Daily Record Legal Affairs Writer//November 27, 2019
//Daily Record Legal Affairs Writer
//November 27, 2019
Two Garrett County towns filed federal lawsuits against 3M Co. Tuesday, joining a growing list of plaintiffs from across the country that allege chemicals manufactured by 3M and other companies have contaminated their drinking water.
The chemicals, perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS), have long been used as a component of foam used to put out aviation, marine and fuel fires, according to the lawsuits filed in U.S. District Court in Greenbelt by the towns of Grantsville and Mountain Lake Park.
PFOA and PFOS are “highly soluble in water, not easily biodegradable, and persistent in the environment,” according to the complaints, which said the chemicals are likely human carcinogens. The Environmental Protection Agency has issued drinking water health advisories for PFOA and PFOS.
Jonathan Novak, who represents the towns, called the chemicals a “sleeping giant” of which people are unaware.
“The gist of it is these chemicals are used all over the place in our everyday lives,” said Novak, of Fears & Nachawati in Dallas. “When they go into water, they don’t break down (and) as long as these chemicals have been used — which is, I believe, the ’60s — they’ve been building up in our water supplies.”
Grantsville and Mountain Lake Park join a growing number of plaintiffs filing suit against 3M and others in litigation currently being consolidated in federal court in South Carolina. As of Nov. 19 there were 130 plaintiffs, including the Eastern Shore town of Vienna, which sued earlier this year.
Novak said that his firm continues to speak with municipalities and water suppliers about joining the list but that some are reluctant to put their names on a lawsuit stating their water is contaminated.
“I understand a municipality saying, ‘We don’t want people to know our water is contaminated,’ but every water system is contaminated,” Novak said.
The lawsuits allege that the defendants, which include 3M, Chemguard Inc. and National Foam Inc., among others, knew or should have known by the early 1980s that PFOA and PFOS were toxic and, when sprayed in the open, could mix easily with groundwater.
“By the early 1980s, the industry suspected a correlation between PFOS exposure and human health effects,” the complaints allege.
Despite this alleged knowledge, the defendants “negligently and carelessly” continued to manufacture and supply the chemicals in firefighting foam, instructed users to wash the foam into soil and failed to warn of the dangers, according to the complaints.
The lawsuits allege strict products liability, public and private nuisance, trespass, negligence and civil conspiracy.
PFOA and PFOS are two types of per- and polyfluoroalkyl substances (PFAS), a class of chemicals developed in the 1940s, according to 3M. Those currently manufactured and used by 3M “have been tested and assessed to assure their safety for intended uses,” the company’s website states.
3M announced a series of company initiatives in September related to PFAS “demonstrating the company’s longstanding commitment to environmental stewardship,” but it noted that “the weight of scientific evidence does not establish that PFAS cause any adverse human health effects at current or past levels typically found in the environment,” according to a news release.
Novak said 3M and DuPont, another historic manufacturer, “are fundamentally disagreeing with the dangerous nature of these chemicals.”
In a statement Wednesday, 3M said it had “acted responsibly in connection with products containing PFAS and will vigorously defend its environmental stewardship.”
Novak said that the EPA is currently determining what level of the chemicals it will consider dangerous and that water suppliers will then be on the hook for compliance. The chemicals can be removed with what is, essentially, “a very high-end Brita filter,” Novak said, but a filtration system can cost around $25 million to build.
“Not only is there the health risk, but also municipalities and water suppliers are going to face incredible liability in their own area and some form of an injunction saying the EPA requires you to remove this, so remove it,” he said.
The cases are The Town of Grantsville, Maryland v. 3M Company et al., 8:19-cv-03414, and The Town of Mountain Lake Park, Maryland v. 3M Company et al., 8:19-cv-03415.
Maryland Attorney General Brian E. Frosh joined a group of attorneys general earlier this year in asking Congress to pass legislation to aid states in addressing the public health crisis created by “forever chemicals” such as PFOA and PFOS. The letter to legislators requested regulatory action and funding for local jurisdictions with contaminated water.T