Nessel targets 3M as documents indicate firm knew of PFAS harms for decades
State Attorney General Dana Nessel is targeting chemical companies believed responsible for the creation and use of per- and polyfluoroalkyl substances, the "forever chemicals" threatening Michigan’s natural resources.
Among those companies that may face litigation is 3M, a Minnesota-based company whose internal documents indicate its officials knew about the potential harms of PFAS dating back decades.
Evidence obtained during the Minnesota Attorney General Office’s pursuit of legal claims against 3M opens a window into the company’s efforts to downplay concerns about PFAS. Internal memos from the company reveal concerns were raised repeatedly about the product both inside and outside 3M with little to no redress.
The 3M documents, obtained Thursday by The Detroit News through a public records request to the Minnesota Attorney General’s office, were first reported by the Detroit Free Press.
Michigan officials have been working to identify areas of PFAS contamination since 2016. In the past year and a half, the state has found 49 sites throughout the state where testing has shown elevated levels of PFAS, a class of chemicals used for decades in firefighting foam, tanneries, metal platers, Scotchgard and Teflon.
Scientists have shown associations between PFAS exposure and health risks such as thyroid disease, increased cholesterol levels and kidney and testicular cancers.
Nessel on Thursday announced her office sent out a request for bids to hire special assistant attorneys general who could “determine whether to pursue additional tort or other common-law-based causes of action” against firms that created or used the chemical.
“We intend to be as aggressive as possible,” she said. “You can absolutely expect to see something in regard to litigation against 3M and some of the other chemical manufacturers and you’re going to see it very soon.”
The company already is involved as a third-party defendant in litigation between the state of Michigan and Wolverine Worldwide, a shoe manufacturer north of Grand Rapids that used 3M chemicals on shoe products, some of which became scraps left at area dumpsites. Wolverine alleged in its court filing that 3M withheld key information about the dangers of PFAS.
In July, Republican former Gov. Rick Snyder asked GOP former Attorney General Bill Schuette to investigate suing 3M, but Schuette failed to do so before the end of his term.
Now Nessel said those responsible for the contamination will “pay for their greed.”
“Our state will spend hundreds of millions of dollars addressing these problems — costs that should not be borne by the people who live, work and play here,” said Nessel, who also issued requests for attorneys to handle civil litigation related to the state’s opioid crisis.
The tussle in Minnesota
It is not the global company’s first dust-up with a state attorney general ruffled by its environmental practices.
Last year, 3M agreed to pay the state of Minnesota $850 million to settle a lawsuit that alleged the company contaminated groundwater and damaged natural resources while disposing of chemicals.
Among the most compelling of the documents the Minnesota Attorney General's office turned up in its inquest was a 1999 letter of resignation from 3M scientist Rich Purdy, who expressed frustration with 3M's response to his concerns about the presence of PFOS in water mammals and eaglets. PFOS is one of many types of PFAS compounds.
"I have continually met roadblocks, delays, and indecision," Purdy wrote. "For weeks on end I have received assurances that my samples would be analyzed soon — never to see results."
The concerns of Purdy and others at 3M are significant because studies on fluorochemicals at that time were largely performed by the industry itself, said Rainer Lohmann, who started the University of Rhode Island's Superfund Research Center, which focuses on the sources, transport, exposure and effects of PFAS.
"If they were not published, the public at large couldn’t know," Rainer said of company research. "I think it's safe to say had 3M forwarded those early studies to the EPA things might have turned out differently.”
3M produced or used PFAS at manufacturing plants in Alabama, Minnesota, Illinois, Belgium and Germany.
It announced plans to phase out PFOS and PFOA, two PFAS substances whose risks are now best understood, in the late 1990s. In 2006, 3M reached a $1.5 million settlement with the EPA for 244 separate counts of alleged reporting violations of the Toxic Substances Control Act.
Because health and wellness are priorities for 3M, the company works with regulators to develop "thoughtful regulation" around PFAS and has released "thousands of documents in the public domain, including hundreds of studies conducted by 3M," the company said in a statement Thursday.
"The small set of documents from the Minnesota litigation portrays an incomplete and misleading story that distorts the full record regarding 3M’s actions with respect to PFOA and PFOS, as well as who we are as a company," the statement said.
As early as 1975, a doctor at the University of Florida College of Medicine called 3M to inquire about potential ties between fluorocarbon carboxylic acids in the blood streams of people tested in New York and Texas and potential links to Teflon and Scotchgard, according to a memo shared among 3M employees.
One worker told his colleagues that he pleaded "ignorance” when the doctor called, but “adopted a position of scientific curiosity” and planned to connect one of the researchers involved in the New York and Texas studies with a 3M researcher to “keep scientists talking to scientists.”
“On the positive side — if it is confirmed to our satisfaction that everybody is going around with fluorocarbon surfactants in their bloodstreams with no apparent ill-effects, are there some medical possibilities that would bear looking into?” the employee wrote.
Three years later, in 1978, another memo noted that testing done on rats with three fluorochemicals revealed that the substances were toxic. But the results weren't reported to the U.S. Environmental Protection Agency because the toxicity “does not constitute a substantial risk," according to the May 10, 1978 memo.
The next year, another employee suggested chronic testing on rats to determine the potential for “long term (carcinogenic) effects” of the chemicals.
In 1981, “25 women of childbearing potential” were reassigned to a different plant to avoid exposure to fluorochemicals after 3M testing showed the chemicals affected eye development in rat fetuses. The move was made “as a precautionary step pending further tests,” a draft press statement read.
In 1988, DuPont Company officials voiced concerns to 3M regarding whether, under DuPont's own policy, they should be warning employees that PFOA is “a carcinogen in animals.”
Medical consultants contracted by 3M reassured leaders that the increased incidence in tumors found in test rats exposed to the chemical wasn’t considered “to be significant in regard to the risk assessment for humans.”
That same year, an Oakland, California, fire protection equipment company criticized 3M executives for falsely representing that their aqueous firefighting foam, AFFF, was biodegradable.
In its letter to 3M, Boots & Coots Fire & Protective Equipment said it was informed by a client that 3M’s firefighting foam was not biodegradable, a fact the client learned directly from a 3M scientist. After the disclosure, the Sacramento district office of the Corps of Engineers required Boots & Coots employees to don safety apparel while refilling foam tanks with a “a dangerous harmful liquid.”
“The ramifications of this disclosure may be felt at other job-sites controlled by the corps of engineers, Sacramento office,” the company wrote. “In addition, they may decide to forward this data to other corps of engineers offices.”
Six months after the Boots & Coots letter, scientist Eric Reiner requested the testing of AFFF’s biodegradability, noting that the company should not “perpetuate the myth” that the substances were biodegradable.
“It is probable that this misconception will eventually be discovered, and when that happens, 3M will likely be embarrassed, and we and our customers may be fined and forced to immediately withdraw products form the market,” Reiner wrote.
An 'insidious pollutant'
Eleven years later, scientist Purdy submitted his resignation in a fiery letter that berated the company for its handling of the risks associated with PFOS.
Purdy called PFOS “the most insidious pollutant since PCB,” noting that the chemical is toxic to wildlife, doesn’t break down and seems to find its ultimate home in plants and animals instead of the soil.
“This chemical is more stable than many rocks,” Purdy said.
A risk assessment Purdy performed found a more than 100% probability of PFOS’s harm to sea mammals and consistently increasing accumulation in the food chain, he wrote in his letter. The scientist said he found PFOS in the blood of eaglets whose sole source of food had been fish in area lakes.
The company waited too long to tell customers and the EPA about the full ramifications of PFOS, Purdy said. Further, employees were told not to write down their discoveries or discuss them in email because of the risk of the documents becoming public during the legal discovery process.
“We knew before May of 1998, yet 3M did not start telling customers until January of 1999,” he wrote. “I felt guilty about this and told customers I personally knew earlier.”
An undated, author-less report in documents obtained from the Minnesota Attorney General noted that 3M started monitoring employees involved in producing PFOA, the chemical used in Teflon, in 1976. The company began testing specifically for PFOA and PFOS levels in the mid-1990s as new equipment to measure the chemical was introduced.