Chatham To Join PFAS Litigation

By: Alan Pollock

Topics: Chatham , Wastewater treatment

Tap water

CHATHAM — The discovery of per- and polyfluoroalkyl substances (PFAS) in public wells in levels above state standards has already prompted some hefty spending by the town to ensure continued clean drinking water. To help defray those and expected future costs, the select board voted last week to seek to join a national lawsuit targeting companies that produced those "forever chemical" contaminants.

The select board, which had debated the matter twice before in closed-door sessions, took up public discussion of its legal strategy last week. Town Counsel Patrick Costello said lawsuits have been filed in many different federal courts across the country.

"The defendants in these lawsuits are the manufacturers of the chemicals, and/or products that contain these forever chemicals," he said. The suits seek damages to reimburse cities, towns and water districts for the expenses they have incurred because of disruptions to their water systems, "and for any other potential damages they may have incurred," Costello said.

Two law firms – Napoli Shkolnik, PLLC, and Rodman, Rodman and Sandman, P.C. – contacted the town to offer to represent it in the multi-district litigation, and Costello told the select board that both firms are qualified to do so. But Costello said he was particularly interested in the Sandman firm, which already represents "the two largest water suppliers on the Cape, Barnstable and Falmouth." Shkolnik's other clients include Brockton and Easton, Mass., he noted, but "as we all know all too well, Cape Cod has a very unique hydrogeologic circumstance," Costello said.

Cape towns all draw their drinking water from the same aquifer, meaning that contamination that enters the groundwater is likely to eventually end up in wells. For that reason, Sandman "may have a bit of a foot up on representing Chatham and investigating our particular situation, representing our interests in the litigation," he said.

The law firms are each part of different law groups that include large legal firms from around the nation, Costello told the select board last Tuesday. The two law groups have been involved in other class-action suits involving environmental issues related to the gasoline additive MTBE, as well as opioid painkillers. In the PFAS matter, each law group represents dozens of clients in suits that are being consolidated, "since the claims are, if not virtually identical, very similar," he said. After a period of time for legal discovery, the law groups each establish a test trial ready for the jury.

But most likely, the law groups will be seeking to pursue a financial settlement in lieu of a full trial, town counsel said. The court will allocate the proceeds of any settlement or verdict among the various plaintiffs, based in part on the level of costs they have incurred.

In Chatham, the discovery of PFAS above state standards in two public wells off Training Field Road prompted town officials to take the wells offline, worsening a preexisting shortage of pumping capacity for the system. In a special town meeting in October, voters appropriated $4.5 million to complete construction of two new wells near Mill Pond, along with $1.4 million for initial PFAS treatment at the Training Field wells, and for the design of a permanent treatment plant there. A future town meeting article will seek construction funds for that work, similar to a $9 million treatment facility built in South Chatham several years ago. The town also had to invest funds to reactivate the shuttered Indian Hill well to help meet the demand for water, and it is also paying for a study designed to identify the potential source of the PFAS contamination.

Costello said it is that multi-million dollar investment by Chatham taxpayers that likely drew them to approach the town about joining the suit, "because we do have a very likely chance of recovery in this action, based on the fact that we've already incurred costs."

The time to join any such suit is now, he said. One community's test case is expected to go to trial early next year, Costello noted.

Having previously discussed the matter in executive session, the select board had few comments to make in last week's open session, other than to express support for proceeding with the suit. Board members also unanimously favored signing on with the Rodman, Rodman and Sandman because of its knowledge of the PFAS issues on Cape Cod. That firm represents "a better fit for our situation," board member Cory Metters said.

Board member Dean Nicastro said the town's documented costs related to PFAS make it a good candidate to join the litigation. Regardless of the firm chosen, the town will have no up-front costs to take part, and the legal fees will likely be decided by a judge. In either case, the town's share of any settlement could be substantial, Nicastro hinted.

"The arrangements that have been articulated from both firms would stand the town in good shape from a financial point of view," he said. "I don't want to get into the nature of the agreement because I understand that those are confidential drafts at this point," he said.

Board Chair Peter Cocolis said PFAS pollution is a giant problem around the U.S., and the problem is not going away.

"I think for sure we have to be part of this," he said of the legal action. "If we weren't, I think it would be – I'd go so far as saying – it would be irresponsible."

The board voted unanimously to join the legal action and to authorize the town manager and town counsel to negotiate an agreement for services with Rodman, Rodman and Sandman.

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Twitter: @CCCAlanPollock