Letters

In the 1960s, the U.S. Navy worked with the 3M chemical corporation to develop aqueous film-forming foam (AFFF), a firefighting solution designed to quickly quell liquid fuel blazes. For decades, the foam was extensively used on U.S. military bases and at civilian airports and local fire stations.

AFFF contained synthetic per/polyfluoroalkyl substances (PFAS), also called “forever chemicals” because they don’t degrade naturally. Despite manufacturers’ claims that the PFAS in AFFF weren’t a threat to human health, internal documents going back decades show that they were well aware of the chemicals’ potential risks and withheld the information from federal authorities.

Chronic PFAS exposure has been linked to several cancers and a host of adverse health effects. Problematically, the chemicals’ solid molecular structure makes them highly mobile contaminants that pose a threat to drinking water sources.

The legacy use of AFFF would invariably contribute to the chemicals’ widespread environmental dispersal. In New York State, PFAS have been detected in surface and groundwater samples collected from several locations where the foam is known or suspected to have been used, including in Suffolk County.

A recent study from the U.S. Geologic Survey found that 45 percent of U.S. tap water contained one or more PFAS compounds. In June 2023, 3M proposed settling PFAS contamination claims filed by thousands of public water systems in the AFFF multi-district litigation for $12.5 billion. A month later, a coalition of 23 attorneys general, including New York’s Letitia James, who previously spearheaded efforts addressing forever chemicals in 2019 and 2021, filed a motion to intervene due to several provisions that would’ve unfairly burdened taxpayers.

In August 2023, 3M agreed to the coalitions’ proposed revisions, removing the uncapped indemnity clause, which would’ve allowed the company to avoid responsibility and pass on future liabilities to participating water systems, and extending the deadline for public water utilities to review the settlement and determine whether to accept it or opt out.

Crucially, the revised agreement carves out state and governmental claims, allowing for potential future actions and settlements against 3M.

For public water systems dealing with forever chemical contaminants, including nearly 550 water utilities in the Empire State, removing PFAS requires expensive technological upgrades and retrofitting, whose costs shouldn’t be borne by taxpayers.

To cover the costs of PFAS remediations and upgrades required to ensure water quality to EPA’s proposed standards, public water utilities with confirmed forever chemical detections should know that they still have the option of participating in the ongoing AFFF multi-district litigation and become part of the 3M settlement.

Jonathan Sharp

Chief Financial Officer

Environmental Litigation Group PC

Birmingham, Alabama