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BACKGROUND OF THE 3M LAWSUIT

In 2010, the State of Minnesota filed a lawsuit against 3M Company seeking payment for damage caused to the State’s natural resources as a result of the company’s disposal of perfluorochemicals in Minnesota.  [PDF 1] In February, 2018, the lawsuit was settled. [PDF 2] 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. [PDF 3]  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. [PDF 3] It was called the “Wildest Hellcat” or the “Devil’s Poison.” [PDF 3]  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. [PDF 3] This lawsuit was about fluorochemicals. [PDF 1]

Fluorochemicals have certain unique properties. They repel water. [PDF 3] They repel oil. [PDF 3]  They can withstand temperatures of up to 1,700 degrees. [PDF 4]  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. [PDF 5]  Fluorochemicals are man-made chemicals. They are sometimes called PFCs.

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

3M used PFCs to make Scotchgard. [PDF 3]  Carpets sprayed with Scotchgard would repel stains. Not only were the stains repelled, but the chemicals did not degrade.  [PDF 4

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. [PDF 3]  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 6]

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

3M also sold these chemicals to other companies to make fire-fighting foam to put out fires—because the chemicals can stand up to such high heat. [PDF 4]

3M Disposes of Waste in Minnesota

It is believed that 3M dumped millions of pounds of waste from its PFC manufacturing process in the ground and water in the east metropolitan area of the Twin Cities over several decades. 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 Alabama manufacturing facility back to Minnesota. [PDF 7

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

In 1960, 3M planned a new dump site in Woodbury. [PDF 8] It had the land for the dump site put under someone else’s name to “minimize publicity.” [PDF 8]  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.” [PDF 8] It recognized that “eventual pollution of adjacent domestic wells will depend on time, geologic conditions and rate of wet waste dumping.” But it still dumped the waste into unlined trenches.[PDF 8]

By 1962, 3M knew that “some of our liquid waste chemicals have reached 75’ below ground within about one year of operation” in Woodbury. [PDF 9]

3M knew that waste it dumped in Cottage Grove was seeping into the Jordan aquifer, the underground river that provides the metropolitan area with much of its drinking water. [PDF 10]  It also knew that its waste would seep into the St. Peter aquifer, one used to supply drinking water for wells. [PDF 8] It admitted that “from a geographical standpoint this area would not be ideal” but that “we feel it should satisfy our demands.” [PDF 8]

3M also dumped over 100,000 pounds of waste from its PFC manufacturing process per year into the Mississippi River.  [PDF 11

3M knew that other companies incinerated their wet waste. [PDF 9, PDF 12]  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 13] 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.”  [PDF 14]

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 PFC waste. This was two decades after it started to manufacture it and one decade after being told to incinerate the PFC waste.

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 15] 3M recorded the disposal of tars on a Chemolite Hazardous Waste Manifest and listed the EPA Code D002—which means corrosive. [PDF 16]

The Extent and Severity of the Pollution

3M had a goal: to “continue to maintain regulatory approval to sell PFCs as long and as broadly as we can.” [PDF 17]

3M engaged in a long concealment of its extensive pollution of the water and of 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. [PDF 18]  Indeed, a 1998 memo advises an employee to “clean out computer of all electronic data” relating to these chemicals. [PDF 19] But some documents still exist which tell the tale:

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.

Statements to 3M Customers About PFCs

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 studies conducted jointly by 3M and Dupont.”) [PDF 32]

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 companies that used them in firefighting foam. In a letter to 3M in 1988 one company wrote: “in all literature and documentation that is published by the major manufacturers of A.F.F.F concentrate, it is claimed that these products are biodegradable.” [PDF 33] But the chemicals are not biodegradable. And 3M knew since at least the 1950s the chemicals weren’t biodegradable. [PDF 34]  

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 35]

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:

See also Expert Report of Dr. Jamie DeWitt [PDF 54]

3M and The Toxicity of PFCs and Diseases

Before manufacturing the chemical, 3M never determined the risk of PFCs to human beings. Indeed, there is no evidence it tested it on animals before manufacturing began.

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

*   *   *

As noted above, in 1976, 3M knew that PFCs were in the blood of its production workers who handled them at higher levels than the general population. [PDF 61]

3M tested the blood of workers who hadn’t handled these chemicals for 15-20 years, and they were still in their blood. [PDF 62]

3M published a few studies claiming the PFCs had no adverse health effects on its workers. But Dr. Philippe Grandjean, a world-renowned expert on these chemicals, provided an expert report stating that other studies show that 3M’s PFC production workers had higher incidences of various diseases—diseases that have been shown to be linked to PFC consumption [PDF 47]:

3M’s Efforts to “Command the Science”

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 73] 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 74] 3M provided “selective funding of outside research through 3M ‘grant’ money” in order to shape the science. [PDF 75] 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.

3M had a 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. [PDF 76] 3M paid Dr. Giesy at least $2 million. [PDF 77, PDF 78] In his timesheets, Dr. Giesy made sure “there was no paper trail to 3M.” [PDF 76]

On at least one or more occasions, Dr. Giesy shared confidential manuscripts of other scientists with 3M before they were published, rejected papers for publication that were critical of PFCs, and even advised 3M to “keep ‘bad’ papers out of the literature otherwise in litigation situations they can be a large obstacle to refute.” [PDF 79] In one memo, 3M described Dr. Giesy’s “need to ‘buy favors.’” [PDF 80]

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 81]

By 1999, the jig was up. A 3M scientist, Dr. Richard Purdy, blew the whistle. [PDF 82] 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. [PDF 83]  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 84] In announcing the phase-out, 3M claimed that it discovered fluorochemicals in human blood in 1998. [PDF 6] 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. [PDF 41, PDF 42

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 85]

The Good Neighbor Test

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 the State asked 3M to be a good neighbor too and pay for the harm caused to Minnesota’s natural resources by its PFCs.

Click here to read the Settlement Agreement

Click here to see the State's Exhibit List and Exhibits.