'Toxic Town' features real-life, toxic-tort tragedy in UK

Premiering on February 27, Toxic Town (IMDb), a compelling new miniseries on Netflix fictionalizes a true story of toxic tort in England.

The show couldn't have been timed better for my 1L Torts students' study of public nuisance, which we just completed. The real-life events of Toxic Town are sometimes called "the British 'Erin Brockovich.'" The facts are even more like the case of water contamination in Woburn, Mass., which was the subject of A Civil Action, though Toxic Town makes much of the cadmium in circulating dust as key to opening up the case. 

In the Toxic Town matter, the town of Corby had its water supply poisoned by a defunct steelworks in East Midlands, England, resulting in a cluster of birth defects in the 1980s and 1990s. The courts ultimately ruled in favor of complainants for public nuisance against the local government, which was willfully sloppy in trying to rehabilitate the old steelworks and was not forthcoming with information when challenged. The parties settled confidentially on appeal in 2010. There's more about the true story at Esquire, Time, and BBC.

I don't know enough about British tort law to assess the portrayal of the legal case in Toxic Town. There are some compelling points that suggest the series as a worthwhile study in comparative law. The plaintiff solicitors and barristers refer to a standard of "knowing negligence," which sounds to me closer to recklessness than to negligence in American tort law. The plaintiffs' expert says he must testify with 95% certainty, an extraordinary bar. That requirement causes the plaintiff lawyers to trim their client class. In the court proceedings, a bench trial in the British system, there is testimony that would be excluded for fear of prejudice in an American jury trial. The miniseries also makes much of political tensions within the defendant town council, including a cover-up, implicating the freedom of information. I would welcome an opportunity to study further the similarities and differences here between U.S. and UK law.

The all-star cast of four-episode Toxic Town includes former Doctor Who Jodie Whittaker as the lead "Eric Brockovich" character, based on real-life mother-plaintiff Susan McIntyre. My beloved Robert Carlyle, Trainspotting's "Begbie," plays a town councilor with a conscience. The immediately recognizable Rory Kinnear plays the Civil-Action-Travolta-like plaintiff lawyer, Des Collins. Another favorite actor of mine, Michael Socha—Being Human (UK), and a co-alum with Carlyle of Once Upon a Time—plays the Whittaker character's unreliable love interest.

EPA floats PFAS limits for drinking water

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PFAS has been much on the lips of regulators, lately and at last. 

As I wrote in 2021, the movie Dark Waters (2019), based on a true story, first brought PFAS to my attention. I'm happy to report that we've since replaced almost all of our PFAS-coated cookware. And just yesterday, I followed the recent custom of removing a burrito from its plastic-coated-paper wrapper before heating it in the microwave.

When John Oliver gave his classic treatment to PFAS in 2021, Europe was moving to regulate it, but the United States was doing very little. Per John Oliver's invitation, I confirmed that my local water authority in Rhode Island was not testing for PFAS in drinking water.

Now, with Biden Administration support announced in March, the U.S. Environmental Protection Authority has a PFAS website and proposed regulations for drinking water. The proposal would drop acceptable levels of six PFAS chemicals from 70 to 4 parts per million (ppt).

That's a start, but not a solution. 

PFAS might now be in the drinking water of as many as 200 million Americans, The Guardian reported in March. Research shows human health risk upon any exposure to PFAS, so no safe level is known. The EPA's own guidelines since last year have called for voluntary limits on two PFAS chemicals at 0.02 and 0.004 ppt, a Harvard expert explained. Meanwhile, it's not clear that scientific testing is accurate enough to detect PFAS levels that low. Thus, the EPA proposal is vulnerable to criticism for not reaching the full range of PFAS chemicals and not setting maximum levels low enough. But the challenge truly to ensure human health might be practically insurmountable.

Spurred by burgeoning state regulation meanwhile, the private sector is ramping up capacity to test for PFAS nationwide. In February, Maine Laboratories became the first commercial lab in that state to offer testing. Maine Labs sells test kits for drinking water, waste water, ground water, and soil, with a two-week turnaround for results. Maine Labs's CEO is Katie Richards, a close friend and former college roommate of one of my sisters.

Unregulated, 'Dark Waters' chemicals persist in cookware, clothing, sickening people, environment

Comedian and social critic John Oliver's latest top story on HBO's Last Night concerned PFAS, the artificial chemical substances behind non-stick coatings on cookware and incorporated into food wrappings and textiles, known to be highly dangerous to human health.

The stuff persists, Oliver explained, in new, unregulated, and unlabeled formulations, despite a horrific track record of illness, from obesity to terminal cancer, and environmental damage.  Oliver related recent history by quoting parts of the landmark New York Times Magazine feature by Nathaniel Rich in 2016, "The Lawyer Who Became Dupont's Worst Nightmare."  That piece inspired the unsettling 2019 feature film Dark Waters.  Oliver also excerpted a 2018 documentary, The Devil We Know.

PFAS, a "forever chemical" that persists in the environment for thousands of years, is now in the blood of virtually all Americans.  Food wrappings and clothing are our greatest risk, Oliver explained, and there is no labeling to warn us.

I just caught this on a spot-check. Adiós, sartén.

In my household, since Dark Waters brought the issue to our attention, we've exclusively adopted silicone tools to use with non-stick-coated cookware.  And at the first sign of scratching, out goes the pan or pot: a pricey luxury we are lucky to be able to afford, while we only worsen the environmental problem.  We have lately been investigating non-stick alternatives, and Oliver has ignited the gas burner under us to get moving on that.

PFAS is in the water supply, too, sometimes in alarming doses, 70 parts per trillion (ppt) being the EPA's recommended maximum concentration in drinking water.  Oliver pointed viewers to a "PFAS Contamination" interactive map created by the NGO Environmental Working Group.  The map is intriguing and informative to play around with, as it compiles water quality data from around the country.

But the most frightening takeaway from the map is the data it does not contain.  Data collection is hit or miss.  The closest results to me in East Bay Rhode Island come from a small school serving only 40 persons (4 ppt), a Massachusetts water district serving 13,627 persons (20 ppt), and the Pawtucket (R.I.) water system, serving 99,200 persons and reporting a PFAS excess at 74 ppt.

My local water authority, Bristol County (BCWA), says my water rather comes from Providence, which is not on the EWG data map, and where water quality reports appear to be missing.  It further undermines my confidence in the system that BCWA has been wanting to build a pipeline to Pawtucket, which offers, BCWA says, "another source of excellent quality water."

At last, Europe is moving ahead with regulation; I hope that will spur the United States to follow suit.

[UPDATE, 17 Oct. 2021:  Providence Water sent me a copy of the 2020 Water Quality Report in the mail. As anticipated by Oliver, there is no mention in the report of PFAS.]