City of Newburgh Announces A Federal Lawsuit Against The US Air Force, NYS, Airport Operators, & Manufacturers For Contaminating Washington Lake With PFAS

The City of Newburgh, New York (“City”) filed suit late yesterday afternoon in the United States District Court, Southern District of New York, seeking to halt on-going contamination of the City’s water supply by per- and polyfluoralkyl substances (“PFAS”) originating at Stewart Air National Guard Base (“Base”) and Stewart International Airport (“Airport”).

City of Newburgh Mayor Torrance Harvey said, “The City is asking the court to hear and respond to our citizens’ exposure to toxic contaminants. We are standing up for our citizen’s rights to clean and healthy water, and demanding damages so we can provide our citizens rebates for the contaminated water they received.”

The City seeks to require 23 Defendants that have manufactured and sold PFAS, or owned and/or operated the ANG Base and Airport to clean up the PFAS contamination in the City watershed and pay for the City’s continued supply of clean water until the cleanup is completed. The lawsuit alleges that the Defendants’ manufacture, sale and use of aqueous film forming foam (“AFFF”) containing PFAS resulted in widespread contamination of Washington Lake, the City’s primary water supply for more than 27,000 consumers, and the watershed for the City’s drinking water supply reservoirs. PFAS are extremely mobile and persistent in the environment, and may cause human health risks.

The City has been purchasing PFAS free water from the Catskill Aqueduct since May of 2016 with the help of the State of New York (“State”), but this clean water source from the Catskill Aqueduct is scheduled to be shut down for 10 weeks starting in the fall of 2018 by New York City for maintenance. The City plans to provide PFAS free water from Brown’s Pond during the periods that water from the Catskill Aqueduct is unavailable.

The use of AFFF made by the manufacturer Defendants and used by New York State Air National Guard, the United States Air Force, Federal Express, and the Port Authority of New York and New Jersey, among others, on land owned by the State has caused extensive PFAS contamination of soil, water, and fish. The suit charges that the Defendants are liable under federal environmental laws, and state laws for negligence, public nuisance, defective designs, and inadequate warnings.

Information obtained by the City indicates that the owner/operator Defendants have used AFFF at the Base and Airport since at least 1980. The manufacturers have known about the health risks of PFAS since at least the early 1970s and failed to warn users of their risks if not properly handled. The owner/operator Defendants have known about the risks since at least 1987 but have not properly handled the AFFF, resulting in widespread contamination in the City watershed.

The City is asking the United States District Court for the Southern District of New York to find the Defendants liable for the extensive contamination and require the cleanup of the City watershed. The City also wants the Defendants to provide residents with clean water until contamination is abated, assist in the development of a comprehensive watershed management program, reimburse the City for costs that it has incurred from the contamination, and pay the City so it can provide City water users rebates for contaminated water they purchased. Further, the suit asks the court to award the City punitive damages against the manufacturers.

No less than twelve (12) different types of PFAS have been detected in Washington Lake, including perfluorooctanesulfonic acid (“PFOS”), perfluorooctanoic acid (“PFOA”), the most well-known, long-chain PFAS, and ten other short-chain PFAS. PFAS accumulate in blood and other tissues, and will persist indefinitely, threatening the environment and human health. PFOS and PFOA have been detected in Washington Lake and Silver Stream at levels above the May 2016 EPA Health Advisory of 70 parts per trillion for PFOS and PFOA combined. The ten other short-chained PFAS identified in Washington Lake were recently determined to have toxicological and adverse health effects by the Agency for Toxic Substances and Disease Registry (“ATSDR”), the Public Health Service and the U.S. Department of Health and Human Services.

The City has spent more than two years asking owners and operators of the Base and Airport to stop using PFAS and to prevent the ongoing discharge of contaminated water, originating from the Base, from flowing into the streams that feeds Washington Lake. While the United States Air Force, New York Air National Guard, and Port Authority of New York and New Jersey may have stopped using AFFF containing PFOS sometime in 2017 after the State listed two long-chained PFAS, namely PFOS and PFOA, as hazardous substances, they continue to use AFFF containing short-chained PFAS at the Base and Airport. The City has now asked for the Court to intervene.

The New York State Department of Environmental Conservation installed a temporary measure in the form of a granulated activated carbon (“GAC”) filtration system for future treatment of Washington Lake water. But testing performed by the State on Washington Lake water using a similar carbon filtration system revealed that the carbon was less effective for short-chained PFAS. The State has committed to filtering PFAS from Washington Lake water to “non-detect” levels, but documents provided to the City do not yet reflect that commitment. The City is concerned that the operation of the GAC is only designed to treat PFOS and PFOA, and does not include a treatment plan for short-chain PFAS.

The City continues to ask the State to develop treatment standards for PFOS, PFOA, and the short-chain PFAS detected in Washington Lake. As of today, the State has not developed standards for PFAS, and the EPA’s current recommended treatment levels are less protective of human health than the drastically lower standards proposed by the ATSDR. Maine, Michigan, Minnesota, Nevada, New Jersey, North Carolina, and Vermont have each issued standards or guidance levels for PFAS lower than the level recommended by EPA in 2016 of 70 ppt for PFOA and PFOS combined.

The City has been accessing clean water from the Catskill Aqueduct since May 2, 2016 with the help of the State, but that source is about to be shut down. The Catskill Aqueduct, which provides clean water to the City of New York and surrounding Hudson Valley communities, is planned to be shut down for 10 weeks beginning on October 2, 2018. “The City cannot and will not use Washington Lake water during the shutdown of the Catskill Aqueduct because of the ongoing contamination of the drinking watershed, inadequate treatment, and lack of standards,” said City Manager Michael Ciaravino. The City has been forced to use taxpayer dollars to engineer solutions to ensure it has an adequate supply of clean water from its secondary water supply, Brown’s Pond. However, that backup supply will run short if the neighboring Town of New Windsor also utilizes Brown’s Pond during the shutdown period of 10 weeks.

The City is being represented in this lawsuit by Alan J. Knauf, Esq. and Meaghan A. Colligan, Esq. of Knauf Shaw LLP, George Rodenhausen, Esq. of Rodenhausen Chale LLP, and John Walsh, Esq., of Hodges, Walsh, Messemer & Burke LLP.