February 25, 2020

Rural water utilities are accusing 3M Co., E.I. du Pont de Nemours and Co. and other companies of potentially contaminating groundwater wells with firefighting foam containing chemicals that take forever to degrade.

The city of Millington, Tenn., joined by the National Rural Water Association, alleged in a complaint Tuesday that the companies developed, marketed, and sold chemicals known as per- and polyfluoroalkyl substances, or PFAS, despite knowing about the environmental and health risks they posed.

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The lawsuit comes less than a week after 3M reached an agreement to pay Wolverine World Wide Inc. $55 million for cleaning up a Michigan site contaminated with PFAS.

3M and DuPont originally developed and produced PFAS in the 1940s. The chemicals have appeared in drinking water across the country, but there’s no law regulating their levels in that water, the lawsuit noted.

EPA Months Away

The Environmental Protection Agency has issued non-binding health advisories for two key PFAS, but is still months away from setting health-based standards for drinking water supplies.

In recent months, public water utilities that have found PFAS in their supplies have lined up in court to get 3M, DuPont, and other companies to take responsibility. Lawsuits are pending from utilities in New York, California, New Jersey, and Alabama.

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The plaintiffs want to compel the companies to conduct a nationwide drinking water well testing program, saying the utilities lack the necessary testing resources. They also want to recover costs that the utilities have already or will incur to investigate, monitor, respond, and remediate any potential contamination of supplies.

“The open question is whether this proposed class action lawsuit will be consolidated with the multidistrict litigation in South Carolina,” John A. Sheehan, a Cohen Milstein Sellers & Toll PLLC attorney who advises potential plaintiffs on PFAS, said.

The difference between the multidistrict litigation and the one filed Tuesday is the alleged evidence of contamination, Sheehan said.

In this instance, Sheehan said, “there appears to be no evidence of actual contamination yet. That is why these small utilities, which serve fewer than 10,000 people, want a court-supervised nationwide testing program to find out if their drinking water wells are contaminated with the use of these chemicals.”

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