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.
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.
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:
- From the beginning, 3M focused on shirking responsibility. A 1961 internal 3M memo shows that “various methods were discussed on how to protect our company from legal action resulting from the pollution of the groundwater.” [PDF 9]
- When state regulators came to inspect its Woodbury dump site in 1963, the company showed regulators its lined pits but did not show them the unlined pits it covered over. As this memo shows: “It was not clearly stated to the officials that other unlined trenches had been used in the area, filled with wet scrap and then back-filled.” [PDF 10]
- In 1967, a 3M document points out that the PFCs dumped in Woodbury polluted a farmer’s well ¾ of a mile away from the dump site. [PDF 11] 3M knew that “the chemically contaminated ground-water is objectionable and may be a health hazard.” It knew that “the organic matter had a residual health effect and it is not known how much of this material could be consumed by an individual before it becomes a health problem.” [PDF 12] But when it prepared a report about the contamination, it failed to mention that PFC waste had been dumped at the site.
- In 1981 the Minnesota Pollution Control Agency received an anonymous complaint that 3M dumped chemicals at its Chemolite plant from 1950-1955. [PDF 13] The agency asked 3M to come clean about what it dumped, how much it dumped, and for how long.
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]
- There is no dispute that 3M dumped its PFC waste in Oakdale. Yet, in 1979, 3M said that “The history of the use of this site is very vague…To the best of our knowledge the site was used prior to 1960 but it is difficult to pinpoint the exact period of usage.” [PDF 15]
- In 1978 an Oakdale resident complained of reddish-brown waste at an abandoned nearby dump site. The State asked 3M for information about the wastes that were dumped. The company disclosed nothing about PFCs.
- In 1980 a former 3M employee provided a tip to the State that 3M had disposed of waste in two different locations at the Oakdale dump site. In response to an inquiry by the State, 3M admitted it disposed of waste in a previously undisclosed location but omitted any mention of PFCs.
- In 1992 3M claimed to have found another burial site in Woodbury and acknowledged: “If this is true it would be contrary to our statement to the state that township and 3M wastes were always segregated.” [PDF 16]
- In 2003 and 2004, the MPCA repeatedly asked 3M to disclose when it began to produce PFCs at its Chemolite plant in Cottage Grove. 3M repeatedly told the agency that it began to produce PFCs in Cottage Grove in 1976. [PDF 17, PDF 18, PDF 19] In fact, 3M started making PFCs at that location in the 1950s—more than two decades earlier.
- In 2002 3M filed an application to renew its permit at the Chemolite plant. 3M told the State for the first time that its wastewater contained some PFCs. It made this initial disclosure as it was phasing out the production of these chemicals. But 3M’s permit application was incomplete and misleading. In 2006—four years after 3M filed the application—the Minnesota Pollution Control Agency discovered that 3M had underreported the maximum amount of PFOA and PFOS discharged into the Mississippi River by a factor of ten. [PDF 20]
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:
- 3M’s internal experts recommended in the early 1960s that the company incinerate these chemicals, but it didn’t do so for a decade.
- The company knew that unlined pits meant the chemicals would seep into the ground. But it tossed the chemicals into unlined pits anyway.
- The company knew its lined pits were ineffective, but it kept dumping into those pits anyway.
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:
- 3M made these chemicals.
- They are in our water and wildlife and in our blood, and liver, and bodies.
- 3M put them there.
PFCs Are Toxic to Human Beings and Wildlife
Study after study has shown PFCs to be toxic:
- Throughout the 1950s, 3M’s own animal studies repeatedly found that PFCs are “toxic.”
- By 1950, studies showed the chemicals killed mice. Also, early publications on PFCs explained that PFCs are not subject to biologic reactions, which suggested that PFCs didn’t degrade in the environment.
- In 1956, a Stanford University study used PFCs manufactured by 3M to conclude that PFCs bind to proteins in human blood.
- Chemical Concentrates Corporation (“CCC”) purchased PFCs from 3M to make firefighting foam (called “light water”). In 1970, CCC complained to 3M that the chemicals caused fish to drown. It told 3M that the toxicity was so bad that CCC had to abandon a test of the product on fish and marine life. [PDF 23]
- A 1973 study showed that PFCs collect in the liver and remain there for life.
- In 1975, two independent scientists—Dr. Warren Guy and Dr. Donald Taves—found that fluorochemicals were in human blood in blood banks as far away as Texas and New York. [PDF 24, PDF 25] They called 3M to say they thought its products may be to blame. 3M “plead ignorance.” As 3M’s memo from the time shows: “We plead ignorance but advised him that ‘Scotchgard’ was a polymeric material not a F.C. acid.” Scotchgard was made with fluorochemicals.
- Soon thereafter, 3M privately replicated the studies and confirmed that blood samples from blood banks contained fluorochemicals (PFOS).
- 3M did not publicly disclose that fluorochemicals are in the blood of the general population. 3M knew of a study noting “that the major part of organic fluorine in human plasma is a widespread environmental contaminant is consistent with our findings.” [PDF 26, PDF 28]
- In 1981 it took women of childbearing age out of its PFC production areas saying it was “necessary” so that “fetuses are protected even before a pregnancy is known to exist.”
- By 1978 3M was advised that the chemicals killed monkeys.
- By 1980 the company knew it caused abnormalities in pregnant rats.
- In 2012, the results of the C8 Panel were published. DuPont purchased PFCs from 3M and used them to make Teflon. People in West Virginia sued DuPont for the health damage caused by its disposal of the PFCs. As part of a settlement, the C8 Panel was created. The findings of toxicity were confirmed by the C8 Panel. The C8 Panel—which took seven years to complete—has been heralded as the largest study of the impact of a pollutant on human health ever undertaken. The C8 Panel researched the link between PFCs and cancer. The panel was comprised of three scientists chosen by DuPont and some victims of PFC contamination. The Panel found a probable link between PFCs and cancer, colitis, and thyroid disease.
- In 2016, the National Toxicology Program of the United States Department of Health and Human Services concluded that these chemicals (PFOA and PFOS) are “presumed to be an immune hazard to humans” based on a “consistent pattern of findings” of adverse immune effects in people.
- In 2016, the U.S. Environmental Protection Agency issued an advisory to public health agencies encouraging them to lower the limits for how much water with PFCs is safe to drink. Its advisory cautioned that studies indicate that exposure to these chemicals “over certain levels may result in adverse health effect, including developmental effects to fetuses during pregnancy or to breastfed infants (e.g., low birth weight, accelerated puberty, skeletal variations), cancer (e.g. testicular, kidney), liver effects (e.g., tissue damage), immune effects (e.g., antibody production and immunity), thyroid effects and other effects (e.g., cholesterol changes).” [PDF 27]
In summary, the world’s leading scientists agree these chemicals are dangerous. Studies clearly show that consumption of these chemicals over certain levels may:
- Increase the risk of cancer (kidney, testicular)
- Affect growth and learning in children
- Lead to thyroid disease
- Lower a women’s chance of getting pregnant
- Cause liver damage
- Suppress the immune system.
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.
- In 1977, 3M instructed its employees not to disclose that it was the source of the fluorine contamination in human plasma. The memo states “3M lawyers urged CAL [3M’s Central Analytical Lab] not to release the true identity (PFOS) of the OF [organic fluorine] compound.” [PDF 28]
- 3M decided not to tell individuals, customers, or regulatory bodies about the presence of its chemicals in human blood except “upon request.” [PDF 29]
- 3M did not inform the U.S. Environmental Agency (“EPA”) that its chemicals were in human blood for more than 20 years (1998).
- Under a federal law called the Toxic Substances Control Act, chemical companies are required to immediately notify the U.S. Environmental Protection Agency of information that reasonably supports the conclusion that their product presents a substantial risk of injury to health or the environment. In 2000, 3M admitted that it failed to report studies about these chemicals, sometimes for decades. [PDF 30, PDF 31] Even a quick glance at their titles shows the withheld studies were about PFCs. [PDF 32]
- In 2006 the EPA fined 3M $1.5 million for withholding studies about the toxicity of these chemicals and others. [PDF 33]
- By 1976, 3M knew that these chemicals were in the blood of workers who handled them at higher levels than the general population.
- In 1979 a 3M scientist said that he “was reminded about the lack of chronic toxicity data on 3M Fluorochemicals” and that it was “paramount to begin an assessment of the potential (if any) long term (carcinogenic) effects of these compounds which are known to persist for a long time in the body and thereby give long term chronic exposure.” [PDF 34]
- In 1996, a doctor (Dr. Jung) in 3M’s German subsidiary (Dyneon) said 3M should classify PFOA as a Class 3 carcinogen in Europe, noting studies that show tumors in liver, testicular and pancreatic tests of animals. [PDF 35] 3M didn’t.
- In 1993 3M knew that “There is some preliminary evidence that in lactating goats PFOS is transferred to milk. It is likely that lactating human females would transfer PFOS to milk.” [PDF 36] But 3M didn’t publish this study or follow-up with an analysis of human breast milk
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:
- He expressed “profound disappointment in 3M’s handling of the environmental risks associated with the manufacture and use” of these chemicals.
- PFCs are the “most insidious pollutant since PCB. It is probably more damaging than PCB because it does not degrade; whereas PCB does; it is more toxic to wildlife.”
- “I have worked within the system to learn more about this chemical and to make the company aware of the dangers associated with its continued use. But I have continually met roadblocks, delays, and indecision.”
- “For more than twenty years 3M’s ecotoxicologists have urged the company to allow testing to perform an ecological risk assessment on PFOS and similar chemicals. Since I have been assigned to the problem a year ago, the company has continued its hesitancy.”
- “There is tremendous concern within EPA, the country, and the world about persistent bioaccumulative chemicals such as PFOS…We found PFOS in the blood of eaglets—eaglets still young enough that their only food consisted of fish caught in remote lakes by their parents. This finding indicates a widespread environmental contamination and food chain transfer and probable bioaccumulation and bio-magnification. This is a very significant finding that the [federal] reporting rule was created to collect. 3M chose to report simply that PFOS had been found in the blood of animals, which is true but omits the most significant information.”
- “3M waited too long to tell customers about the widespread dispersal of PFOS in people and in the environment.”
- “3M continues to make and sell these chemicals” despite their risk.
- “3M told those of us working on the fluorochemical project not to write down our thoughts or have email discussions on issues because of how our speculation could be viewed in a legal discovery process.”
- “For me, it is unethical to be concerned with markets, legal defensibility and image over environmental safety.” [PDF 43]
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.”