Santa Clarita Valley Water Agency officials voted Friday evening to stay in litigation with 3M and Dupont, a case that is progressing on a yearslong settlement timeline expected to conclude at the end of the decade.
The federal lawsuit, which was filed in October 2020 and likely impacted due to a COVID-related case backlog, has more than 100 plaintiffs in federal court, both city-type water agencies and individuals from across the country, and a number of defendants, including Dupont and its successor companies. The plaintiffs are seeking to recoup the cost of removing the companies’ contaminants.
The upshot for the local water users is that by being “first in line” in terms of the settlements, the agency is expected to recoup in the neighborhood of $25 million to help pay for the removal of per- and polyfluoroalkyl substances, or PFAS, a family of substances called “forever chemicals” by the Environmental Protection Agency because they don’t break down in nature or in humans’ bodies.
The downside is the settlement, some of which puts funding in an escrow account expected to be fully dispersed through a timeline ending Dec. 31, 2030, only covers a fraction of the cost to the agency of removing the contaminants. And there are no guarantees the businesses will survive what could be many settlements to come.
The agency would have had to submit any objections to the settlement agreement by an October deadline and then any request for an exclusion from the settlement for Dupont by Dec. 4, with another deadline scheduled for Dec. 11 for 3M.
Maria Gutzeit, vice president of the SCV Water Agency governing board, said Wednesday the board had to balance a number of interests in deciding to stay in the settlement. The vote at the 6 p.m. Friday meeting was 8-0, with one governing board member, Director Beth Braunstein, absent from the meeting.
The positives included a guarantee of payment for ratepayers without additional costs and years of legal wrangling with a 3M-sized company, and the fact that additional settlements could prompt a bankruptcy, putting SCV Water in a position to get less, she said.
“My main take on this is yes, I think this is a good deal, and here’s why: because PFAS is such a widespread chemical, it has affected so many communities and so many individuals across the country,” it will likely be in litigation for decades regardless, she said.
“And for the water agencies to be in front of this, to be some of the first people or first entities to get funds, I think is tremendously lucky,” she added. “There’s a potential that these businesses will file for bankruptcy. There’s a lot of things down the road, that we don’t know what’s gonna happen, and this brings some certainty that some funds will come to us to help pay for that cleanup.”
Governing board member Bill Cooper shared a similar sentiment: It won’t cover the bill, but it will help.
“The settlement is not as much as we would have liked to have seen, but it will help reduce the cost for ratepayers of bringing back wells that we’ve had to shut down due to PFAS,” he said in a phone call Wednesday. “It’s going to take several years to bring those wells back into service, but this will help keep the expenses down in doing that.”
He also said the deal doesn’t preclude the agency from going after local polluters and users of PFAS, which is also part of the problem. If those parties can be identified, then those damages can be sought, too.
Lynne Plambeck, president of the Santa Clarita Organization for Planning and the Environment, said she was a strong supporter of the agency taking action on PFAS when she was on the board in 2019.
“At least a settlement avoids the problem we are experiencing with Whittaker-Bermite, where no money has yet been forthcoming, because they appealed the judgment,” she wrote in an email Wednesday referring to a 1,000-acre property near the city’s center that was recently the subject of a decades-long remediation effort by the Department of Toxic Substances Control. The state sued the property for a cleanup settlement in 1987, the financial responsibility for which is still actively being litigated.
“The ultimate answer is a stronger regulatory framework that protects communities against harmful chemicals. It should not have taken a movie to force the government to take actions to protect our health,” she said, referring to the 2019 feature film “Dark Waters” with Mark Ruffalo.
PFAS, for which the federal government imposed strict new limits in March, has been a problem for the environment since fluorosurfactant products came into widespread use during the 1940s. The products are known to the average consumer as chemicals that create Teflon coating, “Scotchgard,” stain-proofing compounds, waxy surfaces and aqueous film-forming foam (“AFFF”), a firefighting agent used to control and extinguish Class B fuel fires.
Per- and Polyfluoroalkyl substances, namely perfluorooctanoic acid (pfoa) and perfluorooctane sulfonate (pfos), are two of the most widely used and studied chemicals in the PFAS group. They have been replaced in the United States with other PFAS in recent years.
“Current scientific research suggests that exposure to certain PFAS may lead to adverse health outcomes,” according to the EPA website. “However, research is still ongoing to determine how different levels of exposure to different PFAS can lead to a variety of health effects.”
A very common characteristic of concern of PFAS, according to the EPA, is that many break down very slowly and can build up in people, animals and the environment over time.
A statement by 3M acknowledged its changing understanding of the chemicals it uses and a commitment to remediating the contaminants.
“As the science and technology of PFAS, societal and regulatory expectations, and our expectations of ourselves have evolved, so has how we manage PFAS,” according to a statement shared Nov. 27 by Grant Thompson, community engagement and public relations senior specialist for brand and communications in public affairs for 3M. “We have and will continue to deliver on our commitments — including remediating PFAS, investing in water treatment and collaborating with communities. 3M will continue to address PFAS litigation by defending itself in court or through negotiated resolutions, all as appropriate.”
The Harvard School of Public Health published an article, “Protecting against ‘forever chemicals,’” in March, that cited some of the concerns, including that “a number of studies have linked PFAS to cancers, high cholesterol, thyroid disease, liver damage, asthma, allergies, and reduced vaccine response in children. PFAS have also been linked with decreased fertility, newborn deaths, low birthweight, birth defects and delayed development.”
Online records available through the federal courts system indicate the case already has several thousand pages of reports and testimony.
“Based on the Estimating Tool provided for the pending settlement, SCV Water understands the agency may expect to receive between $22 and $26 million (net of legal fees) from the Phase 1 settlement funds. In addition, SCV Water plans to submit a claim for prior response costs for consideration from the Special Needs fund,” according to Kevin Strauss, a spokesman for SCV Water, sharing the agency’s current understanding of what it stands to gain in the deal. “It should be noted, however, that these recoveries are contingent on final court approval of the settlement terms, the overall magnitude of Phase 1 and Special Needs claims, and potential settlements with the remaining defendants in the case.”
Strauss also shared data indicating the total local costs for remediation to ratepayers could reach hundreds of millions of dollars, once one factors in the costs of studies to justify the facilities needed and then future maintenance costs of those facilities.
“To date, SCV Water has spent approximately $25 million on capital improvement projects to address PFAS contamination, as well as approximately $2.5 million in operating and maintenance costs (2021 to today),” he wrote in an email prior to the governing board’s closed session vote last week. “SCV Water estimates spending $200 million in capital improvement projects at complete buildout of the Agency’s CIP plan, as well as an estimated $15 million annually for operating and maintenance costs.”
The agency also has secured more than $9.5 million in federal grants to help pay for the remediation programs, which is part of an ongoing effort.
