22 attorneys general move to block 3M PFAS water litigation settlement

A coalition of 22 attorneys general have filed a motion to block the $10.3 billion settlement 3M Co. reached to assist public water suppliers with PFAS mitigation efforts, saying the deal fails to adequately hold the company responsible.

The group of attorneys general represents 19 states, along with the District of Columbia, Puerto Rico and the Commonwealth of the Northern Mariana Islands. In total they said the regions represent 171 million people, or more than half the population of the U.S.

The coalition filed on July 26 an omnibus opposition along with a motion to intervene in the pending multi-district litigation involving water providers with the U.S. District Court for the District of South Carolina, where the cases were consolidated.

3M said when the agreement was reached June 22 that the $10.3 billion it would pay out over the next 13 years would assist public water suppliers with PFAS treatment technologies and support mitigation efforts for eligible PWS who detect PFAS in the future.

The firm added that the agreement, which requires court approval, would resolve current and future drinking water claims by PWS related to PFOA, PFOS and all other PFAS chemicals. This also applies to those included in a portion of the aqueous film-forming foam multi-district litigation based in Charleston.

But the coalition, in its court filing, said the agreement doesn't go far enough and includes provisions it claimed could make the settlement less costly to 3M.

Under the proposed settlement, drinking water providers would withdraw all of the lawsuits they have filed against 3M over its use of per- and polyfluoroalkyl substances, commonly known as PFAS. The "forever chemicals" are used in a wide range of consumer products. In the rubber industry, they are contained in fluoroelastomers and fluoropolymers used in high-end applications for medical, semiconductors, automotive, aerospace, and oil and gas extractions, among others.

But PFAS — an umbrella term that applies to more than 10,000 chemicals overall — are stable in the environment, resistant to degradation, persistent in soil and known to leach into groundwater, according to statements released by the coalition in conjunction with the court filings. The U.S. Geological Survey, they said, recently estimated that at least 45 percent of the nation's tap water is contaminated by one or more toxic PFAS.

Some forms of the chemicals, they said, have been shown to accumulate in the body, and exposure to certain levels is increasingly associated with reproductive and developmental impacts, impaired immune systems and an increased risk of some cancers.

"PFAS forever chemicals are a toxic threat to public health. This proposed settlement does not come close to addressing the massive burden on our public water systems," Connecticut Attorney General William Tong said in a statement. "Connecticut is acting on multiple levels of government to test, remediate and evaluate all possible enforcement avenues to hold accountable those who created and contributed to this contamination."

Other attorneys general made similar allegations in statements they released.

"PFAS can cause serious health impacts—including various forms of cancers, developmental defects, infertility, diabetes and liver damage—and have been frequently detected in water systems nationwide. As a result, the stakes could not be higher," said California Attorney General Rob Bonta. "While I appreciate the effort that went into it, the proposed settlement in its current form does not adequately account for the pernicious damage that 3M has done in so many of our communities. I have both a moral and legal obligation to voice my opposition, and I thank the court for considering our concerns."

3M spokesman Sean Lynch told the Associated Press the agreement "will benefit U.S.-based public water systems nationwide that provide drinking water to a vast majority of Americans" without further litigation.

"It is not unusual for there to be objections regarding significant settlement agreements," Lynch said. "We will continue to work cooperatively to address questions about the terms of the resolution."

Among its concerns with the proposed 3M settlement, the coalition said it would apply to the vast majority of the public water providers in the U.S., including those that have not sued or have even yet to test for the presence of PFAS in their water. But the attorneys general claim that the $10.5 billion to $12.5 billion that 3M pledged to pay to water providers — in return for them waiving their claims — would be worth far less because of provisions that could "ultimately force water providers to reimburse 3M for many costs."

In the brief filed with the U.S. District Court for the District of South Carolina, the California-led coalition alleges that:

• Individual water providers would be bound by the proposed settlement unless they proactively opt out, whether or not they have sued 3M or already tested for PFAS. That would mean the providers would have to make their opt-out decisions without knowing how much they would actually receive and, in many cases, before knowing the extent of contamination in their water supplies and the cost of remediating it.
• The proposed settlement also contains an indemnification clause, which shifts liability from 3M to water suppliers bound by settlement because they decided not to proactively opt out. For example, if a cancer cluster develops in a PFAS-impacted community and the victims sue 3M, the clause likely means 3M could seek compensation from the community's public water supplier for any amount it owed to the victims. That means the proposed settlement is worth less than the $10.5 billion to $12.5 billion that was announced, according to the court brief.

"District of Columbia residents and people across the country will be forced to deal with the adverse effects of 'forever chemicals' for years to come, and their full impact on the environment and our natural resources is still unknown," said Brian Schwalb, attorney general for the District of Columbia. "This settlement agreement contains unacceptable provisions that could force water utility companies and taxpayers, not the companies at fault, to foot the bill for cleanup efforts and would protect 3M and other chemical companies from future lawsuits."

Other states that joined in the filing included Arizona, Colorado, Hawaii, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Pennsylvania, Rhode Island, Tennessee, Texas, Vermont and Wisconsin.

When the proposed settlement was announced in June, 3M said if it wasn't approved by the court, it is prepared to continue in the litigation. "3M also will continue to address other PFAS litigation by defending itself in court or through negotiated resolutions, all as appropriate," the firm said in a statement.

The motion to block the settlement came a day after St. Paul, Minn.-based 3M released its second-quarter financial results, in which it took a pre-tax charge of $10.3 billion payable over 13 years. That, the company added, negatively impacted earnings per share by $14.19. The charge reflects the present value of the expected $12.5 billion nominal value of 3M's payments over 13 years under the agreement.

3M said in late 2022 that it plans to exit the production and sale of all PFAS-containing products by the end of 2025. The firm's Dyneon business produces 180,000 metric tons of fluorine-based polymers per year, including fluoroelastomers, PTFE, fluoroplastics and polymer additives, according to the company website.