City commissioners only have a couple of days left to decide if they want to keep Lakeland in a massive class action lawsuit against DuPont and 3M for contaminating public water systems — including ours — with toxic “forever chemicals.”
City Attorney Palmer Davis told commissioners on Friday that Lakeland could receive about $1.1 million from DuPont and $13.5 million from 3M as part of a $13.6 billion settlement tentatively approved by the U.S. District Court in Charleston, S.C.
The money would be set aside for future efforts to detect and remove chemicals known as PFAS (perfluoroalkyl and polyfluoroalkyl substances) from the city’s water supply — although actual remediation costs are likely to be far higher than the payout.
“The way the settlement agreements are structured, you’re in the class unless you opt out,” Davis explained. The deadlines to request exclusion are Dec. 4 for DuPont and Dec. 11 for 3M.
Davis said Lakeland’s share of the settlement is a “rough estimate” based on allocation tables that factor in the amount of contamination and volume of water. If Lakeland accepts the settlement, it cannot sue again later based on new findings.
Several cities have criticized the settlement offer as inadequate and premature, saying there’s not enough information about the scope of the problem or the potential costs of addressing it. At least a dozen have opted out to reserve the right to pursue their own claims later. They include: Fort Worth; Portland, Ore.; Myrtle Beach, Columbia and Lexington S.C.; LaGrange, Ga.; Hastings, Minn.
“If you opt out of the class, you’d have to maintain your own litigation against 3M and DuPont, so you’d be engaging in highly complex litigation against international companies,” Davis told the commissioners.
The settlement agreement was reached just as the case was about to go to trial after a five-year legal battle that involved 7.4 million pages of discovery documents and 160 depositions.
“It makes a lot more sense to stay in than opt out, so that’s my recommendation to you,” Davis said. In addition to the expense of pursuing a case, he said: “There’s definitely talk that both of these companies may file for bankruptcy. If you’re part of the class, you’re a protected creditor. If you go it alone, then you’re on your own and you may not get anything.”
An ‘urgent public health issue’
For many decades, PFAS chemicals were used to make industrial and consumer products including firefighting foam, nonstick cookware, grease-resistant food packaging, and stain- and water-repellant carpets, upholstery and fabrics. This included products labeled Teflon and Scotchguard.
In the “PFAS Strategic Roadmap” for 2021-2024, EPA Administrator Michael S. Regan wrote: “As the science has continued to develop, we know more now than ever about how PFAS build up in our bodies over long periods of time, and how they can cause adverse health effects that can devastate families.”
Over time, researchers have discovered several alarming things:
- PFAS chemicals don’t break down in the environment, or do so extremely slowly, hence the nickname “forever chemicals.”
- They’ve been found in air, surface water, groundwater, soil, fish and the blood of people and animals all over the world — including Antarctica and the Tibetan plateau.
- Exposure has been linked with a variety of health risks including prostate, kidney and testicular cancers; decreased fertility; immune disorders; developmental delays and hormone disruption in children; liver and thyroid problems; and increased cholesterol.
In 2016, the Environmental Protection Agency set a “health advisory” guideline for two of the chemicals: PFOA and PFOS. The levels were set at no more than 70 parts per trillion combined in drinking water.
Earlier this year, the EPA dramatically lowered the acceptable levels, setting the “lifetime health advisory level” for PFOA at .004 parts per trillion and PFOS at .02 parts per trillion. It also established levels for two other PFAS chemicals. Water utilities must report levels of 4 parts per trillion or more.
The EPA has also advised that national, legally enforceable drinking water standards are coming, with limits for six PFAS compounds and requirements to monitor 29 PFAS compounds.
The challenge for Lakeland
While PFAS have been found in Lakeland’s water, the city is within the EPA’s recommended standards — for now, Water Production Manager Joe Costine told commissioners Friday.
Lakeland currently gets its water from 19 wells drilled into the Floridan aquifer. The raw water is delivered to two treatment centers where it is softened with lime and disinfected with chlorine: the C. Wayne Combee Plant and the T. B. Williams Plant.
Costine said there are two generally accepted methods to remove PFAS from drinking water: granular activated carbon filtration or reverse osmosis. Lakeland is not presently using either process at its two treatment plants.
“They’re expensive to set up … but the biggest problem is not necessarily the cost of treatment; it’s actually the cost of disposal,” Costine explained. “Because then you’ve concentrated a hazardous chemical.” He said the only current method of disposal is incineration at 4,000 degrees Fahrenheit, and “not just any incinerator can handle that.”
One Florida city that has started removing PFAS from its water is Stuart, which is expecting to get more than $100 million from the class action settlement. In 2016, Stuart discovered that the levels in its water supply exceeded federal guidelines. It closed its 24 wells and built an $18.3 million reverse osmosis treatment facility. Costine said Stuart has been shipping the PFAS concentrates by barge across the Gulf of Mexico to an incinerator in Texas.
Testing methods are evolving, but Costine said because the amounts are thousandths of parts per trillion, it is difficult to know precisely how much PFAS is in the water. Also, there are more than 14,000 known PFAS compounds but current guidelines only address six.
He said Lakeland will likely have to invest in remediation in the future, but abatement processes may also improve and become more accessible.
“Hopefully the regulations will not be too burdensome on us, once they pass,” Davis said.
Settlement won’t be enough, but alternatives are grim
A fact sheet put together by attorneys who brokered the settlements noted that the 3M and DuPont settlements alone won’t be enough to clean up the nation’s water supply.
“The anticipated cost of PFAS drinking water clean-up exceeds the market cap of all potentially liable defendants,” the fact sheet says. “It is estimated that it would cost approximately $100 billion or more to address the nation’s PFAS contamination. Finding funding sufficient to address a problem of this magnitude will require more than one funding source.”
The fact sheet says the class action settlements could be combined with other funding sources, including about $9 billion earmarked by the federal government for PFAS cleanup.
If municipalities opt out of the settlement, the attorneys caution, “That will set them back years, since they would need to relitigate the issues that the settlements would otherwise resolve and further there is no guaranteed outcome.”
“By contrast, the settlements remove litigation risk and will provide funds starting in 2024 so (public water systems) can begin to fix their PFAS contamination problems quickly,” it says.
Additionally, if too many water systems “seek their own trials or a larger payday, 3M and DuPont will have no choice but to exercise their right to terminate the settlements, and might well seek bankruptcy protection. If that were to occur, (municipalities) would be forced to wait years for the bankruptcy court to sort out all of the defendants’ creditors and water systems could end up with pennies on the dollar, at best.”
Lakeland commissioners did not formalize their decision Friday because they cannot vote during agenda study sessions, but most seemed to agree with Davis’ recommendation.
There is a City Commission meeting on Monday.
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Are there any recommendations for how the public can safely use the cities water in the meantime?