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Calif. Water District joins Forever Chemicals MDL

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A California water district serving thousands of San Francisco Bay area residents has joined multidistrict litigation against 3M, DuPont and other entities that make or market “forever chemicals.” The lawsuits allege injury from decades of plaintiffs’ exposure to products containing these highly toxic chemicals. They allege PFAs have contaminated the bay’s drinking water.

Court records show the Alameda County Water District filed its lawsuit in November 2022. It was transferred to the multidistrict litigation (MDL) in a South Carolina federal court.

The Alameda district serves about 345,000 people in and around Fremont, Newark, and Union City on the East Bay. The complaint alleges that for several decades more than 20 companies produced and sold per- and polyfluoroalkyl substances (PFAS) they knew were toxic. Those PFAS leached into local drinking water and contaminated it.

The district wants the companies to pay for water treatment and other system cleanup. They need to remove or mitigate toxic pollution from perfluorooctanoic acid (PFOA), perfluorooctane sulfonic acid (PFOS), and other chemicals.

The district says it has been proactive in addressing PFAS to meet regulatory standards and that the lawsuit is meant to shift the heavy costs of cleaning up PFAS from “ratepayers to the responsible parties.”

PFAS contaminate Common Products

PFAS contaminate nonstick coatings, water- and stain-proofing compounds, paper and cloth coatings, waxes. They’re also found in aqueous firefighting foam (AFFF). They continue to contaminate the water district’s property, according to the district’s lawsuit.

Used in many household or commonplace products, these materials take forever to break down in the environment, hence their “forever chemicals” label. The EPA notes they can trigger health problems that include:

  • reproductive issues
  • developmental delays
  • increased cancer risk
  • reduced immune function

The lawsuit says the companies’ actions have contaminated the plaintiff’s properties with the chemicals, creating an environmental hazard that needs remediation.

The water district’s lawsuit petition alleges that chemical companies and distributors developed, marketed and sold products containing PFAS “with the knowledge that these toxic compounds would be released into the environment during their intended use, (even) when used as directed and intended.”

Nearly 3,600 Cases filed Today

The water district’s lawsuit joins an MDL established in 2018 to consolidate 75 cases against chemical companies, alleging contamination from AFFF. Court records show that litigation has since expanded to nearly 3,600 cases.

The litigation includes cases filed by more than 200 public water providers and 13 state attorneys general. It also includes thousands of personal injury claims and several hundred others that involve public entity property damage.

U.S. District Judge denies Companies’ attempts to dismiss Florida case

In the Fall of 2022, a U.S. District Judge overseeing the MDL, Richard M. Gergel, rejected an attempt by Corteva and DuPont to dismiss a case against them by the city of Stuart, Florida. Judge Gergel ruled the companies had assumed liability for AFFF when they were spun off years ago from E.I. DuPont de Nemours and Co., known as Old DuPont.

Judge Gergel’s ruling opened the door to make Stuart’s case the first bellwether in the firefighting foam MDL. He also ruled against 3M in September 2022, denying the company’s claim for government contractor immunity. He found that, for decades, 3M knowingly withheld PFAs risks.

The Stuart, Fla. case is set for trial in June. Plaintiffs hope to bring subsequent trials to Sioux Falls, South Dakota, and Ayer, Massachusetts. Plaintiffs’ attorneys have also said that new PFAS cases are being added to the MDL each week, in what is being called  the largest ongoing environmental issue in the country.

The Firefighting Foam MDL

The firefighting foam MDL is just one of several legal fights over PFAS pollution. In December 2021, 3M, Chemours Co. and other entities petitioned the Sixth Circuit to overturn the certification of a class of Ohio plaintiffs with measurable blood concentrations of PFAS.

DuPont Co. and Chemours agreed in 2017 to pay $617 million to resolve a different MDL over the companies’ dumping PFOA into the air and water around an Ohio River plant.

Late in 2022, 3M said it would stop making PFAS by 2025. Meanwhile, the EPA has been working on new regulations. Though we know it’s now decades too late, the agency recently did apparently put out stricter PFAS drinking water “guidance.”

The Defendants Respond

In a statement, DuPont de Nemours said that as a relatively new multi-industry specialty company, it had never manufactured PFOA, PFOS or firefighting foam, and looked forward to “vigorously defending our record of safety, health and environmental stewardship.”

A DuPont de Nemours spokesman said in a statement: “While we don’t comment on pending litigation, we believe these complaints are without merit, and the latest example of DuPont de Nemours being improperly named in litigation.”

3M said AFFF was developed to serve firefighters and military service members facing dangerous challenges and it would “vigorously defend its record of environmental stewardship.”

BASF said in a statement that it’s committed to coordinating with regulators concerning PFAS remediation and the development of appropriate regulations and public communications but “does not believe the allegations have merit and intends to defend these cases vigorously.”

The case is Alameda County Water District v. 3M et al., case number 2:22-cv-04010, in the U.S. District Court for the District of South Carolina.

The MDL is In Re Aqueous Film-Forming Foams Products Liability Litigation, case number 2:18-mn-02873, in the U.S. District Court for the District of South Carolina.


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