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3M to Assess Alabama PFAS Risks in ‘Precedent-Setting’ Deal (2)

July 24, 2020, 7:06 PMUpdated: July 24, 2020, 8:40 PM

3M Co. will determine the health risks of Alabama’s current and potential future PFAS contamination in a new agreement the company has reached with the state, which could influence the EPA’s regulations for the chemicals.

As part of the agreement announced Friday, 3M will assess contamination of so-called forever chemicals in two Alabama counties and any additional contaminated sites identified in the future.

The company also will control emissions of per- and polyfluoroalkyl substances, or PFAS, into water and air, and determine the chemicals’ health risks and impact on the environment. It’s not clear how much the company will spend to do so.

“As we move forward with the actions, we will account for them in our operating plan. At this time, we won’t speculate regarding these costs,” 3M spokesman Sean Lynch said, adding that the company is “fully committed” to fulfilling its obligations under the agreement.

The state called the agreement a “precedent-setting” order that holds 3M accountable for cleaning up PFAS.

The state hopes the EPA can use the health risk information from 3M’s assessments as it potentially develops standards for some of the chemicals, according to a press release from the Alabama Department of Environmental Management.

‘Significant Research Project’

Haynes & Boone LLP attorney Jeff Civins, who has previously represented companies facing PFAS liability, described the Alabama deal as a “significant research project” and a precedent that will affect how other states approach regulation.

Alabama, like most states, doesn’t have numerical limits on PFAS discharges, but is using a “wide spectrum of regulatory authorities” in the settlement with 3M, Civins said.

“That’s a basis for the state to argue, and other states to argue, that others are required to undertake these types of steps also,” he said.

The agreement “sets the stage to establish regulatory standards that are something less than protective of human health and the environment,” said Michael Blumenthal, of counsel at McGlinchey Stafford PLLC in Cleveland.

“Any health risk assessments conducted by 3M should allow affected parties, citizen groups and ADEM ample time to review, comment and challenge,” he said.

Agreement Applauded

3M operates a film and chemical manufacturing plant in Decatur, Ala. The surrounding area will be part of the assessment. In the agreement, the state identified multiple other locations throughout northwestern Alabama where 3M’s waste was found.

The state claims 3M initially submitted inaccurate PFAS monitoring results and didn’t disclose its emissions of potential pollutants. The company later addressed the claims.

PFAS chemicals may cause adverse health effects, including developmental harm to fetuses, testicular and kidney cancer, liver tissue damage, immune system or thyroid effects, and changes in cholesterol, according to the Environmental Protection Agency.

The EPA applauds the state’s efforts to address PFAS, including the agreement, Mary Walker, its regional administrator for the Southeast, said in a news release.

Consent Order

Alabama opted for a consent order, rather than pursue litigation, because the order is “the quickest and surest route to accomplish the goals of reducing public exposure to PFAS now and preventing exposure in the future,” Shawn Sibley, the state’s environmental department’s general counsel, said.

Lance LeFleur, director of the Alabama Department of Environmental Management, said 3M would “pay what it takes to fix permanently whatever PFAS problems it created.”

Several other states, including New Jersey and Minnesota, have sued 3M over PFAS contamination. Minnesota’s attorney general settled its lawsuit against 3M for $850 million in 2018.

The company’s next quarterly earnings call is scheduled for July 28.

—With assistance from Ellen M. Gilmer.

(Added comments from Jeff Civins and Michael Blumenthal in sixth through 10th paragraphs.)

To contact the reporter on this story: Sylvia Carignan in Washington at scarignan@bloombergindustry.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergindustry.com; Rebecca Baker at rbaker@bloombergindustry.com

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