Maryland’s largest water utility is joining a national trend of suing manufacturers who produce PFAS (“forever chemicals”) used in consumer products. One tricky aspect is that the USEPA has known of these chemicals for years. While the agency has proposed regulating a few forever chemicals this year, they have done so at levels far exceeding other chemicals with known human health effects. Plus, PFAS is still used legally in many consumer products, including makeup, food packaging, rain gear, furniture, and carpets.
Investments
I realized that Anheuser-Busch still made a good beer after sipping on a cold Budweiser on a hot beach. Now at more than $7 below its 52-year low, I called my stockbroker the next day.
“I am going to ride it back up,” I told Mike. “It may take a year, but I believe they are at rock bottom.”
“Hey, if you like that one, then how about 3M?" he asked. "They are 35% down, and their legal issues may be at the bottom now."
“Oh, shit,” I blurted out. My father and I had recently discussed the woes of 3M because one of our family's best friends worked with them for 40 years. His son still holds quite a bit of stock.
“Not me, Mike,” I replied after a pause. “Budweiser will get the boycott behind them, and they still make a good product. I don't think 3M's problems are going away anytime."
Recent PFAS Lawsuit
On August 4, 2023, the Washington Suburban Sanitary Commission (WSSC) filed a lawsuit against more than a dozen companies, including 3M and DuPont. WSSC alleges the companies knowingly polluted the water supply with “forever chemicals.” After all, someone should bear the burden of upgrading systems to remove these toxic substances.
The suit alleges that 3M “worked actively to stifle” PFAS research and that “DuPont continued to actively conceal” evidence of the chemicals’ toxicity.
“Particularly 3M and DuPont have known or, at a minimum, should have known for many decades that ... PFAS compounds are mobile and persistent, bioaccumulative and biomagnifying, volatile, and above all toxic,” the suit said.
3M’s Response
In a statement, 3M said it had “entered into a broad class resolution to support PFAS remediation for public water suppliers.” The agreement, which is subject to court approval, would provide funding for public water suppliers across the country for PFAS treatment technologies “without the need for further litigation,” the company said.
“As the science and technology of PFAS, societal and regulatory expectations, and our expectations of ourselves have evolved, so has how we manage PFAS,” the statement said. “We have and will continue to deliver on our commitments — including remediating PFAS, investing in water treatment, and collaborating with communities.”
Manufacturer’s Commitments
The exact amount of the manufacturer's commitments is the tricky part. “Forever chemicals” are used in a wide range of consumer products at multiple levels in the supply chain and around the globe.
Proportionate liability is a legal principle often applied in cases involving multiple parties who share responsibility for causing harm or loss to another party. Instead of holding all parties equally liable for the entire harm, proportional liability assigns liability based on each party's degree of fault or contribution to the overall harm.
Proportionate liability is considered more equitable and can prevent unjust outcomes where one party bears a disproportionate burden of the liability.
The question often is whether a company can hold out until other producers are identified and their proportional contributions analyzed. The aggrieved parties often slow the process down and play for a settlement. This strategy works in many cases.
Moving Forward
PFAS lawsuits are increasing to the point that it is weakening several great companies that produce legal products. Did they know more about the potential human and environmental impacts that they led us to believe? Maybe. But on the other hand, what did state and federal regulators know? PFAS is not new.
The one new thing is that proposed regulatory levels far exceed anything that could have been imagined a few years ago. And those levels are based primarily on laboratory or animal tests with orders of magnitude for uncertainty applied. Is the juice worth the squeeze? I guess it depends on where you sit.
The article "Md.’s largest water utility sues DuPont, 3M over ‘forever chemicals’" by Justin Wm. Moyer of the Washington Post is a primary source for this article.
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JD Solomon is the author of Communicating Reliability, Risk & Resiliency to Decision Makers: How to Get Your Boss’s Boss to Understand and Facilitating with FINESSE: A Guide to Successful Business Solutions.
