What it really means when Minnesota’s courts and regulatory agencies service special interests. Another 3M scandal in which I had some involvement was the expanded burning of hazardous waste at the 3M haz waste incinerator in Cottage Grove. In that business, the MPCA also acted as a servant of 3M rather than a protector of Minnesotans. Of course it is generally easy for elected officials, courts, and regulators to stomp on individuals and small businesses. The real test of integrity is how they behave when confronted with powerful special interests such as 3M, Xcel energy, or US Steel. From what I can see the record is pretty bad, with Attorney General Lori Swanson looking better than some others.
FOR DECADES 3M was the primary producer of C8, or PFOA, and was the sole producer of a related chemical known as PFOS. But while DuPont was caught up in a massive class action suit over C8, 3M has largely avoided public scrutiny and serious legal or financial consequences for its role in developing and selling these industrial pollutants.
In February, however, a state court in Minnesota, where the company is headquartered, allowed a lawsuit against 3M to move forward. And late last year lawyers filed a class action suit in Decatur, Alabama, home to one of 3M’s biggest plants. Both lawsuits charge that 3M knew about the health hazards posed by the perfluorinated chemicals it was manufacturing and using to make carpet coating, Scotchgard, firefighting foam, and other products — and that the company knew the chemicals were spreading beyond its sites. With PFCs cropping up in drinking water around the country and all over the world, the two lawsuits raise the possibility that 3M may finally be held accountable in a court of law.
State Attorney General Lori Swanson first filed the lawsuit against 3M on behalf of the people of Minnesota in 2010, claiming that the company polluted more than 100 square miles of groundwater near its plant in Cottage Grove Minnesota as well as four aquifers serving as drinking water for some 125,000 people in the Twin Cities. The suit charges that the company piped PFC-polluted wastewater into a stream that flows into the Mississippi River and disposed of it on land near the river, which allowed it to leach into the river.
Based on the company’s own research, the complaint argues, 3M “knew or should have known” that PFCs harm human health and the environment and that the chemicals would leach from their disposal sites into and “result in injury, destruction, and loss of natural resources of the State.”
William A. Brewer III, a partner in the firm representing 3M in PFC-related litigation, said that 3M “absolutely and vigorously” denies all charges in that suit — and any others that “describe what 3M did as polluting.” While the complaint says that 3M’s emissions of the chemicals into water was “not authorized or permitted by the state,” Brewer disagreed, arguing that “100 percent of 3M’s conduct has been permitted by the state,” which he told me undermines the idea that 3M is responsible for any leakage that might have resulted. “When you take your waste or some of it and you deliver it some place that the state tells you you can bring it and then they turn around and tell you it wasn’t properly managed, we just deny that we have responsibility for other people’s conduct.”
After the initial discovery of PFCs in drinking water near the Cottage Grove plant, 3M installed filtration systems on the water supply for the nearby community of Oakdale, provided bottled water for residents with private wells, and remediated three of its former dump sites. However, the most recent water tests, released by the EPA in January, still showed 25 detections of PFCs in wells that provide drinking water to Woodbury, Oakdale, and Hastings — which all are near 3M headquarters — as well as in the Cottage Grove water utility, which serves more than 33,000 people.
In two wells in Oakdale, Minnesota, PFOS contamination detected by EPA tests released in January exceeded the provisional health levels set by the agency. And several Oakdale wells had PFOA levels higher than those that qualified residents to participate in a class action suit against DuPont in West Virginia and Ohio.
Since 2012, lawyers on both sides of the case have been caught up with a technical question. 3M had tried to have Covington & Burling LLC, the firm representing the state, disqualified on the grounds that it had a conflict of interest because it had at one point represented 3M on other PFC-related issues. In February, a judge ruled that the firm could represent the state and that the suit could move forward.
An Early Exit Strategy
In part, 3M escaped blame for PFC contamination because it opted to stop producing both PFOA and PFOS in 2002, while DuPont and other companies didn’t phase out PFOA until 2013 or later. At the time, the decision brought the company praise for its foresight and good judgment. “3M deserves great credit for identifying this problem and coming forward voluntarily,” said EPA Administrator Carol M. Browner.
Brewer, 3M’s attorney, continues to argue that the company’s early exit from the C8 business places it in a separate category from DuPont. “3M has acted appropriately and on the principled path,” he told me. “They immediately reported it, investigated it and frankly decided to exit the C8 chemistries in their entirety well more than a decade before anyone else who was a competitor.”
But Gary Davis, a partner in Davis & Whitlock, which filed the 2015 case against 3M in Decatur, said the company had evidence of the dangers of PFCs well before it stopped making them. “We’ve found out that they knew it was toxic. They have the knowledge even more deeply than DuPont about the toxicity of the chemicals,” said Davis. “We believe it is absolutely parallel.”
While the two companies stopped making C8 at different times, the situations of the people living near their production sites were alike in many ways. “You had communities outside one of these manufacturing plants that were knowingly exposed to these perfluorinated compounds for many, many years and were seeking relief and to get tested,” said Rob Bilott, the attorney who launched and continues to oversee the cases against DuPont in West Virginia and Ohio.
Bilott was also one of the attorneys representing plaintiffs in Minnesota in a 2004 case against 3M that was very similar to the one in West Virginia. Both suits sought damages on behalf of the communities, and both argued that the companies knew the chemicals were toxic to animals and were accumulating in people and the environment.
In Minnesota, however, Judge Mary Hannon, [link added by Muller] determined that state law did not permit medical monitoring claims to be pursued in class-wide suits. So while the West Virginia suit yielded a $343 million settlement and led to the medical monitoring of tens of thousands of exposed people, which in turn allowed epidemiologists to find probable links between C8 and six diseases, the case in Minnesota on behalf of people who had PFCs in their wells involved no medical monitoring. Judge Hannon ruled that plaintiffs’ lawyers could not even mention the possibility that the chemicals posed any harm.
“The Primary Source”
3M also escaped largely unscathed when the Minnesota Pollution Control Agency began investigating PFCs in 2001. The coordinator of the MPCA’s emerging contaminants program at the time, a chemist and biologist named Fardin Oliaei, found that the chemicals had made their way from several of 3M’s disposal areas into ground water, drinking water, local fish, and the Mississippi River. Eventually Oliaei’s investigation was blocked by Sheryl Corrigan, the commissioner of the MPCA, who managed 3M’s environmental affairs before taking the top job at the state agency. In 2006, Corrigan fired Oliaei.
When she began finding PFC contamination in fish and in unlined landfills near active farmland, Oliaei told me, “I knew what I was doing was important.” But the pushback began soon thereafter. “The first person who questioned me was my immediate manager. Then I found out he was directed by our commissioner,” said Oliaei, who now lives in Alabama. “The last thing I thought about was that I would lose my job. I still thought that because I was doing the right thing, because I’m doing my job I am protected.”
In 2006, after being told that if she didn’t sign a resignation letter she would be “removed from the building,” Oliaei settled a whistleblower claim against the MPCA for $325,000. Corrigan ultimately stepped down from her post as a result of the controversy, but 3M largely escaped responsibility for the local PFC issue. The state never published the investigation that Oliaei had been researching before she was fired.
Olieai, who spent half of her settlement on lawyers’ fees, was unable to get a comparable job after she was fired. Although the MPCA did issue a report on PFCs two years after Oliaei’s departure, and the state health department ultimately conducted its own research on contaminated hotspots throughout the state and set health risk limits for some PFCs, it took four years for the state to file the lawsuit attempting to hold the company financially accountable for exposing the population to dangerous chemicals. And it was another six years of legal holdups before the case was able to move forward.
Meanwhile, in Alabama, where the most recent EPA testing found PFCs in 87 water samples, 3M has benefited from another series of legal near misses. One class action suit filed in 2002 was stayed until last year, when 3M and the plaintiffs agreed to begin the mediation process. Two others have been put on hold pending the outcome of the first.
The most recent class action suit against 3M in Decatur, filed last October by Davis & Whitlock, seeks damages for the customers of the West Morgan-East Lawrence Water and Sewer Authority, whose drinking water has been tainted with PFCs. This suit argues that 3M emitted PFCs into the nearby wastewater treatment plant, which in turn discharged them into the Tennessee River. According to the complaint, 3M was dumping chemicals into river and soil despite having known since 1986 that it needed to dispose of them in lined landfills or by burning. The suit also charges the Japanese Company Daikin America with contaminating water, but calls 3M’s Decatur plant “the primary source” of PFOA and PFOS in the Tennessee River and the Decatur area.
Daikin provided a written response to questions from The Intercept, noting that the company never used or manufactured PFOS, and that any contamination on its plant “is there as a result of activities by the previous owner.” Daikin acknowledged using PFOA from 1994 to 2011, but noted that between 2000 and 2008, it “reduced overall releases of PFOA by over 99%.” The statement also said that “Daikin’s discharges of PFOA to the Tennessee River were made in compliance with permits issued by” the Alabama Department of Environmental Management and that Daikin “continues to cooperate with EPA and ADEM to address issues relating to PFOA at the site.”
Davis & Whitlock plans to file yet another lawsuit against 3M on behalf of the conservation group Tennessee Riverkeeper, seeking relief under the Resource Conservation and Recovery Act for endangering health and the environment by contaminating several locations around Decatur with PFCs.
Although he feels 3M was “let off the hook” in previous contamination suits, Davis believes recent research on the health effects of PFCs will help make both of the upcoming cases. In 2012, the C8 Science Panel linked PFOA with six diseases. And in 2014, the EPA summarized evidence of multiple health effects of PFOS, including reproductive and liver effects, and noted that the chemical is officially considered “suggestive of carcinogenicity.” Other recent studies have pointed to the fact that very low levels of PFCs — much lower than the drinking water levels set by the state of Minnesota and, provisionally, by the EPA — can impact children’s health.Brewer dismissed all this research, saying, “There is no scientific evidence that there’s any connection between environmental exposure to PFOS or PFOA and negative health effects.” As for the C8 Science Panel, whose three members are all epidemiologists with PhDs, Brewer said, “That’s not populated by medical researchers or scientists. They’re statisticians.”
Brewer said he’s confident 3M will prevail in the upcoming cases, pointing to a recent lawsuit in the States of Guernsey over PFC contamination from firefighting foam, in which 3M argued there PFCs posed no harm. The plaintiffs dropped the charges after the trial began. But not everyone is quite so optimistic. The financial website The Motley Fool recently warned investors that damages from the upcoming PFC litigation against the publicly held company “could easily run into the tens of billions of dollars, or more.”
- Poisoning the Well: Toxic Firefighting Foam Has Contaminated U.S. Drinking Water
- Flint Residents May Have Been Drinking PFCs In Addition to Lead
- The Case Against DuPont
Correction: April 11, 2016
An earlier version of this story incorrectly referred to the 2010 Minnesota lawsuit as a class action lawsuit. We regret the error.
Top Photo: 3M Co. headquarters in St. Paul, MN, Wednesday, March 9, 2016.