May 23, 2023

Lawsuit: ‘Forever Chemical’ Makers Hid Health Risks

Plaintiffs representing millions of people allege harm from PFAS contamination stemming from toxic firefighting foam

Chemical giants DuPont and Chemours announced Friday morning that they will be entering into an $1.185 billion agreement with public water systems serving the vast majority of the U.S. over alleged contamination with "forever chemicals." 3M indicated on Sunday that it is also working towards a settlement.

These companies are among the dozens of defendants named in an expansive lawsuit that is shedding light on what industry knew, and when, about the dangers of a class of chemicals used since the 1940s and now linked to a host of serious health and environmental risks. The compounds—PFAS, or per- and polyfluorinated substances—are called "forever chemicals" because of their ability to accumulate in water, soil, wildlife, and humans for many, many years.

This case focuses on their use in firefighting foam, but it has far broader implications in part because these chemicals are widely used in many other products, ranging from cookware to raincoats to food packaging. And evidence in the lawsuit, including some not previously publicly revealed, is particularly relevant now, as communities across the country are gearing up to comply with proposed federal limits on PFAS in drinking water—which will pose logistical hurdles and enormous, ongoing costs.

The firefighting foam at the center of the current lawsuit, called aqueous film-forming foam (AFFF), isn't the stuff that comes out of typical home fire extinguishers. It's a substance developed by chemical giant 3M specifically to put out gasoline-based fires. Historically, its key ingredients have been PFAS that were the basis of Scotchgard, also developed by 3M, and Teflon, which was developed by DuPont.

The U.S. Navy was the first to use AFFF, finding the new foam effective for putting out jet-fuel-based fires on aircraft carriers. But its use gradually spread to other types of military bases, then to commercial and private airports, and then to fire departments big and small. AFFF was used nationally and continuously for many decades before its toxicity became widely understood.

Firefighting foam is typically deployed in vast quantities, and it has likewise polluted the environment on a large scale. During real jet-fuel fires at airports, military bases, or firehouses—or during training exercises—firefighters spray foam that then flows into the surrounding soil and often seeps into groundwater.

A Government Accountability Office report from 2021 estimates that as many as 700 military sites may have contaminated the surrounding environment with firefighting foam—and this total does not include private or commercial airports, or firehouses.

"Forever chemicals" don't rinse away, and they don't break down in nature. They accumulate over time wherever they are—including the human body. And studies have linked them to certain cancers, reduced immune response, obesity, and infertility.

As scientific research has developed about the health hazards of these chemicals, some states have begun to regularly test and limit PFAS in drinking water. The Environmental Protection Agency announced in March that it was proposing its first federal limits on a handful of PFAS chemicals in drinking water—including perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA), the two main foam ingredients at issue in this case. The Department of Defense announced in January that it would be phasing out its use of AFFF in favor of foam that does not contain PFAS, and the Federal Aviation Administration is helping airports transition to a safer alternative after requiring them to use AFFF for decades.

But in many places, the damage is already done, and cleanup will be an ongoing challenge. The EPA estimates that as many as 94 million Americans could be currently drinking water contaminated with PFAS at levels exceeding its proposed limits. This widespread pollution comes not only from AFFF but also from the manufacture and disposal of the many other consumer products that now contain PFAS. But experts say that firefighting foam is a leading cause of the contamination of the nation's water supply.

If the EPA's proposal is finalized, public water utilities across the country will be required to regularly test for these chemicals, and reduce the levels through dilution and filtration as necessary. The American Water Works Association, a trade group, estimates the cost at $3.8 billion a year.

One major goal of this court case, plaintiffs’ attorneys say, is to help water utilities recoup some of the money that will be required for this immense overhaul of the nation's water systems—to shift the cost of cleanup from the victims of the pollution to the polluters themselves.

"While this is a significant public health crisis, we don't believe that public resources should be committed to fixing it, when there are big corporations that profited handsomely from doing this," says Ken Sansone, an attorney at SL Environmental Law Group, a firm representing more than 100 plaintiffs in the litigation.

Photo: Jake May/AP Photo: Jake May/AP

The number of plaintiffs involved in this litigation changes every day, but as of this writing, there are well over 4,000. These include at least 15 states—including California, Pennsylvania, and New York—that want to make the chemical manufacturers pay for the contamination of their natural resources, like lakes and rivers and wildlife and fish.

There are small towns like Sturgis, Ky., big counties like Miami-Dade in Florida, and cities like Philadelphia and Montgomery, Ala., all suing over the contamination of their public drinking water sources.

The lawsuit also includes thousands of individuals who have filed personal injury lawsuits, alleging that PFAS caused their diseases, or death to their loved ones, from contaminated water they drank over decades. Some of those individuals are firefighters, who say their exposure to PFAS at work caused them to get sick. Many people are asking for money to pay for home water treatment, medical treatment, or ongoing medical monitoring.

Defendants in the case include dozens of companies that plaintiffs allege are the original manufacturers of the chemicals that make up AFFF. Other companies that made foam from these chemicals or sold or distributed the foam are also included in the suit.

In 2018, so many lawsuits had been filed that were so similar in nature that a panel of federal judges decided to combine them all into one "multi-district litigation" in order to consolidate processes such as pre-trial evidence discovery.

It's the first case in this multi-district litigation that starts this month, focusing on the contamination of public drinking water wells in the small coastal city of Stuart, Fla., from AFFF used by the town's fire department.

Sean Lynch, communications manager for 3M, told CR, "As the science and technology of PFAS, societal and regulatory expectations, and our expectations of ourselves have evolved, so has how we manage PFAS." He added, "We have and will continue to take action consistent with our values—including remediating PFAS, investing in water treatment, and collaborating with communities."

Neither DuPont nor Chemours, nor their defense attorneys, responded to CR's requests for comment.

Source: Court document Source: Court document

A study out this week from the University of California San Francisco examines previously secret documents in a chemical industry archive, and reveals the great lengths PFAS manufacturers went to over the decades to conceal what they knew about the chemicals’ hazards. The authors write that their findings show how "the chemical industry used the tactics of the tobacco industry to delay public awareness of the toxicity of PFAS and, in turn, delayed regulations governing their use." These newly revealed documents help to fill out the timeline of what the PFAS industry knew, and when.

The documents that the plaintiffs have submitted to the judge overseeing this firefighting foam trial add more detail still.

For instance, attorneys for some of the defendants argue that because AFFF had originally been created at the request of the U.S. military, manufacturers should be immune from liability for any damages it caused. In September 2022, though, federal judge Richard M. Gergel, in South Carolina, declined to rule that the "government contractor immunity defense" applies in all the cases, because the plaintiffs’ evidence in this case suggests that the manufacturers had explicitly hidden the risks of PFAS from its customers, including the government, for decades. Defendants can still raise the government contractor immunity defense at trial.

3M invented PFOS, the key ingredient in the first AFFF on the market. Gergel's opinion cited internal memos and scientific reports from 3M from as early as the 1970s showing that the company knew that PFOS was present in samples from blood banks. This indicated, as the judge underscored in his opinion, that the company knew half a century ago that "a chemical manufactured exclusively by 3M and utilized in the company's AFFF product" could "now apparently [be] found in the blood of the general population."

In 1975, according to an internal memo, two external scientists reached out to 3M to ask for help identifying a curious new chemical that they had found in blood samples. The scientists asked if 3M could be the source. A 3M staffer wrote to colleagues that, in response to the questions, 3M had "plead[ed] ignorance" and "adopted a position of scientific curiosity." A team of 3M researchers then wrote an internal company report confirming that the mysterious compound was in fact PFOS. But when the two scientists published their findings in a peer-reviewed journal, one of the 3M researchers published a rebuttal, attempting to discredit the findings that he and his colleagues had already privately confirmed.

In 1998, 3M finally revealed to the EPA that PFOS was in the blood of the general population. But internal documents show that it continued to withhold key information about what it knew about the risks posed by the chemicals.

For example, while the company assured the government and the public that this was not a threat to human health, 3M toxicologist John Butenhoff wrote a strongly worded internal memo urging the company to replace PFOS with a safer alternative. He wrote in a memo that "these compounds [are] VERY persistent and thus insidiously toxic."

In a separate document, Butenhoff calculated a "safe" level of PFOS in human blood at 1.05 parts per billion (ppb); meanwhile, 3M had already measured PFOS in the blood of the general population at about 30 ppb.

The company would go on to manufacture and sell PFOS for years.

Source: Court document Source: Court document

Internally, 3M conducted over a thousand studies about PFAS and their effects on animals and humans, starting in the 1970s, but documents and testimony in the lawsuit demonstrate that the company did not share its findings with the EPA—or with AFFF's biggest customer, the Pentagon.

An expert from the U.S. Naval Research Laboratory testified that the AFFF manufacturers treated their foam formulas as "proprietary information" and that he did not know until 2000 that 3M's foam contained PFOS.

The evidence also includes both a 3M advertising brochure from 1978 that called its firefighting foam "biodegradable" and an internal company memo a decade later in which 3M environmental specialist Eric Reiner wrote that it was not in 3M's best interest to "perpetuate the myth" that the foam is 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 from the market."

3M did stop manufacturing PFOS in the U.S. in 2000, and then phased it out globally by 2002. But, as Gergel described it in his written opinion, this was only "under pressure from the EPA"—and that pressure was only due to 3M's "belated disclosure," starting in 1998, of its internal research that it had been conducting for several decades. (When 3M left the market, other chemical manufacturers continued to make similar, and similarly toxic, AFFF.)

"Despite . . . 3M's legal duty to disclose to the government information about potential harm to human health and the environment caused by its products, 3M told no one outside the company of this finding for nearly a quarter century," Gergel wrote in his September 2022 opinion.

Gergel added that this has resulted in "a profound lack of knowledge of the government and general scientific community" and "the remarkable challenges that have been experienced in attempting to determine the long term health and environmental consequences of these previously unknown chemical compounds."

Although most of the evidence Gergel, the federal judge, cited in his opinion focuses on 3M, the original inventor of this class of chemicals, he also mentions some of the other defendants in the case that developed their own versions of the firefighting foam.

When 3M exited the market 20 years ago, a group of smaller companies that used a different chemical process to make their foams lobbied to the EPA that their products were safer because they did not contain PFOS or PFOA, according to the judge's opinion.

But court documents show that these manufacturers, too, were omitting key internal research. An executive at Kidde, one firefighting foam manufacturer, wrote in an internal memo that while his company's AFFF may not contain PFOS, it "will degrade in the environment" to produce PFOA, and that the only "question is how toxic" or "bioaccumulative" it would be.

Another Kidde executive wrote a memo in 2001 acknowledging that it was "common understanding" that their products "break down" into PFOA and other ultimately harmful chemicals. Yet the Fire Fighting Foam Coalition, the lobbying group representing AFFF manufacturers, was publicly declaring that the products "are not likely to be a source of PFOA in the environment."

Kidde filed for bankruptcy in May 2023, citing the costs of this litigation.

As late as 2008, according to the judge's opinion, internal emails show that two employees of an AFFF manufacturer acknowledged that the FFFC was making untrue claims about their foam's ingredients to the Defense Department and being "economical with the truth" toward the EPA.

Neither Kidde nor its defense attorney responded to CR's request for comment, nor did the industry trade group FFFC.

One of the attorneys advising the plaintiffs is Rob Bilott, a partner at the Taft law firm based in Cincinnati. Bilott brought a landmark case against DuPont over PFAS contamination of drinking water in West Virginia in the late 1990s (dramatized in the film "Dark Waters") and another against 3M for the same issue in Minnesota in the mid-2000s.

Bilott says that the evidence coming to light as a result of this multi-district litigation adds more details to the story of how PFAS manufacturers knowingly hid the scope and the severity of their health risks, and that he hopes it will help hold the polluters responsible.

"It's critically important to remember: These are man-made," Bilott says. "When you find these chemicals in the air, the water, the soil, and blood, they’re fingerprints back to the companies that made them. These are not naturally occurring chemicals, so when we find them, we know where they came from."

Editor's Note: This story has been updated to add new information about 3M's settlement talks that came in after publication. The story had previously stated that the trial was set to begin on June 5.

Lauren Kirchner

Lauren Kirchner is an investigative reporter on the special projects team at Consumer Reports. She has been with CR since 2022, covering product safety. She has previously reported on algorithmic bias, criminal justice, and housing for the Markup and ProPublica, and was a finalist for the Pulitzer Prize in Explanatory Reporting in 2017. Send her tips at [email protected] and follow her on Twitter @lkirchner.

Massive Court Case Suggests ‘Forever Chemical’ Manufacturers Hid Health Risks for Decades Massive Court Case Suggests ‘Forever Chemical’ Manufacturers Hid Health Risks for Decades VERY Editor's Note: