PFAS Class Action Settlement Over Water Contamination Opposed by 22 State Attorney Generals

A group of 22 state attorneys general are opposing a $10 billion PFAS class action settlement reached between 3M Company and municipalities nationwide, indicating they do not believe it holds the chemical manufacturer adequately accountable for contaminating water supplies throughout the U.S.

3M Company and other manufacturers of PFAS chemicals, as well as fire safety equipment that contains the toxic substances, face thousands of lawsuits over the toxic side effects of the “forever chemicals”, which have been used for decades in aqueous film-forming foam (AFFF) products and widely contaminated drinking water, especially in communities near airports, military bases and firefighter training locations.

The chemicals are used in AFFF foam during training and response exercises to combat fuel based fires, but have been linked to the development of various types of cancer and other injuries.

Runoff from the AFFF has also caused widespread water contamination in many communities, leaving local cities and water suppliers to deal with the costs associated with cleaning up the chemicals.

While most of the U.S. claims against 3M Company, DuPont, Chemguard, Inc., Tyco Fire Products and other manufacturers involve firefighter cancer lawsuits, brought by individuals who claim they developed testicular cancer, kidney cancer, pancreatic cancer, prostate cancer and other forms of cancer from exposure during their firefighting careers, PFAS water contamination lawsuits have also been filed by a number of cities and municipalities.

Given common questions of fact and law presented in the litigation, all AFFF lawsuits are currently centralized before U.S. District Judge Richard M. Gergel in the District of South Carolina, for coordinated discovery, pretrial proceedings and a series of early bellwether trials.

$10 Billion PFAS Water Contamination Settlement Opposed

Last month, 3M reached a $10 billion settlement agreement, which seeks to resolve the PFAS water contamination class action lawsuits brought on behalf of municipalities and local governments nationwide.

However, a group of 22 state attorneys general announced this week that they oppose the proposed settlement, indicating it does not go far enough in seeking compensation from 3M Company for the damage PFAS contamination has done to the nation’s water supply.

Attorneys general from Arizona, California, Colorado, Connecticut, District of Columbia, Hawaii, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Pennsylvania, Rhode Island, Tennessee, Texas, Vermont, Wisconsin, as well as the Commonwealth of the Northern Mariana Islands and the Commonwealth of Puerto Rico have joined together in opposition to the deal.

A joint motion in opposition (PDF) to the settlement agreement was filed by the AGs on July 26, together with a motion to intervene (PDF) in the litigation to protect their states’ interests. Each state has cities or water suppliers who have joined the class action lawsuit.

The coalition of attorneys general say they oppose the settlement agreement for a number of reasons. They note that the deal calls for all individual water providers to be bound by the proposed settlement regardless of whether they have sued 3M Company or whether they have even tested their drinking water to determine if they have suffered PFAS water contamination.

The officials also warn that water suppliers must make the decision whether to opt out of being included in the settlement without knowing how much money they could potentially receive, and in some cases, without knowing the extent of their contamination or the cost to clean their water supplies. They also warn that the settlement shifts liability in the future from 3M to the water suppliers. This would allow 3M to seek compensation from public water suppliers if it is sued in the future for illnesses linked to PFAS exposure, according to the motion.

“PFAS forever chemicals are a toxic threat to public health,” Connecticut Attorney General William Tong said in a press release. “This proposed settlement does not come close to addressing the massive burden on our public water systems.”

3M Company officials have said they are continuing to work with all the parties involved to reach a satisfactory settlement agreement.

PFAS Water Contamination Risks

PFAS include a group of over 9,000 man-made chemicals, which have been widely used in fire safety equipment and AFFF products in recent decades. While the chemicals are also widely found in products like non-stick pans, pizza boxes and other material, most of the problems linked to the chemicals stems from direct exposure to firefighting foam while combating fuel based fires, or releases into the environment around military bases, airports and other firefighter training locations.

The number of claims is likely to continue to grow for decades, given the nature of PFAS, which earned the name “forever chemicals” due to their persistence in the environment, meaning they will likely continue to be a toxic threat to water supplies and human health for a long time to come, and the defendants could be held liable for much of that as lawsuits continue to be filed for years.

A recent study by the U.S. Geological Survey found that 45% of the nation’s tap water is contaminated with PFAS.

AFFF Firefighter Cancer Lawsuits

In addition to claims brought by local cities and water providers over the damages caused by PFAS chemicals, 3M Company and the other manufacturers continue to face individual lawsuits brought by former firefighters diagnosed with various types of cancer.

In late May, the parties were directed to select 28 personal injury claims for a bellwether pool involving plaintiffs who say they were exposed to AFFF through drinking water contamination, as opposed to direct exposure.

These cases will include eight kidney cancer claims, eight testicular cancer claims, eight thyroid disease claims and four ulcerative colitis claims. In addition, they will be limited to individuals alleging they were exposed to contaminated water near Peterson Air Force Base, Colorado Springs Municipal Airport, the Willow Grove Naval Air Station Joint Reserve Base and the Naval Air Warfare Center in Warminister.

The order calls for the parties to select the cases by July 28, and propose a joint list of selected or proposed cases to the court by August 11.

While the outcome of these bellwether trials will not have any binding impact on thousands of other injury claims pending in the federal court system, they will be closely watched and may have a substantial impact on how much 3M and other defendants have to pay to settle AFFF water contamination lawsuits brought by individuals diagnosed with cancer and other injuries.