By Kate Ready

The Jackson Hole Airport Board is suing a number of companies, including 3M, DuPont and Chemours, for selling a fire-quelling foam that contains harmful contaminants known to pollute groundwater and soil.

Other airports also have joined the suit targeting chemicals that airports were required to use by the Federal Aviation Administration, with early test cases possibly headed to trial in January.

“The suit does not name the FAA as a defendant because so far as we know, the FAA, like the airports it regulates, was not aware of the problems with PFAS,” said Mike Morgan, attorney for the airport. “One of the principal claims in the lawsuit is that the manufacturers and distributors knew of the problems but failed to warn consumers.”

The harmful environmental effects are especially striking for the Jackson Hole Airport, which sits in a national park.

The airport joined the litigation in September 2021, alleging the companies failed to warn customers of the harmful side effects of their products, which contain chemicals known as PFAS.

The number of similar cases has jumped to 1,200, up from 500 about a year ago. Three of those, deemed bellwether cases, are closer to trial.

The lawsuit, as well as many other personal injury and product liability lawsuits, is being handled through multi-district litigation, or MDL, a system to combine complex lawsuits for pretrial proceedings.

The judge picks a number of cases to go to trial, and the outcome then sets a precedent that applies to the other cases.

The three bellwether cases chosen to move forward are complaints from water providers in South Dakota, Florida and Massachusetts.

In the 1,200 cases joined in the litigation, known as MDL 2873, the claims cover property damage asserted by water providers, property damage asserted by property owners, bodily injury and medical monitoring for potential future injury.

“The first bellwether trial is set for January 2023,” Morgan said. “But selecting which of the cases will actually go to trial won’t happen until September 2022.”

Judge Richard Gergel in the U.S. District Court for the District of South Carolina will hear the bellwether water case.

“Judge Gergel has experience with MDLs,” having presided over other product liability cases, Morgan said. “But I expect this will take several years to resolve.”

Pending cases that will hinge on the findings of the bellwether cases involve airports, county governments, firefighters and other plaintiffs affected by products with PFAS.

In addition to Jackson Hole Airport, five other airports have joined the litigation, including the Martha’s Vineyard Airport Commission and Sioux Falls Airport.

The Jackson airport’s complaint includes seven charges — defective design, failure to warn, negligence, trespass, nuisance, unjust enrichment and fraudulent transfer. The lawsuit focuses on a firefighting foam called aqueous film-forming foam, or AFFF, that the airport used in its operations for many years.

AFFF was mandated by the Federal Aviation Administration for its ability to rapidly suppress fires caused by jet fuel, according to the Jackson Hole Airport Board. But it contains harmful contaminants called fluorosurfactants, which are in a chemical family known as per- and polyfluoroalkyl substances, or PFAS.

The PFAS found in the foam included two substances: perfluorooctanoic acid, or PFOA, and perfluorooctane sulfonic acid, PFOS.

PFOA and PFOS are manmade chemicals, sometimes called “forever chemicals,” that resist degradation by normal means like sunlight, water or even human or animal metabolism due to the strength of the chemical bonds between fluorine and carbon.

The chemicals tend to “stay, spread and accumulate throughout the environment, often ending up in groundwater and soil,” according to court documents.

The suit claims the defendants — 24 businesses and 49 John Does involved in the creation or distribution of polluting fluorochemical products — knew about the serious environmental and human health risks as early as the 1970s and 1980s but took no steps to remove the chemicals from their products or warn users about the risks.

According to court documents the airport board has suffered “significant” losses in assessing, investigating, testing and mitigating damage caused by the chemicals. It expects the investigation and cleanup to continue for years.

One of the defendants, 3M Company, is identified in the lawsuit as the primary manufacturer of PFAS chemicals in the United States from the 1940s to the early 2000s.

3M is a Delaware corporation, but its principal place of business is in St. Paul, Minnesota.

Twenty-three other corporate defendants are listed including Raytheon, Tyco Fire Products, Chemguard, AGC Chemicals America and DuPont.

The lawsuit claims these other companies designed, marketed, distributed or sold fluorosurfactant products that contained the harmful chemicals while knowing of their dangers.

Forty-nine unidentified entities are also listed as defendants, under the name John Doe. These are persons believed to be manufacturers, distributors, sellers, or successors in interest of people and businesses that have caused or contributed to the fluorochemical products that have polluted and continue to pollute the airport.

Each of the defendants has responded to the lawsuit with general denials of the allegations.

Processes to produce PFAS commercially were first developed in the 1940s. In the 1950s, 3M launched several products based on PFAS, including Scotchguard.

PFOA and PFOS are water soluble, which allows these chemicals to spread easily through soil, groundwater and water runoff.

They also “bioaccumulate,” meaning that the chemicals accumulate over time in living organisms. Thus, humans can be exposed from the water they consume or from other living animals like fish that have concentrated the PFOA and PFOS in their tissue. In humans the chemicals accumulate primarily in the bloodstream, kidneys and liver.

According to the 2017 book “Chemical Contaminants and Residues in Food,” PFOA has been shown to cause developmental and reproductive toxic effects in mice and rats.

The Environmental Protection Agency said serious harm to health can include developmental effects on fetuses and breast-fed infants, cancer, liver damage, immune system damage, thyroid damage and other adverse effects.

The lawsuit claims that 3M conducted studies during the 1970s that showed the ability of perfluorochemicals to persist in the environment, resist biological degradation and accumulate in the human body.

In 1980 3M published data in peer-reviewed literature showing that humans retain PFOS in their bodies for years, and a 1984 internal memo showed 3M’s medical officer acknowledging the increasing levels of PFOS in blood samples from 3M’s workers over a 12- to 18-month period.

According to the board, AFFF foam can be made without the harmful PFOA or PFOS. Fluorine-free foams, for example, do not release or degrade into PFOA or PFOS but no replacement product has proven as effective within the FAA’s safety time frame.

Due to pressure from the EPA, 3M began phasing out its production of products containing PFOS and PFOA in 2000. According to its website, 3M no longer manufactures or sells AFFF.

In 2006 3M settled with the EPA for $1.5 million for citations that included failing to disclose studies about perfluorochemicals.

The court documents cite a 2005 class action settlement with DuPont over water contamination in West Virginia that sparked a panel of researchers, the “C8 Science Panel,” to begin researching the effects of PFOS and PFOA on the environment and public health. That litigation inspired the 2019 film “Dark Waters,” starring Mark Ruffalo.

DuPont also is listed as a defendant in this case.

“The panel found a probable link between PFOA exposure and kidney cancer, testicular cancer, ulcerative colitis, thyroid disease, pregnancy-induced hypertension and high cholesterol,” according to court documents.

In 2005 the EPA announced the “largest administrative penalty in agency history” against DuPont for failing to report the “substantial risk information” about PFOA to the agency.

Since 2016 several states have set safe drinking water limits below the EPA’s lifetime health advisory level of 70 parts per trillion in drinking water.

In May 2021 the Agency for Toxic Substances and Disease Registry set minimal risk levels significantly lower than the EPA’s advisory — 10 times more stringent for PFOS and seven times more stringent for PFOA.

Megan Jenkins, communications and customer experience manager for the Jackson Hole Airport, said while the AFFF foam is still mandated by the FAA in the event of a crash or other life-safety scenario, its use hasn’t been required in years. In fact, the airport has eliminated the need to discharge the foam for required training exercises by purchasing a no-foam system.

The airport has been working with consultants and experts to investigate, monitor and plan for remediating the contamination on its property at a significant expense.

“In February 2020 a sample of wells on the airport property detected PFAS in five of 13 groundwater wells,” the court filing said. Two wells had levels significantly higher than the EPA’s lifetime health advisory level at 128.5 parts per trillion and 382 parts per trillion.

Starting in June 2020 the airport board began testing private residential wells located adjacent to and downgradient from the airport. One well tested above 70 parts per trillion, and at least 17 other wells showed detectable signs of PFAS.

Because of the potential for such contamination to spread, the board has continued expanding residential water testing. To date, 120 domestic water wells have been tested, according to the filing. Forty-seven water filtration systems have been installed in adjacent residences, and an additional 97 homes have been offered water filtration systems at the board’s expense.

The board also did a soil investigation ahead of the airport runway reconstruction to determine the level of chemicals present to avoid spreading affected soils and ensure the safety of construction workers.

“Twenty-eight soil borings deemed that the areas we were digging up would be fine to reuse that soil,” Jenkins said.

The board is undertaking a groundwater study to determine the most feasible method of removing the chemicals from groundwater, a move the board anticipates will be needed to meet regulatory standards.

Jackson Hole Airport is one of the only airports voluntarily dealing with this issue: “We’re kind of blazing the trail on mitigation,” Jenkins said.

So far the airport has not been reimbursed for its investments in remediation.

“We knew that with our location inside a national park we couldn’t wait for these resources to become available,” Jenkins said. “We had to tackle this head on.”

Because it’s nearly impossible to trace the AFFF chemicals back to a specific manufacturer, each defendant’s liability may be assigned according to the percentage of the AFFF market share it owns, according to the airport lawsuit.

The parties are conducting additional discovery in the proceedings. According to transcripts, the defendants already have produced more than 2.5 million documents and given or scheduled more than 55 depositions.

One of the key issues in discovery has been the government contractor defense, which immunizes government contractors who produce certain products to meet government specifications.

The plaintiffs likely will counter that the defense does not apply for several reasons, including that the defendants failed to disclose information about the risks of PFAS.

PFAS meanwhile have raised health concerns well beyond Teton County.

“This is not just a Jackson problem, this is every airport, every military base,” Jenkins said. “PFAS is found in so many other things like microwave pizza boxes, deodorants, cooking pans, toothpaste … it’s so prevalent that you can find it in every human’s bloodstream. It goes well beyond the use of firefighting foam.”

“The suit does not name the FAA as a defendant because so far as we know, the FAA, like the airports it regulates, was not aware of the problems with PFAS. One of the principal claims in the lawsuit is that the manufacturers and distributors knew of the problems but failed to warn consumers.” — Mike Morgan Attorney for Jackson Hole Airport