Beaufort-Jasper water sues seeking millions to reduce ‘forever chemicals’ in drinking water

Twenty-one chemical manufacturing companies contributed to the presence of several “forever chemicals” in the Savannah River, Beaufort and Jasper counties’ main source of local drinking water. This is according to a lawsuit filed in federal court by Beaufort-Jasper Water & Sewer Authority.

According to BJWSA officials, the proceeds from any judgment would fund increased filtration intended to reduce PFAS chemical levels in local water as required by the EPA by 2029. Ultimately, this would save ratepayers from having to absorb the full expense for an additional filtration system through increased water fees that could exceed $100 million.

What does the lawsuit claim?

The civil lawsuit filed on April 11 in the U.S. District Court of South Carolina in Charleston, alleges that the defendants, including 3M, DuPont and Corteva, are responsible for the presence of PFAS chemical compounds in the local environment. PFAS can be found in tap water, food and food packaging, non-stick cookware and in hygiene products like shampoo. This compound’s shorthand name stands for per- and polyfluoroalkyl substances. According to the Environmental Protection Agency, PFAS are a group of man-made compounds that have been used in industrial and consumer products since the 1940s. Their molecular bond makes them very difficult to break down (hence the nickname, forever chemicals). According to the Centers for Disease Control, 97% of Americans have PFAS in their bloodstream.

The EPA says that, according to peer-reviewed scientific studies, exposure to certain levels of PFAS over time can lead to decreased fertility, increased risk of cancer and disruption to the body’s natural hormone levels. There are thousands of different variations of PFAS, a handful of which have been studied more widely than others.

The water agency opted out of being part of a class action suit

The BJWSA lawsuit is separate from a similar class action suit settled March 29 where 3M committed to pay $10.3 billion to more than 11,000 public water systems across the country over the course of 13 years. According to Jeff La Rue, the Chief Communications Officer for BJWSA, they chose to opt out of the class action lawsuit because they felt “it didn’t go far enough to hold producers of these compounds responsible.” Had BJWSA joined the class action suit it would have prevented the authority from seeking future damages, said La Rue.

The authority decided to pursue their own litigation in hopes of using proceeds from a settlement or judgment to offset the cost of installing new PFAS removal technology into their two water treatment plants, according to Paul Calamita, an attorney from AquaLaw, the firm that will represent BJWSA in this lawsuit. “Instead of taking a few pennies on the dollar, and giving significant release to 3M, it was a better play to pursue them. It’s going to take time, but you have a better chance of hitting a double, triple, or home run than just taking the single,” Calamita said.

Columbia Water in the state’s capitol and Grand Strand Water & Sewer Authority, which serves Myrtle Beach residents, also opted out of the class action lawsuit and have pursued litigation on their own. The Charleston Water System is pushing back against the EPA’s rule, claiming it yields very few real-world benefits while raising rates for customers.

What is spurring this legal action?

In April, the EPA and Biden-Harris Administration announced the first-ever national drinking water standard for PFAS. Public water systems must comply with the new Maximum Contaminant Levels by 2029, which will be 4.0 parts per trillion for PFOA and PFOS and 10.0 parts per trillion for PFNA, PFHxS and HFPO-DA. For reference, one trillion is a thousand billions, and one part per trillion is equivalent to an inch in 16 million miles.

According to the EPA’s Final PFAS National Primary Drinking Water Regulation, the ruling will reduce PFAS exposure for approximately 100 million people, prevent thousands of deaths, and reduce tens of thousands of serious illnesses.

The EPA estimates that between 4,100 and 6,700 public water systems across the country will need to take action to address their PFAS levels by 2029, with an estimated cost of $1.55 billion annually to implement regulation. BJWSA is just one of the thousands of utilities that will need to make adjustments to meet the standards by 2029.

Calamita said that the law allows you to hold all manufacturers responsible, with each company paying a percentage based on their market share. Given the vastness and interconnected nature of water systems, it is nearly impossible to discern which of the chemical companies is directly responsible for PFAS in any water system.

Of the 12,000 utilities that were eligible class members, Calamita said, about 1,000 opted out, which was a lot more than 3M and DuPont expected. Of the 1,000 who opted out, about half did so because they had no detectable PFAS levels, and were likely not going to receive any damages. The other half that opted out, including BJWSA, had large projects to complete in order to reach the EPA’s 2029 standard and were looking for “meaningful recovery” said Calamita.

The results of local testing

The BJWSA has been testing their water for PFAS since 2013. In 2017, the authority started conducting yearly PFAS testing in their main water source, the Savannah River and at their two treatment plants. The larger plant at Chelsea mainly serves water to customers north of the Broad River. The Purrysburg plant supplies to those south of the Broad.

In the spring of 2023, BJWSA increased the frequency of the PFAS testing to monthly. Since April 2023, results from BJWSA’s testing for two specific PFAS compounds named PFOA and PFOS have ranged from 2.9 ppt to 11 ppt. According to the regulations due to go into effect in 2029, levels above 4.0 ppt would exceed the limit set by the EPA.

How BJWSA will meet the new regulations

To meet the 2029 standards, the authority will likely have to install a new treatment process in the Chelsea and Purrysburg plants. BJSWA hired a consulting firm that estimated the expense to install a new layer of filtration to be $100 million. The new filtration system would run raw source water through carbon to absorb PFAS like a sponge. Yearly upkeep would cost around $3 million. La Rue said that the authority is exploring options to minimize this cost.

La Rue said that BJSWA has received a grant in the ballpark of about $5 million from the State Revolving Fund, a program by the South Carolina Department of Environmental Services (formerly DHEC) that provides low-interest rate loans for building and repair to wastewater and drinking water plants in the state.

La Rue says this is just a small drop in the bucket compared to the projected cost of installation and upkeep. Since the new mandate is essentially unfunded, La Rue said, rate payers would have to pick up the extra cost over a period of time. It is unclear at this point what rate increases would look like for customers, but it would likely be stretched out over several years. But, La Rue emphasized, it is unfair for these costs to land on rate payers’ shoulders.

“Beaufort-Jasper has a lot of innocent customers,” said Calamita, “So we’re hoping these companies will, in the end, help us with the burden they have imposed on us.”