PFAS Maker 3M Pays Utility’s Legal Fees in State Regulatory Fight

Corporate giant and PFAS maker 3M Co. is underwriting a legal fight by a New Hampshire water utility to have tough new regulatory rules thrown out, an unusual partnership that has alarmed local environmental activists.

The joint legal effort raises concerns about how water utilities are upholding their commitment to provide safe water and respond to PFAS contamination, according to Mindi Messmer, a former state legislator and co-founder of the New Hampshire Safe Water Alliance.

“They’re in danger of undermining consumer confidence when they side with a polluter like 3M,” the environmental scientist said about the utility.

PFAS, or poly- and perfluoroalkyl substances, have been used by hundreds of companies to make thousands of products, including semiconductors, sticky notes, and shoes. The original PFAS manufacturers—the 3M Co. and DuPont—Chemours, a DuPont spinoff, and some companies using the chemicals are the subject of several PFAS-related lawsuits.

Some PFAS have been linked to a host of health problems and prompted states to set new regulations to limit them in drinking water and other areas. New Hampshire’s governor in 2018 signed a state law to establish drinking water standards for four PFAS. Regulators came up with new limits that were set to take effect in September.

But Plymouth Village Water & Sewer District, a small utility serving about 1,100 customers, sued the state to get the rules tossed, joined by 3M, a biosolids management company, and a farmer associated with that company.

Their efforts led to a pause on the implementation of limits on the toxic chemicals. The New Hampshire Supreme Court is now reviewing a judge’s preliminary injunction on the matter.

‘Fighting the Process’

The Plymouth Village Water and Sewer District said it teamed up with 3M because it shares similar concerns about how New Hampshire drafted its PFAS regulations.

“I think it’s important to drive home the point that we’re not fighting the regulations,” said Donald Jutton, part-time district manager for the utility. “We’re fighting the process and we’re fighting a promise versus a defined solution.”

The relationship with 3M is built on common interest in a thoughtful regulatory process, even if officials at the water district “weren’t thrilled” about the partnership, according to Jutton.

The state law, signed by Gov. Chris Sununu (R) in July 2018, directed the New Hampshire Department of Environmental Services to establish drinking water standards for PFOA, PFOS, PFNA, and PFHxS—four PFAS substances. The law didn’t set a deadline but ordered rulemaking to begin by Jan. 1, 2019.

The state eventually set standards that were some of the strictest in the nation, and set to take effect on Sept. 30—the same day the lawsuit was filed.

The parties in the case said their concern was rooted in uncertainty over cleanup costs, and would pay to reduce PFAS levels in water if necessary.

“This new mandate is not in budgets, is an unknown number, and is precisely the sort of economic impact on public entities that the legislature has sought to prevent,” according to the original complaint.

Standing for the Case

Messmer said 3M was “shopping around to get a water district as the front person because 3M doesn’t really have standing to take this case in the state of New Hampshire.”

“And they did find a taker in Plymouth. I know they went to several towns and nobody else took it,” she said.

Jutton confirmed that 3M is fronting most of the legal costs in the case, with the water authority only responsible for about $5,000 in legal costs.

3M spokesman Sean Lynch refuted Messmer’s characterization, saying the company “joined with others who had mutual interests in challenging these rules and were successful in having them enjoined.”

The spokesman said the lawsuit is about the state’s failure to consider the costs and benefits of its regulation.

“We believe the development of drinking water standards should follow appropriate regulatory processes and be supported by the best available science,” Lynch said in an emailed statement.

Jutton said the Plymouth Water District joined the lawsuit after a district official read a newspaper article about a PFAS lawsuit that didn’t mention 3M. The district then reached out to a lawyer mentioned in the piece who connected the water authority with the company.

‘Significantly Different’

According to the suit, 3M’s interest in blocking the rules is similar to the local utility’s. The company operates a community water system for its employees in Tilton, N.H. The parties say that the state’s environmental agency invited comment on one set of PFAS standards, and then issued “significantly different” regulations in its final rule.

No federal limits on PFAS exist, although the Environmental Protection Agency set a nonbinding health advisory level of 70 parts per trillion for PFOS and PFOA, the two most frequently studied chemicals in the group of thousands of such substances.

PFAS 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 EPA.

Texas-based Haynes and Boone LLP environmental attorney Ann Al-Bahish said that even if the partnership between 3M and the utility doesn’t provide the parties more legal standing in challenging the regulations, it still offers the case more weight as there’s power in numbers.

“When people who don’t seem like they should be allies are allies, there can be persuasive strength in that, generally speaking,” said Al-Bahish, who isn’t involved in the New Hampshire case.

The case is Plymouth Village Water & Sewer Dist. v. Scott, N.H., No. 2020-0058, Case Docketed 2/20/20.