California-led AGs okay ‘forever chemicals’ settlement but say 3M should pay more

California Attorney General Rob Bonta and four of his colleagues submitted an amicus letter late Monday night, citing shortfalls in the company 3M’s multi-billion-dollar proposed settlement with contaminated water utilities.

The attorneys general said that while they are in favor of moving forward with the settlement, 3M should pay more than the $10 billion to $12 billion the firm has offered — in order to fund the massive remediation efforts public utilities will have to undertake to eliminate “forever chemicals” from their supplies.    

“3M has agreed to modify its original proposed settlement in critical ways that will benefit the American people. The states fought hard for those changes,” Bonta said in a statement, referring to revisions made to the proposal over the past few months.

Joining Bonta in submitting amicus letter were the attorneys general of Arizona, the District of Columbia, Pennsylvania and Wisconsin.

3M in a statement said it was pleased with the agreement.

“We are pleased to have worked with the state attorneys general to clarify the public water suppliers (PWS) agreement and they have withdrawn their objections,” 3M spokesperson Carolyn LaViolette said in a statement. “This agreement will benefit U.S.-based public water systems nationwide that provide drinking water to a vast majority of Americans without the need for further litigation by or on behalf of public water systems.”

The attorneys general had filed a similar letter last month relating to a separate, $1.18 billion settlement proposal between the company DuPont — and spinoffs Chemours and Corteva — and the water utilities.

Both the 3M and DuPont settlements involve massive class action litigation with public water suppliers that have already detected the presence of cancer-linked compounds known as PFAS, as well as those that might do so in the future.

Notorious for their ability to persist in both the human body and in the environment, these so-called forever chemicals — or per- and polyfluoroalkyl substances — are found in certain types of firefighting foam and in many household items.

The companies involved in the proposed settlements, which specifically pertain to PFAS-laden firefighting foam, are among the major historic manufacturers of these toxic compounds.

The product, known as aqueous film forming foam (AFFF), has long been used to fight fuel-based fires at military bases, civilian airports and industrial sites.

In July, another Bonta-led group of 22 attorneys general took bipartisan legal action against 3M’s initial proposal — arguing that providers would be bound to the terms unless they actively opted out, all the while lacking information as to how much money they could receive.

At the time, the officials filed a motion to intervene and a document of opposition, also slamming 3M’s phrasing that the proposal “is not an admission of liability.”

In the amicus letter Monday night, the attorneys general credited the company for agreeing to eliminate the indemnification clause that they say “would have unfairly shifted future liability from 3M to water suppliers” that failed to proactively opt out.

They also acknowledged that the revised terms both provide public water providers with a method for estimating the payouts they could receive and grant these agencies 90 days to make that decision, rather than 60.

The attorneys general also agreed with moving forward because the revised proposal now makes clear in several places that claims filed by Bonta in a separate November 2022 lawsuit and other officials would not be impaired.

The modified terms also indicate that any proposed anti-suit injunction would ensure that states are free to submit PFAS-related claims against 3M.

At the same time, however, the amicus letter criticizes what the authors describe as “a very protracted payment schedule that makes water suppliers bear the risk of 3M’s insolvency for over a decade” — referring to 3M’s annual installment schedule from 2024 through 2036.

The total sum, the attorney generals contended, represents only a small percentage of the damages 3M allegedly inflicted upon water suppliers for eight decades.

Meanwhile, with water utilities unable to cover the full costs of drinking water monitoring and treatment, they will need to pass the additional costs on to ratepayers, according to the amicus letter.

“3M declined to pay an amount that accurately reflects the extraordinary damage it has caused to public drinking water systems, and it declined to provide water suppliers the money to remediate that damage more quickly,” Bonta said.

“Our coalition has filed an amicus letter to make sure the court knows about our outstanding concerns,” he added.

This story was updated at 4:31 p.m.