Newburgh Residents Seek Court Permission To Sue The City Over PFOS Contamination

Mar 30, 2017

More than two dozen residents are seeking permission to sue the City of Newburgh over PFOS drinking water contamination. Their attorney has filed paperwork in state supreme court in Orange County aiming to pave the way. If the suit is allowed to proceed, it apparently would be the first since the public learned of the contamination last May.

Attorney Tate Kunkle filed a petition to file a late notice of claim against the City of Newburgh. It’s a prerequisite to filing notice of claims and setting a lawsuit in motion.

"Well the claim essentially is that they were improperly exposed to this PFOS contamination and that the City of Newburgh had some culpability,” Kunkle says. “The injuries and damages that they will be seeking are spelled out in the notices of claim but they are essentially medical monitoring, recovery for personal injuries, diminution in value of property,  those are the main facets that people will be looking to recover for.”

Kunkle, based in Napoli Shkolnik’s New York City office, alleges that, as a result of the City of Newburgh’s negligence in the ownership, operation, control and maintenance of the city’s municipal water distribution system, residents named in the petition regularly consumed, bathed in, washed with and cooked with water containing PFOS, and suffered personal injury and expended funds.

“We feel like we need to try to at least help this people because they have been unwittingly exposed to these toxic chemicals through their drinking water,” Kunkle says.

The petition alleges that, due to lack of knowledge, the claimants were unaware of the culpability or involvement of the City of Newburgh until New York state declared Stewart Air National Guard Base a superfund site in August. A state investigation confirms that PFOS came from firefighting foam used at the base. And the state wants the Department of Defense to pay for the cleanup. The public learned in May of PFOS contamination in Silver Stream and Washington Lake, Newburgh’s main drinking water supply. The city now draws water from the Catskill Aqueduct while a new carbon filtration system is in the works, with the state picking up the tab.

PFOS was first detected and reported to the Environmental Protection Agency in 2014 when samples ranged between 140 and 170 parts per trillion. These samples were below the EPA’s then-provisional short-term health advisory of 200 parts per trillion. When sampling in March 2016 confirmed the presence of PFOS, it was about 140 parts per trillion. That was before the EPA issued a new, long-term health advisory in May of 70 parts per trillion. David Cassuto is a professor in the Elizabeth Haub School of Law at Pace University.

“So we have here is we have a great deal of uncertainty about the nature of the threat,  and because of the uncertainty about the nature of the threat, that makes it very difficult to litigate because you don’t know exactly what the harm is,” Cassuto says.

Plus, he says:

“We have a lot of different possible defendants, from the federal government on down,  and that means, that, of course, as a plaintiff’s lawyer make you happy because you have a lot of targets but it also means that it’s hard to show just who it is who is responsible,” says Cassuto.

Kunkle expects additional lawsuits out of Newburgh as more residents continue to contact his firm. And Cassuto believes more PFC-related lawsuits will emerge given the systemic nature of PFOS and PFOA in drinking water. PFCs are of the same family of perflourinated chemicals that include PFOS and PFOA.

“Because the issue is being studied much more carefully, damages will be much more at least capable of being alleged,” says Cassuto.

Kunkle says his firm is involved in other lawsuits involving PFCs elsewhere.

“Our firm, Napoli Shkolnik, is involved Hoosick Falls as well as other PFOS and PFOA cases in Petersburgh, New York, New Hampshire, Bennington,” says Kunkle. “There’s an air force base outside of Philadelphia in Montgomery in Bucks County that we’re involved in as well as one of the largest groundwater contamination cases in Colorado Springs, Colorado.”

A request for comment from the Newburgh mayor’s office was not returned in time for this broadcast. EPA officials have said studies show that exposure to PFOS can result in damage to the thyroid and liver and lead to decreased fertility in women and low birth weight babies, among other health effects.