County hears presentation on PFAS/AFFF litigation and contingency counsel offer

Jason Julius, a shareholder with the firm Baron & Budd, told the Winnebago County Board on Jan. 1 that the county could pursue cost-recovery claims for PFAS contamination tied to aqueous film-forming foam (AFFF) used at airports and other sites.

Julius said the litigation is currently centralized in a multidistrict litigation (MDL) in South Carolina and noted a prior settlement in drinking-water claims that totaled about $12–12.5 billion. He recommended that the county retain counsel to join the MDL for property- and soil-related claims, saying the firm would front investigation and testing costs on contingency and “there are no costs, no out of pocket expenses for Winnebago County unless there is a recovery.”

Why it matters: County officials pressed counsel on immediate risks, potential cleanup liabilities, and how much investigative work the county would need to do. If sampling shows PFAS in soil, the county could face substantial remediation needs; if there is no contamination, Julius said the county would not owe the firm’s fronted expenses.

Julius summarized the litigation landscape and the firm’s role. He said PFAS compounds—found in firefighting foam, some consumer goods and industrial uses—do not readily degrade and have been tied to contamination of soil, groundwater, wastewater and stormwater. He described property-damage and airport-focused claims as distinct from the drinking-water claims that were previously resolved. The MDL, Julius said, has already generated extensive defendant-side discovery that can shorten the path for new plaintiffs.

Supervisors asked how much the county might recover and what it could owe if remediation costs exceed settlements. Julius said recoveries for public entities in related actions have ranged from low six figures to figures in the high hundreds of millions, depending on the site and damages; he cautioned that investigation work “is a six-figure price tag” and cleanup at an airport can exceed seven figures. Julius also confirmed the proposed contingency cap: attorneys’ fees and any shared class or “common benefit” fees would be capped at 25% of gross recovery and that that percentage is intended to include local co-counsel.

Board questions focused on practical concerns: whether the county would be responsible for lab or counsel costs if testing showed no PFAS (Julius said the firm would front those costs and would not seek them from the county absent recovery); whether Winnebago County could be chosen as a bellwether (counsel said selection is unlikely and that plaintiffs typically complete only a short plaintiff fact sheet unless chosen); and what sites beyond the airport should be examined. Counsel identified potential sites including Whitman Airport (historically Part 139), closed landfills, wastewater facilities and a paper-mill sludge site.

Several supervisors pointed to local infrastructure and watershed risks, noting leachate from closed landfills that flows to Lake Winnebago and neighborhood areas around the airport. Counsel described a phased investigation that begins with interviews and records review, targeted sampling at suspected release points, and development of a damages model to estimate remediation costs.

The board did not take a formal vote to retain counsel at the Jan. 1 meeting. Julius provided a next step: the firm would provide a legal-services contract for the county’s review if the board chooses to proceed. The chair closed the PFAS portion of the agenda after questions and thanked the presenters.

Ending: The board moved on to a data-presentation item; no formal retention of counsel was approved during the session.