by Carey Gillam and Shannon Kelleher
DuPont and two related companies said they would pay close to $1.2bn to settle liability claims brought by public water systems serving the vast majority of the US population on Friday, just days before the start of a bellwether trial in South Carolina over PFAS contamination.
PFAS maker 3M was reportedly also considering a settlement that would keep the company from having to face allegations that it was responsible for knowingly contaminating drinking water supplies around the United States.
The trial set to start on Monday is expected to shine a light on long-held secret documents about the chemical giant 3M’s knowledge of the dangers of its per- and polyfluoroalkyl substances (PFAS). 3M has previously announced it will exit PFAS production by 2025.
DuPont and its related companies were recently severed from the case, as they negotiated the settlement in which DuPont will pay roughly $400m ; Chemours, a DuPont spinoff, will pay $592m; and another DuPont-related company, Corteva, will pay about $193m.
The companies said the settlement excludes personal injury claims due to alleged exposure to PFAS, as well as claims by state attorneys general about PFAS contamination of natural resources.
Bloomberg reported on Friday that 3M was negotiating a $10bn payout that would resolve claims and avoid Monday’s trial.
Asked about a potential settlement, 3M said in a statement: “We don’t comment on rumors and speculation.”
3M said earlier in a court filing that it was not liable and that it “never owned, operated, or otherwise controlled the facilities, disposal sites, and other purported sources of PFAS or related compounds”. The company lacked the “necessary controls over its products after the point of sale”, it said in the filing.
The company said in a statement that it was working to stop the use of PFAS across its product portfolio by the end of 2025, even though “PFAS are safely made and used in many modern products”.
4,000 other plaintiffs
The plaintiff in the trial scheduled to start on Monday is the small city of Stuart, Florida, which is suing over the contamination of its drinking water with two types of PFAS called PFOS and PFOA that were used in firefighting foam by local firefighters.
More than 4,000 other plaintiffs are also part of the broader litigation being overseen by the US district court in Charleston, South Carolina. The multi-district litigation (MDL) aims to recover the expenses public and private water utilities are incurring to test, monitor and replace water supplies and to install equipment to try to clear the chemicals from tainted systems.
Stuart, a city of about 17,000 people on Florida’s Atlantic coast, discovered its drinking water wells had been contaminated in 2016 when state regulators informed city officials that some of its well water contained levels of PFOA and PFOS higher than what the Environmental Protection Agency (EPA) considers safe. Ultimately, nearly all of the city’s wells were found to contain some level of PFOA or PFOS.
The city traced the contamination back to “aqueous film-forming foams” (AFFF) the local fire department had used in training exercises for decades, unaware that the work to protect public safety was instead potentially putting it at risk due to the dangerous chemicals in the foam.
The city has since installed an ion exchange filtration system that is designed to reduce the levels of PFOS and PFOA to undetectable levels, said Michael Mortell, Stuart city attorney and interim city manager. The city wants 3M – not the taxpayer – to shoulder the expense. The city is also seeking punitive damages for 3M’s alleged “wrongful conduct”.
The Stuart case, like the thousands of others pending, alleges that 3M knew by the 1970s that PFOA and PFOS could endanger human health and the environment, but decided to hide the knowledge from the public and regulators, and continued to manufacture the chemicals, including for use in the firefighting foam.
Attorneys for Stuart are planning to build their case in part on 3M’s own internal records, many of which were made public after Minnesota officials negotiated an $850m settlement with 3M in 2018 over PFAS water contamination the state alleged caused cancers and other health problems in residents.
“They knew that their chemical … was in the blood of the general population: every man, woman and child,” said McWilliams, one of Stuart city’s lawyers, summarizing a position the city plans to make in court. “They deliberated whether or not to tell the EPA. They ultimately decided not to. And then they sat on it for 22 years.”
Even after the EPA pressured 3M to stop making PFAS chemicals used in firefighting foam in 2002, the company allegedly failed to warn users and the public about harmful foam that remained on the market or to recall the harmful products.
PFAS, sometimes called “forever chemicals” because they do not naturally break down, have been used in an extensive array of consumer and industrial applications due to their resistance to water, oil and heat, and are present in everything from pizza boxes and pesticides to plastics and paints.
The EPA says PFAS residues persist in water, soil, air and food, as well as common materials in homes and workplaces. Scientists have additionally determined that the toxins are now commonly found in the bodies of people and animals worldwide. An estimated 97% of Americans have PFAS in their blood, according to a study by the Centers for Disease Control and Prevention (CDC).
“Next to global warming, this is the biggest environmental catastrophe to ever happen,” said Ned McWilliams, one of the lawyers representing the Florida town in the upcoming trial.
A collection of some of 3M and DuPont’s internal files dating back to the 1960s are expected to be introduced as evidence, according to plaintiffs’ attorneys.
Testimony from retired 3M toxicologist John Butenhoff is also expected to be presented in the trial. In a video deposition taken before the trial, Butenhoff acknowledged that 3M is more than likely the source for PFOS contamination around the globe, including in air, waters, soil, humans, fish, polar bears and “other Arctic mammals”.
“More likely than not the source is 3M,” Butenhoff states in his testimony.
This story is co-published with the New Lede, a journalism project of the Environmental Working Group.