CHARLESTON, S.C. (Legal Newsline) - State attorneys general want to hold up the $12.5 billion settlement 3M has reached with local water districts over chemicals known as PFAS over concerns the agreement doesn't go far enough.
Nineteen state AGs - plus the AGs of Puerto Rico, District of Columbia and Northern Marian Islands - moved to intervene on July 26, about a month after 3M and the water utilities reached the settlement.
The proposed class settlement would pay water companies to treat PFAS, a class of chemicals that persist in groundwater and human tissue for years, leading to the nickname “forever chemicals.” The chemicals are a key component in firefighting foam that fire departments and the military have used for decades, allowing PFAS to leach into surrounding soil.
The federal government is attempting to set a maximum contaminant level for PFAS, even as groups call the move premature. Much of the research regarding their effect on the human body is disputed.
Calling themselves the "sovereigns," the AGs who hope to intervene either have their own lawsuits or are planning them. They say their litigation could be impacted by the settlement.
"First, there are overly broad release and indemnity provisions in the Settlement Agreement that could be interpreted to impact the Sovereigns cases," the motion to intervene said.
"The indemnity provision could be read to require public water systems to indemnify 3M against any damages awarded in any litigation that in any way concerns class member public water systems, rendering the Settlement amount illusory due to the uncapped nature of the indemnity."
The states are also worried their claims will be swept into the settlement under an All Writs Act injunction. They say their cases go much beyond public drinking water and seek to remedy PFAS-contaminated groundwater, surface waters, private wells, landfills and industrial sites, among other locations.
There have been some changes to the settlement as a result of recent negotiations, the AGs say, but not enough. In addition to the indemnity clause, the AGs are worried the settlement does not give class members reasonable time to evaluate their claims.
The settlement came after the judge overseeing federal multidistrict litigation in South Carolina earlier this year ordered a halt to proceedings so 3M and plaintiff lawyers could iron out an agreement. In a situation similar to litigation over asbestos and opioids, 3M still faces lawsuits by individuals and others over PFAS, which it manufactured for years and is found in everything from nonstick pans to cosmetics.
Napoli Shkolnik, Motley Rice and Baron & Budd were lead lawyers for the plaintiffs. The settlement likely will produce hundreds of millions of dollars in fees for the firms, which will also participate in more than $2 billion in fees from representing state and municipal governments in opioid litigation.
“There is more work to do, and our team is committed to holding companies like 3M responsible for their contribution to one of the gravest environmental and public health disasters in history,” said Napoli Shkolnik Partner Andrew Croner in a news release announcing the settlement.
DuPont, Chemours and Corteva earlier settled similar claims for $1.2 billion. Other defendants range from firefighting products manufacturer Kidde-Kenwal, which filed for bankruptcy in May over the cost of PFAS lawsuits; National Foam; Tyco Fire Products; BASF; Carrier Global; W.L. Gore Associates; and state and federal governments.
The states opposing the settlement, as currently constructed, are: Arizona, California, Colorado, Connecticut, Hawaii, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Pennsylvania, Rhode Island, Tennessee, Texas, Vermont and Wisconsin.