and health risks associated with PFAS. Several U.S. states have passed or are considering legislation to limit or phase out the use of PFAS-containing foams. This is particularly relevant for training exercises, where large amounts of foam are often released into the environment.
What alternatives are available for AFFF foam?
Alternatives to AFFF foam are compressed air foam systems (CAFS), water mist systems, and fluorine-free foams. Water mist systems use fine water sprays that absorb heat and reduce the oxygen available to the fire. On the contrary, CAFS combines air, water, and foam concentrate to create a foam that is more effective than water alone.
Tyco Fire Products and Chemguard seek to sidestep the PFAS lawsuit by invoking the “government contractor defense”. Their strategy tests the elasticity of legal boundaries and raises profound ethical questions.
This move could set a concerning precedent, suggesting that compliance with federal specifications shields companies from accountability for environmental damages. It highlights a regulatory gap that may allow environmental harm to persist under the guise of adherence to outdated standards.
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