Riverhead Town set to hire environmental law firm to sue PFOS/PFOA manufacturers

Riverhead will retain a California-based law firm specializing in environmental litigation to pursue the manufacturers of chemical contaminants that have been found in one of the Riverhead Water District’s wells.

The town board is expected to vote Tuesday to retain the firm Sher Edlin LLP of San Francisco, California to sue the manufacturers of perfluorooctane sulfonate (PFOS), perfluorooctanoic acid (PFOA), and related harmful perfluorinated chemicals (PFCs) for damages related to the contamination of the Riverhead Water District’s drinking water supply.

The firm will take the case on a contingency basis — meaning it only collects a fee if the town recovers a damages award as a result of the lawsuit — according to a legal services agreement the town board will vote to approve at its meeting Tuesday.

There is one well in the water district known to have PFOS/PFOA contamination, Riverhead Water District Superintendent Frank Mancini said in an interview yesterday. The contaminants have been detected in one of the two wells at Plant 5, located on Middle Road east of Northville Turnpike in Riverhead, Mancini said.

The State DEC allows the water district to blend water from the two wells at Plant 5 before the water enters the system, so that the water entering the system from that plant does not exceed the New York State’s newly adopted standard of 10 parts per trillion.

Riverhead’s 2019 annual water quality report, issued in May, lists perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as “unregulated contaminants” detected in samples taken on Feb. 27, 2019 at levels of 8.43 and 15.9 parts per trillion, respectively. The report does not state the location of the well(s) where the contaminants were detected.

PFOS/PFOA are synthetic chemicals used for a variety or purposes in many different industrial processes — and consumer products. PFOA is being phased out, but is still used to make household and commercial products that resist heat and repel stains. PFOS is used in fire-fighting foam. Both are newly listed hazardous substances.

The chemicals are very persistent in the environment and in the human body – meaning they don’t break down and they can accumulate over time, according to the U.S. Environmental Protection Agency. There is evidence that exposure to PFAS can lead to adverse human health effects.

Sher Edlin is the leading law firm in the field, “the best in the country,” said Riverhead Planning Board chairman Stan Carey, who helms the Massapequa Water District and is a member of the State Water Quality Council.

The firm specializes in representing states, cities, public agencies, and businesses in environmental cases “holding polluters accountable for the damage they cause,” according to its website.

The website lists the firm’s current water provider clients, which it says include providers whose water supplies have been contaminated by PFOA and PFOS. Among them are numerous public water providers on Long Island, including the Suffolk County Water Authority and 21 other providers.

Before yesterday’s work session, when it reviewed proposed resolutions for next week’s regular meeting agenda, the board had not discussed hiring a law firm in connection with any PFOA/PFOS contamination issues.

The town board, which also acts as the governing body of the Riverhead Water District, had not publicly discussed the presence of PFOA and/or PFOS in the district’s water supply system prior to yesterday’s work session. The board also has not publicly reviewed or discussed the water district’s most recent annual water quality report.

At the work session, Councilwoman Catherine Kent asked town attorney Robert Kozakiewicz to explain the prospective lawsuit being authorized by the resolution to hire Sher Edlin.

Kozakiewicz said he had not had a chance to speak with the water district superintendent. “But we have a well that’s got evidence of PFOS,” Kozakiewicz said, “and he [Mancini] is asking that we retain this outside counsel.” He did not discuss the location of the reported PFOS/PFOA contamination.

“So we are looking — since we have to do upgrades and address the situation — our hope is that we can not only be successful against the party that caused the PFOS to be found, but also hopefully address some of the costs that we’re going to have to incur as direct damages due to their conduct,” Kozakiewicz said.

“And we’re hoping to get reimbursement, I understand, from the Navy?” Supervisor Yvette Aguiar asked. “Are we going to try to pursue that avenue?”

Kozakiewicz said he had not discussed that with Mancini but thought “the Navy could be a party.” The outside counsel would be investigating the source of the contamination and who the “culpable parties would be,” Kozakiewicz said.

“I’m sure they’ll name, as we learn in law school, anybody and everybody who’s a potential defendant,” he said.

The Plant 5 well in question is located more than six miles east of the northeastern boundary of the former Navy property transferred to the Town of Riverhead in 1998. The Navy is currently investigating PFOS/PFOA groundwater contamination on the site. According to Navy representatives the groundwater flows to the southeast from the area under investigation.

There has not been any PFOS/PFOA detected in the Riverhead Water District wells located on the former Navy site, Mancini said in an interview yesterday after the work session. The town is presently working to subdivide and sell approximately 1,644 acres at the site, under a November 2018 contract of sale with a developer.

Mancini, whose expertise is hydrogeology, said the Navy property is not the source of the PFOS/PFOA contamination at Plant 5, but the aim of the lawsuit is to hold the chemical manufacturers responsible, not an individual user.

The Plant 5 well also has elevated levels of manganese, though the the levels don’t exceed current limits. The water district is planning to add a filtration system at Plant 5 at an estimated cost of $5.1 million. The district in 2018 won a $3 million water quality grant from New York State to defray the cost of the manganese filtration system. That project is still in the design phase, Mancini told RiverheadLOCAL yesterday.

The town attorney explained to the town board yesterday that the Sher Edlin law firm would we working on a contingency fee basis.

According to the retainer agreement on the board’s agenda Tuesday, Sher Edlin will earn a fee equal to 23% or 25% of the monetary damage award recovered by the water district, depending on the timing of the award, and whether by settlement, arbitration award or court order. The firm will also advance any costs of litigation, which will be deducted from any monetary award.