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BACKGROUND OF THE 3M LAWSUIT

This Office has been inundated with inquiries about the lawsuit against 3M Company regarding fluorochemicals. The purpose of this advisory is to provide background on the litigation.

History

Manhattan Project.

The Manhattan Project was a top-secret project undertaken by the American military during World War II.  Its mission was to create the nuclear bomb.  A major hurdle in the Manhattan Project was the inability to separate the uranium needed to make the bomb.  The scientists discovered that fluorine gas could be used to separate the uranium.  Fluorine is a greenish-yellow gas that is buried deep in the rocks beneath the earth and is among the most dangerous elements that exists. It was called the “Wildest Hellcat” or the “Devil’s Poison.”   It can burn water.  It can burn steel.  It can burn asbestos. 

Fluorochemicals (PFCs).

Fluorine doesn’t just separate uranium for an atomic bomb.  It also bonds with carbon molecules and can be used to make something called fluorocarbon, or fluorochemicals.  This case is about fluorochemicals.

Fluorochemicals have certain unique properties.  They repel water.  They repel oil.  They can withstand temperatures of up to 1,700 degrees.  They are called “Forever Chemicals” because they are so indestructible. 

3M Acquires the Fluorochemical Patent and Markets “Scotchgard.”

After the War, 3M Company purchased the patent to develop fluorochemicals. 

Fluorochemicals are man-made chemicals.  They are sometimes called PFCs.

God did not put them on this Earth—they were made by man.

3M started manufacturing PFCs in the 1950s in Minnesota.

3M used PFCs to make Scotchgard.  Carpets sprayed with Scotchgard would repel stains. Not only were the stains repelled, but the chemicals never degraded. 

The repellent was so effective that 3M made a television advertisement where it laid carpet on a Los Angeles freeway and applied Scotchgard to one half of it.  It then dumped a truckload of dirt on the carpet and packed it down. At the end of the day, the Scotchgard portion of the carpet was vacuumed and clean while the other side was destroyed.  Scotchgard was one of the most successful products made by 3M. 

3M made a billion dollars or so in revenue every two or three years or so on the sale of PFCs in the United States.  It made $300 million a year in revenue from PFCs in 2000 alone, which would be about $450 million in today’s dollars.  [PDF 1]

3M also sold the fluorochemicals to DuPont Chemicals, which used the chemical to make Teflon for kitchenware and manufacturing equipment.

3M Produces Hazardous Waste and Dumps it to “Satisfy Their Demands”

It is believed that from 1950 to the early 2000s, 3M dumped millions of pounds of the waste from its PFC manufacturing process in the ground and water in the east metropolitan area of the Twin Cities.  Minnesota quickly became ground zero for PFCs.  3M made the PFCs in Minnesota and shipped them around the world and even shipped waste from its Illinois manufacturing facility back to Minnesota. 

For three decades—from the 1950s to the 1970s—3M simply dug trenches in the east metro and dumped the chemicals. 

In 1960, 3M planned a new dump site in Woodbury.  [PDF 2] 3M noted that “the wet waste material will be dumped in long trenches and allowed to seep into the ground and as soon as one area becomes saturated, it will be covered over and another trench dug.”  But it still dumped the waste into unlined trenches.

By 1962 3M knew that “some of our liquid waste have reached 75’ below ground within about one year of operation” in Woodbury.  [PDF 3]

3M knew that the PFCs dumped in Cottage Grove were seeping into the Jordan aquifer, the underground river that provides the metropolitan area with much of its drinking water.  It also knew that the PFCs would seep into the St. Peter aquifer, one used to supply drinking water for wells.  [PDF 2]  It admitted that “from a geographical standpoint this area would not be ideal” but that “we feel it should satisfy our demands.”  Note the reference to 3M’s demands.  But what about the public’s rights? 

3M also dumped 70,000 pounds of waste from its PFC manufacturing process in one year into the Mississippi River. 

3M knew that, once dumped into the ground, these Forever Chemicals would seep into the drinking water. 

3M knew that other companies incinerated their wet waste.  Its Geology Department recommended that 3M incinerate this waste too.  This is what they wrote in 1962: “It is still the consensus of the Geology Department in regard to safeguarding the underground water supply of the area that the company seriously consider the installation of an incinerator or other means whereby this wet waste material will not have an opportunity to seep into the soil.”  [PDF 4]  3M ignored the recommendation and for the next ten years continued to dump the PFCs in the ground. 

Eventually, 3M put clay linings in some of its trenches.  But it knew they were “ineffective.”  In 1963 a truck driver told 3M that its liners didn’t work and that “as soon as the waste was dumped it seeped into the ground.” 

All told, 3M dumped these chemicals in Woodbury from 1960 to 1966; in Oakdale from 1956 to 1960; at the landfill in Washington County from 1971-1974; and in Cottage Grove from 1951 to 1974 and from 1978 to 1980. 

In 1971, 3M built an incinerator to burn some of the PFCs.  This was two decades after it started to manufacture it and one decade after being told to incinerate the PFCs.

But 3M still had drums of tars from the manufacturing process that couldn’t be incinerated.  These are called hydrofluoric acid tars or HF tars.

A 1974 3M memo states: “The adequate disposal of hydrofluoric acid containing tars poses many problems.  The extremely hazardous nature of these materials makes their handling and ultimate disposal difficult and often dangerous.” [PDF 5] 3M recorded the disposal of tars on a Chemolite Hazardous Waste Manifest and listed the EPA Code D002—which means corrosive.  [PDF 6]

The 3M 50-Year Cover-up of The Extent and Severity of the Pollution

3M had one goal:  to “continue to maintain regulatory approval to sell PFCs as long and as broadly as we can.”  [PDF 7]

3M engaged in a long and aggressive cover-up of its extensive pollution of the water.  It also engaged in a long and extensive cover-up as to PFCs being the pollutant. 

Unfortunately, some of the 3M documents no longer exist.  3M instructed its employees to destroy notes and not to write things down.  Indeed, a 1998 memo advises an employee to “clean out computer of all electronic data” relating to these chemicals.  [PDF 8]  But some documents still exist which tell the tale:

In response, 3M misrepresented that its burial of this waste was “limited” (it was not) but that it did not have any disposal records to show the government what it buried. This is what it wrote to the MPCA:

“Our investigation also indicates there may have been some limited burial of certain hydrofluoric acid tars that were neutralized with lime prior to or at the time of disposal.  It is impossible to identify all specific industrial wastes that were handled because disposal records were not maintained in those years.”  …

“The suspected waste handling area or areas have been landscaped and a large, advanced wastewater treatment facility has been built in the vicinity.  Thus, there is no visual evidence at the present time of exactly where waste handling/disposal took place or of the physical dimensions of the areas involved.”  [PDF 14]

On July 18, 2006, the MPCA wrote: “MPCA staff have determined that 3M conducted analytical testing of the 3M plant effluent discharge on several occasions during the period of January-March 2001, pursuant to a 3M project called ‘Fluorochemical Characterization of Facility Wastewaters but did not submit that analytical data, as requested by the MPCA and required by Federal and State rules.”  The letter goes on to say: “The omission of effluent data submitted by 3M, although specifically requested by MPCA staff, is particularly notable since the omitted January-March 2001 PFC 3M plant effluent data demonstrates that significantly higher concentrations of PFCs were actually being discharged to the river from the plant versus the data provided to the MPCA in the February 2002 NPDES/SDS permit application.  Based on the recently acquired January-March 2001 PFC effluent data MPCA staff calculate the average total of PFC compounds in the 3M plant effluent discharged was 4409 ppb, whereas the data submitted in the 2002 NPDES permit application calculates a significantly lower total PFC compounds discharged at 582 ppb.”  [PDF 20].

3M Did Not Use Acceptable Practices to Dispose of this Waste

3M claims that its disposal practices were acceptable for the times.  Not so:

The Forever Chemical is Now Polluting Our Blood

This indestructible Forever Chemical is now everywhere.  All of us have PFCs in our blood, and they come from 3M’s manufacturing process.  When you drink water or eat fish that contains PFCs, the chemicals bind to the proteins in your blood.

Polar bears in the arctic have it, too.  The Inuit have it.  Even eaglets have it because the mother eagle scoops up fish—and fish have PFCs—and feeds it to her baby.  The penguins in Antarctica have it as well. It is everywhere, and we can’t get rid of it. 

As it turns out, there are a few ways to get PFCs out of the human body.  The most effective way for PFCs to leave the body is when a mother breastfeeds her baby—the baby ends up as the repository for the chemical.

3M Lied to Customers About PFCs

3M didn’t just hide the dangers of these chemicals from the public and the government.  It hid the dangers of these chemicals from customers.

For a few months in 1997, 3M gave DuPont a Material Safety Data Sheet with this label: 

“CANCER:  WARNING:  Contains a chemical which can cause cancer (citing 1983 and 1993 joint studies by DuPont and 3M.” [PDF 46]

But for decades it sold the product without the warning and kept selling it without the warning label until the product was eventually phased out.

3M sold the chemicals to a company that used them in firefighting foam.  It told that company the chemicals are biodegradable.  [PDF 21]  But the chemicals are not biodegradable.  And 3M knew since at least the 1950s the chemicals weren’t biodegradable.

3M also knew that it was misleading its customers.  A few months after the company sent 3M the letter, a 3M employee wrote: “I don’t think it is in 3M’s long-term interest to perpetrate the myth that these fluorochemical surfacants are biodegradable.”  He added: “If 3M wants to continue to sell and use fluorochemical surfacants…, I believe that 3M has to accurately describe the environmental properties of these chemicals.”  [PDF 22]

Three Absolute Truths in this Litigation

We know this for sure about this lawsuit:

  1. 3M made these chemicals.
  2. They are in our water and wildlife and in our blood, and liver, and bodies.
  3. 3M put them there.

PFCs Are Toxic to Human Beings and Wildlife

Study after study has shown PFCs to be toxic:

In summary, the world’s leading scientists agree these chemicals are dangerous.  Studies clearly show that consumption of these chemicals over certain levels may:

3M Has Engaged in Lies and Deception as it Relates to the Toxicity of PFCs and Cancer

Before manufacturing the chemical, 3M never determined the risk of PFCs to human beings.  Indeed, there is no evidence it ever tested it on animals. The 3M attitude was that it is much more profitable not to know things when it comes to these chemicals.

As time went on, however, 3M had difficulty in maintaining its ignorance.  It then began a campaign of lies and deception. 

3M Went So Far as to Pay a Medical Journal Editor to Influence Research on the Toxicity of PFCs

After 3M phased out these chemicals, it started lots of studies of them.  A 2009 document from 3M’s chief toxicologist explains that the purpose of the studies is create “defensive barriers to litigation.”  [PDF 37]  In other words, to head off lawsuits.

3M went to great lengths to ensure that scientific papers were not published with information “contrary to 3M’s business interests.”  It worked to “command the science” concerning the risks posed by these chemicals.  It hatched a plan to “work with industry groups to take the lead on defense of PFOA and science.”  [PDF 38]  3M provided “selective funding of outside research through 3M ‘grant’ money” in order to shape the science.  [PDF 39]  By funding research, 3M obtained the right to review and edit scientific papers before they were published and to exert control over when and whether results got published. 

Another way it “commanded the science” was through its relationship with Dr. John Giesy of the zoology department at Michigan State University.  As the editor of several scientific journals, Dr. Giesy played a key role in determining which studies were published about PFCs and which were rejected.  He reviewed about one-half of the studies of these chemicals by other scientists before they were published.  He held himself out to other scientists as “independent” when he edited or rejected their studies. But in truth, 3M paid Dr. Giesy at least $2 million.  In his timesheets, Dr. Giesy made sure “there was no paper trail to 3M.” [PDF 40]

Dr. Giesy shared confidential manuscripts of other scientists with 3M before they were published, rejected papers for publication that were critical of 3M, and even told 3M to “keep ‘bad’ papers out of the literature otherwise in litigation situations they can be a large obstacle to refute.” [PDF 47]  He told 3M he would “buy favors” from other scientists.  [PDF 41]

Dr. Purdy Blows the Whistle

In 1998, a committee of 3M scientists recommended that 3M notify the EPA that its chemicals were widely found in human blood.  A 3M executive (Charles Reich) overruled their recommendation.  [PDF 42]

By 1999, the jig was up. A 3M scientist, Dr. Richard Purdy, blew the whistle.  [PDF 43]  In March, 1999 he resigned from 3M and sent a copy of his resignation letter to the U.S. Environmental Protection Agency.  This is what his letter said:

In May, 1999—just a few weeks after the EPA received a copy of Dr. Purdy’s resignation letter—3M submitted to the EPA the information that Dr. Purdy said should have been submitted about PFCs being in the food chain.  The new filing was made by the same executive (Charles Reich) who just the year prior overruled the committee of 3M scientists who wanted to tell the EPA about the presence of 3M chemicals in human blood.

According to the New York Times, under pressure from the EPA, 3M announced the next year (2000) that it would phase out the production of most long-chain PFCs. [PDF 44]  In announcing the phase-out, 3M claimed that it discovered fluorochemicals in human blood in 1998.  [PDF 1]  But 3M knew that its chemicals were in human blood in 1975—23 years earlier—when the two scientists called 3M after finding it in blood banks.

After it announced the phaseout, 3M increased its production of some of these chemicals.  In its company newsletter, 3M bragged that its production of FC-98 in 2001—the year after the phaseout was announced—was more than 17,000 lbs.  “This represents nearly a 4-fold increase over historic levels.  Because of its high selling price per pound even relatively small production volumes are significant 3M sales.”  [PDF 45]

3M Failed the Good Neighbor Test and Must Follow the Pottery Barn Rule

If your kid hits a baseball into your neighbor’s window, you should pay for it.  If you back into your neighbor’s mailbox, you should pay for it.  In this case brought on behalf of the people of Minnesota, we are asking 3M to be a good neighbor too.  3M shouldn’t be allowed to pawn off the harm of its contamination of this Forever Chemical on the public or the next generation. It should follow the Pottery Barn Rule: “You break it, you pay for it.”