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Delaware sues 3M, others over PFAS firefighting foam

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PFAS AFFF Air Force 3M

Fire-retardant foam like this unintentionally released in an aircraft hangar at Travis Air Force Base in California in September 2013 is the subject of a new lawsuit in Delaware regarding PFAS contamination of soil and aquifers. | PHOTO COURTESY OF USAF/KEN WRIGHT

WILMINGTON – Delaware Attorney General Kathy Jennings sued 14 companies, including multinational conglomerate 3M Company, last week over their production of specialized firefighting foam that contained so-called “forever chemicals” that have allegedly leached into soils and aquifers here.

The First State becomes the latest in the nation to sue companies over aqueous film-forming foam (AFFF), a product widely used at airports and military bases. While water has long been used to extinguish fires, it is ineffective in some cases, including oil fires. Firefighting foams were first developed in 1902 and have long been used at airports where plane crashes would produce oil fires.

Training with the products also exposed the environment to their ingredients, which included per- and polyfluoroalkyl substances (PFAS), including perfluorooctanoic acid, or PFOA, and perfluorooctane sulfonic acid, PFOS, that virtually never break down and have been linked to higher risks of thyroid cancer and other health problems.

“A single firefighting event or training exercise may result in the release of thousands of gallons of foam solution laced with PFAS that then enter and contaminate the environment,” the lawsuit reports, noting that AFFF was long used at the New Castle County Airport and Dover Air Force Base.

The Delaware Department of Justice filed its case in the state’s Superior Court after reportedly conducting a detailed investigation over two years, including environmental sampling and forensic analysis as well as a review of corporate records.

The attorney general’s office has already successfully negotiated a $50 million settlement over PFAS products, including AFFF, from the trio of companies that emerged from the legacy of E. I. du Pont de Nemours and Company – DuPont, Chemours and Corteva. Those companies have committed more than $1.1 billion nationwide to resolve PFAS claims regarding drinking water.

The latest case was filed against 3M, Tyco Fire Products, Chemguard, Buckeye Fire Equipment, Arkema, BASF, Clariant, Archroma U.S., Dynax, AGC Chemicals Americas, Daikin America, ChemDesign Products, Chemicals Inc., and Deepwater Chemicals.

The state alleges that the defendants caused damage to Delaware’s environment and jeopardized residents’ health by introducing PFAS into rivers, streams, groundwater, soils, and wildlife. Each company designed, manufactured, marketed, distributed, supplied, and/or sold PFAS-based AFFF products and/or AFFF components that contain or break down into toxic components that, when used as intended, result in significant environmental contamination and pollution with PFAS. 

The lawsuit seeks monetary damages, including natural resource damages and costs to test, monitor, assess, and respond to contamination.

Delaware Attorney General Kathy Jennings

Delaware Attorney General Kathy Jennings has sued 3M and other fire retardant foam manufacturers over their alleged impact on the environment. | DBT PHOTO BY JACOB OWENS

“I don’t care who you are: if you harm Delaware and its people, we will hold you accountable,” Jennings said in a statement announcing the case. “3M and the other defendants knew the dangers that PFAS posed and they still chose profits over our neighborhoods and our children. Delawareans shouldn’t have to pay the costs of corporate greed, and we’re taking action to ensure that they won’t.”

The 61-page lawsuit details the extent of the issue with AFFF and the lengths that some of the defendants reportedly went to hide the dangers of PFAS from the public. It claims that corporate records show 3M was aware of dangers linked to PFAS products as early as the 1950s, with follow-up studies heightening the concern in humans by the 1970s.

Jennings’ office further charges that 3M intentionally misled the public and customers about the dangers of PFAS products, including paying a Canadian professor “millions of dollars for the purpose of influencing independent academic research” in support of PFAS and advising employees to not put their concerns into writing to avoid legal discovery disclosures.

It wasn’t until internal defectors notified the U.S. Environmental Protection Agency that 3M chose to stop using “forever chemicals” in its products around 2000 while also paying a $1.5 million fine for misleading the regulator.

Following the filing of Delaware’s lawsuit, 3M said in a statement that it will “continue to address PFAS litigation by defending itself in court or through negotiated resolutions, all as appropriate.”

“As the science and technology of PFAS, societal and regulatory expectations, and our expectations of ourselves have evolved, so has how we manage PFAS. We have and will continue to deliver on our commitments – including remediating PFAS, investing in water treatment, and collaborating with communities,” the company added.

Some of a potential settlement with 3M could be paid out of a $10.3 billion fund set up in June by the company to address a litany of lawsuits regarding public water contamination by PFAS substances.

Delaware is suing the other 12 companies on the basis they should have known the risks of their products because they would have likely had access to non-public information regarding the risks of PFAS through the Firefighting Foam Coalition, an industry association formed in 2001 to dispel the concerns of the EPA.

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