AG sues makers of PFAS ‘forever chemicals’ that have seeped into drinking water

Companies involved in making and selling firefighting foam used for decades in Washington hid potential health risks linked to chemicals in the product, contributing to drinking water pollution around the state, according to allegations in a lawsuit Attorney General Bob Ferguson filed this week.

The case centers on per- and polyfluoroalkyl substances, or PFAS, often referred to as “forever chemicals” because of how they resist breaking down in the environment. They’ve been used for decades, dating back to the 1940s, in manufacturing industrial and commercial products, including goods like cookware, carpets and raincoats. But they were also an ingredient in what’s known as aqueous film-forming foam, a fire suppressant common at sites like military bases, airports and refineries.

Over the years, PFAS have become widespread in the environment – found everywhere from Arctic ice to the blood of most Americans to water systems here in Washington state. Growing evidence suggests the chemicals may lead to health problems, including kidney and testicular cancer, pre-eclampsia in pregnant women, and decreased vaccine response in children. But scientists are still learning how these effects can vary with different types of PFAS chemicals and levels of exposure.

In the meantime, there’s been a wave of litigation and attempts at new regulation.

Ferguson’s lawsuit, filed in King County Superior Court, says PFAS from the firefighting foam left drinking water “profoundly contaminated” in places like Yakima County, the Lower Issaquah Valley, Lakewood and Whidbey Island. Outside of fire response, water with the foam in it could be released onto the ground, where it could seep into groundwater, during events like training exercises or spills.

The suit alleges that 20 companies – including large corporations like 3M, BASF Corp., and DuPont de Nemours, Inc. – “knew or should have known” that the PFAS in the firefighting foam could hurt human health and the environment. And it says their actions violated a number of state laws.

Washington has already spent millions of dollars dealing with water tainted by the chemicals, and these costs are expected to climb as testing reveals even more contamination. So far, nearly 200 water sources have tested positive for PFAS, according to state Department of Health data that the Attorney General’s Office pointed to. The lawsuit asks the court to force the companies to pay for past and future expenses stemming from the pollution, for things like water treatment, remediation and monitoring.

Ferguson’s office highlighted internal company memos and reports dating back to the 1980s and 1990s that it says indicate firms such as DuPont and 3M were aware of PFAS health concerns.

“These corporations knew for decades about the serious risks these forever chemicals pose to human health and our environment,” Ferguson said in a statement. “Their corporate greed caused significant damage, and they need to be held accountable.”

Dan Turner, a DuPont spokesman, highlighted in an emailed statement extensive restructuring the company underwent in recent years and emphasized that “DuPont de Nemours has never manufactured PFOA, PFOS or firefighting foam.” The statement added: “While we don’t comment on litigation matters, we believe this complaint is without merit, and we look forward to vigorously defending our record of safety, health and environmental stewardship.”

The state’s lawsuit does contend that DuPont de Nemours, even in its latest iteration, assumed certain PFAS-related liabilities from the past.

A spokesperson for 3M responded with a statement that said the company had “acted responsibly in connection with products containing PFAS,” including the firefighting foam in question, and that it would “vigorously defend its record of environmental stewardship.”

BASF Corp. didn’t respond to a request for comment.

Ferguson is far from alone in going after companies like 3M and DuPont on PFAS claims.

Reporting by Bloomberg Law last year turned up at least 6,400 PFAS-related lawsuits filed in federal courts between July 2005 and March 2022. Hundreds of cases are now part of “multidistrict litigation” before a South Carolina U.S. District Court.

A lawsuit that Lakewood’s water district filed in 2020 is one of the cases. The district sued the U.S. government and a number of companies seeking damages for PFAS contamination in groundwater supply wells it says came from firefighting foam sprayed at nearby Joint Base Lewis-McChord. It said in a 2020 court filing that the wells served about 115,000 municipal water customers, and that it anticipated over $377 million in future costs to remove the chemicals from its groundwater.

Even on Tuesday, Ferguson wasn’t the only state attorney general moving on the issue. Maryland Attorney General Anthony Brown lodged a pair of lawsuits against companies over their alleged role in PFAS contamination, including one focused on the same type of firefighting foam.

There have already been significant payouts from PFAS manufacturers in other cases. In 2017, DuPont and Chemours agreed to pay $671 million to settle about 3,500 personal injury claims from around a plant near Parkersburg, West Virginia. In 2018, the state of Minnesota settled a lawsuit that involved PFAS water contamination allegations against 3M for $850 million.

The exact risks of PFAS chemicals are not fully understood.

Research suggests exposure to high levels may lead to “adverse health outcomes,” according to the U.S. Environmental Protection Agency. But, EPA adds, research is ongoing to determine the health effects different levels of exposure from various chemicals that fall into the group can have and to understand the consequences of low-level exposure over longer durations.

EPA in March proposed the first-ever national drinking water standard for six types of PFAS and has said it expects to finalize the regulation by the end of this year.

According to the Attorney General’s Office, groundwater testing near a military training center in the Yakima region, one of the areas noted in the new lawsuit, has found PFAS contamination that is more than 1,300 times the new threshold EPA has put forward.