The Next Wave of Mass Environmental Litigation Bubbles Up From Coastal Florida

Most of the officials present at the meeting at city hall had never heard of the chemicals or knew why they were a problem. Stuart had twice won a state award for having the best-tasting water around. The water manager paced the room in disbelief, according to Mike Mortell, Stuart’s city attorney, who retreated to his office to scour the internet for any information he could find.

Seven years later, the small city of retirees and tourists 40 miles north of Palm Beach is at the forefront of one of the nation’s biggest environmental legal battles, over a class of chemicals known as PFAS. The fight pits hundreds of municipalities and about a dozen states against corporate giant 3M and other companies that made or sold the chemicals or firefighting foam containing them.

Cities from Philadelphia to San Diego allege that for decades companies supplied the foam despite knowing it was toxic and would eventually taint water supplies. The foam was good at putting out fires, the cities say, but created a different risk: People could get sick from drinking the local water.

Stuart’s lawsuit is now one of more than 4,000 against 3M and other companies. Stuart is one of 300 cities seeking to recover the cost of filtering the chemicals out of water. Many other lawsuits allege personal injuries from exposure to the foam.

Stuart, which bills itself as the Sailfish Capital of the World, has been chosen by plaintiff and defense attorneys as the first case to go to trial. Jury selection is set to begin June 5 in federal court in Charleston, S.C., where the cases have been consolidated.

3M and the other companies have said in legal filings that the chemicals haven’t been shown to cause health problems at the levels being discovered in drinking water.

“As the science and technology of PFAS, societal and regulatory expectations, and our expectations of ourselves have evolved, so has how we manage PFAS,” 3M said. “We will continue to fulfill our PFAS remediation commitments and address litigation by defending ourselves in court or through negotiated resolutions, all as appropriate.”

The company said that “PFAS are safely made and used in many modern products” but that it would no longer manufacture the chemicals by the end of 2025 because of increased regulations focused on reducing their presence in the environment.

Leading up to the Stuart trial, 3M has argued in court filings that the city is seeking “wildly inflated damages.”

Presiding Judge Richard Gergel said at a hearing that the case could represent “an existential threat” for the companies if the trial doesn’t go their way. Industry analysts have estimated the potential liability from firefighting-foam cases at more than $15 billion for 3M alone. The company didn’t comment on that estimate.

PFAS are man-made chemicals and were once renowned for their ability to resist heat, water, grease and stains. In recent years, hundreds of the compounds have been used to produce a wide range of goods, from nonstick pans to semiconductors. For years, Stuart’s firefighters used foam containing the chemicals in training exercises at the city’s two fire stations.

The chemicals accumulate in people, and industries from clothing to cosmetics and fast food are eliminating them from their products amid mounting evidence linking PFAS to cancers and other serious health problems. Some states are moving to ban the chemicals entirely.

In March, the Environmental Protection Agency proposed the first-ever federal limits on six PFAS chemicals that are showing up in drinking water. The regulation, if adopted, could require water utilities that collectively serve up to 90 million people to install costly filtering systems, the agency said.

In November, the EPA described PFAS chemicals as “an urgent public health and environmental issue facing communities across the United States.” In many cases, the presence of PFAS in drinking water has been traced to industrial discharges and landfills—and firefighting foam.

As the trial approaches, the sides are presenting vastly different accounts of the chemicals’ risks and who should pay for cleaning them up.

“If you ask the plaintiffs’ counsel, they would say, ‘This is like one of the greatest environmental tragedies in the history of man,’” the judge said during a hearing. “And the defense lawyers said: ‘I’ll drink it by the bottle, and it won’t hurt us.’”

At the edge of a field behind Stuart’s ocean blue and teal firehouse sits a large plastic vat draped in a tarp. A sign reads “Danger Hazardous Chemicals,” a warning about the 150 gallons of foam the city has yet to dispose of.

From about 1990 through early 2016, Stuart firefighters trained nearly once a week with what is called aqueous film-forming foam, which included PFAS in its ingredients. In hundreds of training sessions, crews sprayed the foam on a field, blanketing the ground as they would for a fuel-driven fire or a large fuel spill, said Fire Chief Vincent Felicione.

Afterward, he said, they hosed the foam down to keep it from blowing into yards, and watched as it sank into the ground.

In 2013, the EPA began requiring water systems of a certain size to test for PFAS. Subsequent testing revealed that all 26 of Stuart’s municipal wells had detectable levels of the chemicals. The city took the three wells that had the highest levels offline and notified residents about the situation.

Like hundreds of other cities, Stuart officials said they didn’t initially know how PFAS had gotten into the water. The area, with its Old Florida bungalows and boat slips along the St. Lucie River, had dealt with other water issues before. But those stemmed from agricultural runoff that caused toxic algae to cloud the river and its tributaries.

An environmental consulting firm found the highest levels of the chemicals near the main firehouse and a second firehouse where training with the foam also took place, and concluded they would continue to leach into the drinking water supply for years.

The chemicals were also discovered in private wells at a trailer park near a retirement community called Leisure Village. Florida’s Department of Environmental Protection began hauling in bottled water for residents, mostly immigrants from Honduras, Mexico or Guatemala.

Seeking a longer-term solution, Stuart allocated funds to build a new filtration system at the water treatment plant. It also hired a lawyer to look into getting the chemical companies to foot the bill.

The town, the seat of a heavily Republican county, was hardly a hotbed of environmental activism. It had rarely filed lawsuits, said Mayor Troy McDonald. But in early 2018, the city commission voted to sue 3M and other companies that sold it firefighting foam.

The city is suing for roughly $115 million. That includes $3 million spent to build the filtration system, another $2 million to expand it, plus $80 million to operate the system for the next 40 years and $30 million to clean up contaminated soil.

Chemical companies were already facing litigation. In 2017, DuPont had agreed to pay $670 million to settle 3,600 claims by West Virginia and Ohio residents alleging that cancer and other ills they contracted resulted from one particular PFAS chemical, called PFOA, in their water. The contamination was traced to a nearby plant that made Teflon.

A year later, 3M agreed to pay $850 million to settle a suit by the state of Minnesota alleging that groundwater was polluted by PFAS, dumped in landfills.

The companies didn’t admit wrongdoing in the settlements. But the suits unearthed a trove of internal health studies and communications about the chemicals.

Starting in the 1970s, animal studies by 3M scientists found that a type of PFAS the company had long produced, PFOS, caused effects in mice, rats and rhesus monkeys, from tremors to death, according to company memos. By the late 1970s, 3M officials realized the chemical was toxic and in the blood of the general population, according to an internal company timeline.

In a 1998 memo, a 3M scientist said a safe level for that chemical in human blood was 1.05 parts per billion, which was 1/30th the average level of it found in the general population’s blood supply at the time.

That year, a 3M official referred to PFOS in a memo as “insidiously toxic.”

In 1998, the company submitted its toxicology studies to the EPA and informed the agency that PFOS was in the blood supply of the general population, which prompted the agency to begin investigating.

3M stopped producing PFOS and firefighting foam by the end of 2002. It later reached a $1.5 million settlement with the EPA to resolve 244 allegations of having failed to report information about PFOS and other chemicals to the agency. In court filings, 3M has said it hasn’t withheld information about the potential health effects of PFAS from the government.

Stuart officials learned last September that the legal teams working on the thousands of suits had agreed their case should be first to trial.

As lead trial counsel, the plaintiff team chose Gary Douglas, a rock musician turned New York trial attorney. He had tried the case that led to the $670 million settlement with DuPont, after which he co-wrote a ballad about it called “Deep in the Water.”

“There’s never been a case that’s gone to trial against 3M where the whole story is going to be told, what they knew and when they knew it and how virtually the entire planet is now contaminated,” Douglas said.

3M has its own seasoned trial lawyers: Beth Wilkinson, who represented Supreme Court Justice Brett Kavanaugh during his rocky confirmation, and Brian Stekloff, who serves as national trial counsel for Monsanto in litigation over its weedkiller Roundup.

3M has argued in court that the company should be shielded from some suits over firefighting foam because it was a government contractor supporting the U.S. Navy’s development of the foam, which the company describes as “a critical tool…for military service members and other first responders.” 3M’s attorneys recently said they wouldn’t pursue that line of defense in the Stuart trial but that they still plan to discuss the benefits of the foam.

John Gardella, an attorney who advises companies about compliance with PFAS regulations, said the case is being widely watched because any verdict “will set an initial benchmark by which all other water-utility-related lawsuits on the docket will be judged.”

A thousand miles from a war room set up by plaintiff lawyers in Manhattan, filled with cardboard banker boxes and exhibits, the emerging legal battle over PFAS contamination is only starting to edge into many people’s awareness in Stuart.

Last fall, Stuart alerted residents that the town’s water had registered one of the chemicals in amounts above the EPA’s latest health advisory level for a single day. Town officials said it wasn’t an emergency, but they wanted to inform people.

A few blocks from city hall, a message on a store that sells home water filtration systems reads “Stop Drinking Unregulated Chemicals.” The owner said he has seen a surge in business.

Theresa Kudo brings jugs of bottled water to her sister at an assisted-living facility. She filters her own drinking water, but worries that’s not enough.

“Filtering my drinking water doesn’t help me when I’m taking a shower or a bath,” she said. “We have this big bathtub outside on our back porch. I’m thinking ‘Oh my gosh,’ since your skin absorbs things in water or lotions, it makes me worry about soaking chemicals into my body.”

Doctors recently found a benign nodule on her thyroid, Kudo said, and she can’t help but wonder if PFAS might have had something to do with it. The National Academies of Sciences, Engineering, and Medicine recommended last summer that doctors screen people with high blood levels of PFAS for conditions including thyroid disease, testicular cancer and kidney cancer.

From his office, within sight of a water tower that rises over Stuart and is emblazoned with the city’s name and an American flag, Mortell, the city attorney, said Stuart hadn’t been looking for a fight. Now, he is figuring on a decadeslong slog to rid Stuart’s groundwater of PFAS.

“We all estimate it will take longer than our lifetimes,” he said. “We’ve got a monumental endeavor ahead of us.”

Write to Kris Maher at [email protected] and Dan Frosch at [email protected]