3M Still Liable Despite PFAS Market Exit, Attorneys Say

The 3M Co.‘s announcement that it will stop making PFAS won’t relieve it of liability for historic uses that have resulted in global contamination, said attorneys and people living in communities dealing with the chemicals.

3M announced Tuesday it will stop making all per- and polyfluoroalkyl substance (PFAS) by the end of 2025 due to accelerating regulations restricting the chemicals, changing stakeholder expectations, and other reasons.

“This is a monumental move for a large PFAS manufacturer to make an announcement that they plan to stop making PFAS. I hope this will be precedent setting for other PFAS manufacturers in the US and around the world and we see more companies following suit,” said Andrea Amico, co-founder of Testing for Pease. The community group focuses on PFAS concerns that have arisen from the former Pease Air Force Base in Portsmouth, N.H.

But details on how 3M defines PFAS and the company’s continued accountability for past actions are needed, said Amico and others who live in communities where drinking water and land contamination of the chemicals has resulted in higher than average amounts of PFAS in their bodies.

Litigation to Continue

“In terms of 3M litigation I don’t immediately see this step slowing down the litigation against them,” said John Gardella, a shareholder with CMBG3 Law, who chairs the firm’s PFAS, Environmental, Risk Management, and Consulting Practice Group.

“The litigation currently focuses primarily on legacy PFAS with broad environmental pollution issues already at play,” he said.

But, 3M’s move “opens doors for international companies to step in and fill the void to supply PFAS to certain industries in the US,” Gardella said. “I think US companies may steer clear due to their current involvement already to some degree in the PFAS litigation and those companies not wishing to expand their liability risk.”

“In addition, I think as more states begin enacting various PFAS bans and the federal government steps up its regulation of PFAS in various mediums, companies will not wish to pick up the market share available when 3M bows out. I believe the focus will shift to production of PFAS substitutes and time will tell if they carry their own future risks and liability issues.”

“We will be dealing with the environmental and health fallout for many decades,” said Fred Thompson III, an attorney with Motley Rice LLC, which represents plaintiffs in In Re Aqueous Film-Forming Foams Prod. Liab. Litig., a multidistrict litigation case involving thousands of lawsuits against 3M and other companies that have made the chemicals in specialized firefighting foams or the foams themselves.

“It is our responsibility to have the people who knew and profited pay for as much of the mess as we can, before it falls to the taxpayers to suck it up,” he said.

Finding Suppliers, Substitutes

Companies that purchase fluropolymers and types of other chemicals 3M has made could be affected by its decision, said Lawrence E. Culleen, a partner with Arnold & Porter Kaye Scholer LLP who counsels businesses that purchase chemicals to make electronics and other goods.

Trade associations representing the semiconductor, phone, automobile, aerospace and other industries are among those that have often told the EPA as it sought to regulate PFAS that the chemicals, fluoropolymers in particular, were critical to their production.

Typical ways companies deal with such supply concerns include identifying other companies that can make the chemicals or figuring out new ways to make a product without the substances, Culleen said.

“The issue now becomes whether other companies follow suit for the sheer good of humanity and global concerns and develop more sustainable and non-toxic products,” said Loreen Hackett of Hoosick Falls, N.Y., who works with the PFOA Project NY.

Skepticism

Hackett and other people living in affected communities, along with the Environmental Working Group, which has raised concerns about PFAS for 20 years, were skeptical about 3M’s announcement.

“I would not trust this a bit unless I see independent science verify the products made that claim to be PFAS free are truly PFAS free,” said Laurene Allen, a co-founder of Merrimack Citizens for Clean Water, in Merrimack, N.H.

“We will need to watch their actions closely to be sure this announcement is not just smoke and mirrors,” Amico added.

3M made a similar announcement about the two most well-studied types of PFAS, perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS), said Emily Donovan, co-founder of Clean Cape Fear, a North Carolina organization formed to protect residents from the chemicals. Under pressure from the EPA, 3M announced in 2000 that it would voluntarily phase out PFOS and related chemicals.

“Missing from those conversations was a transparent plan for green chemistry replacement solutions,” Donovan said.

After 3M stopped making PFOS, PFOA became a key compound to make fluorochemicals, and then GenX became a substitute for it.

“Today, residents in southeastern North Carolina have two to three times more PFOA in their blood than the national average on top of dealing with extreme exposures to GenX and hundreds of other unregulated PFAS which came from the Fayetteville Works facility for decades,” Donovan said.

PFOA, manufactured by E.I. du Pont de Nemours continued in production although hexafluoropropylene oxide dimer acid (HFPO-DA) and its ammonium salt—commonly referred to as “GenX chemicals” due to the technology used to produce it—is now used to make some PFAS.

E.I. du Pont de Nemours’ chemical business and its fluorochemicals line were spun off into the Chemours Co. in 2015, which has multiple plants including one in Fayetteville, N.C.

“As we saw when 3M exited the market for PFOS decades ago, there will always be another polluter standing by to profit from poisoning their neighbors and workers,” said Scott Faber, the Environmental Working Group’s senior vice president of government affairs. “EPA and the Food and Drug Administration should move swiftly to end needless uses of PFAS, to strictly regulate releases of PFAS, and to demand accountability from companies like 3M.”