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  • Writer's pictureThe San Juan Daily Star

Three ‘forever chemicals’ makers settle public water lawsuits

Last year the E.P.A. determined that almost no level of exposure to PFAS chemicals was safe.

By Ben Casselman, Ivan Penn and Matthew Goldstein

Three major chemical companies said late last week that they would pay more than $1 billion to settle the first in a wave of claims that they and other companies contaminated drinking water across the country with so-called forever chemicals that have been linked to cancer and other illnesses.

The companies — Chemours, DuPont and Corteva — said they had reached an agreement in principle to set up a $1.19 billion fund to help remove toxic perfluoroalkyl and polyfluoroalkyl substances, or PFAS, from public drinking water systems. PFAS have been linked to liver damage, weakened immune systems and several forms of cancer, among other harms, and are referred to as forever chemicals because they linger in the human body and the environment.

Bloomberg News also reported Friday that 3M had reached a tentative deal worth “at least $10 billion” with U.S. cities and towns to resolve related PFAS claims. Sean Lynch, a spokesperson for 3M, declined to comment on the report, which cited people familiar with the deal without identifying them.

Hundreds of communities nationwide have sued Chemours, 3M and other companies, claiming that their products — which are used in firefighting foams, nonstick coatings and a wide variety of other products — contaminated their soil and water. They have sought billions of dollars in damages to deal with the health impacts and the cost of cleaning up and monitoring polluted sites.

A trial set to begin next week in federal court in South Carolina was seen as a test case for those lawsuits. In that case, the city of Stuart, Florida, sued 3M and several other companies, claiming that firefighting foam containing PFAS — used for decades in training exercises by the city’s fire department — had contaminated the local water supply.

The announced settlement is “an incredibly important next step in what has been decades of work to try to make sure that the costs of this massive PFAS ‘forever chemical’ contamination are not borne by the victims but are borne by the companies who caused the problem,” said Rob Bilott, an environmental lawyer advising plaintiffs in the cases.

Environmental groups were cautious, however. Erik D. Olson, a lawyer with the Natural Resources Defense Council, said the settlement, combined with money recently appropriated by Congress to help with contamination, would “take a bite out of the problem.” But, he added, “it’s not going to fully solve it.”

The preliminary settlement with Chemours, DuPont and Corteva, all of which declined to comment beyond the announcement, may not be the end of the costs for those companies, either. The deal, which requires approval by a judge, would resolve lawsuits involving water systems that already had detectable levels of PFAS contamination, as well as those required to monitor for contamination by the Environmental Protection Agency.

But it excludes some other water systems, and it would not resolve lawsuits resulting from claims of environmental damage or personal injury from individuals sickened by the chemicals. And state attorneys general have filed new suits, some as recently as this week, over the matter.

The liability of 3M could be even greater. In an online presentation in March, CreditSights, a financial research company, estimated that PFAS litigation could ultimately cost 3M more than $140 billion, though it said a lower figure was more likely. The company has said that by the end of 2025 it plans to exit all PFAS manufacturing and will work to end the use of PFAS in its products.

Shares of 3M rose sharply on Friday after the Bloomberg report, as did shares of Chemours, DuPont and Corteva.

The synthetic chemicals are so ubiquitous that nearly all Americans, including newborns, carry PFAS in their bloodstream. As many as 200 million Americans are exposed to PFAS in their tap water, according to a peer-reviewed 2020 study.

PFAS cleanup efforts took on more urgency last year when the EPA determined that levels of the chemicals “much lower than previously understood” could cause harm and that almost no level of exposure was safe. It advised that drinking water contain no more than 0.004 parts per trillion of perfluorooctanoic acid and 0.02 parts per trillion of perfluorooctanesulfonic acid.

Previously, the agency had advised that drinking water contain no more than 70 parts per trillion of the chemicals. The EPA said the government would for the first time require near-zero levels of the substances.

Some industry groups criticized the proposed regulation and said the Biden administration had created an impossible standard that would cost manufacturers and municipal water agencies billions of dollars. Industries would have to stop discharging the chemicals into waterways, and water utilities would have to test for the PFAS chemicals and remove them. Communities with limited resources will be hardest hit by the new rule, they warned.

The EPA estimated that compliance would cost water utilities $772 million annually. But many public utilities say they expect the costs to be much higher.

PFAS-related litigation involves more than 4,000 cases, filed in federal courts nationwide but largely consolidated before a federal judge in Charleston, South Carolina, as so-called multidistrict litigation because the lawsuits involve a common set of facts and allegations. It is not uncommon for so-called mass tort cases to be grouped together like this in federal court, making it easier to conduct discovery and take depositions when so many plaintiffs and defendants are involved.

Elizabeth Burch, a professor at the University of Georgia who studies mass tort litigation, said, “Without the settlement documents being made public, it’s hard to say for certain which claims are covered by the purported deal.”

The list of cases against the companies continues to grow. Maryland filed two suits this week against 3M, DuPont and others. Days earlier, a similar one filed by Rhode Island’s attorney general accused the companies of violating “state environmental and consumer protection laws.”

“I think this is the tip of the iceberg,” said Wenonah Hauter, executive director of Food and Water Watch, a nonprofit organization in Washington that works on issues related to clean water, food and climate. “This issue affects people all across the country in so many communities.”

Hauter said she wanted to see more stringent regulations from the EPA.

“We need real strong enforceable regulations on the entire class of PFAS chemicals,” she said. “I’m not sure that this settlement is as large a deterrent as necessary. So much harm has been done in northern Michigan. People’s lives have been severely impacted. Setting up a fund is a modest step.”

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