The city of Fullerton has joined a large Orange County lawsuit against the 3M Company, DuPont, and others. The suit was brought by the Orange County Water District (OCWD) and several Orange County cities and water districts alleging that these companies are responsible for water contamination from PFAS (see below) in the region’s groundwater and water systems. The lawsuit was filed December 1, 2020 by SL Environmental Law Group.
OCWD manages the Orange County Groundwater Basin and parts of the Santa Ana River, providing a water supply for more than 2.5 million residents in northern and central Orange County.
The lawsuit seeks damages and compensation “to address widespread contamination of surface water and groundwater within the Basin…to investigate, monitor, assess, evaluate, remediate, abate, or contain contamination…and to assure that the responsible parties – rather than the OCWD, [cities], or taxpayers – bear the cost of responding to and remediating contamination.”
One or more of Fullerton’s water wells have exceeded regulatory limits for PFAS.
What Are PFAS?
Polyfluoroalkyl substances or PFAS are a family of manmade chemical compounds that include PFOS (perfluorooctane sulfonate) and PFOA (perfluorooctane acid) that have been widely used for decades in industry and in the production of thousands of common household and commercial products, most notably Teflon, but many others.
These chemical compounds are known to have characteristics that cause extensive and persistent environmental contamination. They resist natural degradation and are difficult and costly to remove from soil and water.
Exposure to certain PFAS has been associated with several negative health outcomes in both humans and animals, including the following:
• Altered growth, learning, and behavior of infants and older children
• Lowering a woman’s chance of getting pregnant
• Interference with the body’s natural hormones
• Increased cholesterol levels
• Modulation of the immune system
• Increased risk of certain cancers
• Increased risk of ulcerative colitis
The main defendants in the lawsuit are the 3M Company, DuPont (and its various incarnations and spinoff companies including Corteva and Chemours), and DECRA Roofing Systems (located in Corona).
3M has operated a manufacturing facility in Corona since the 1940s that, according to the lawsuit, “is a source of PFAS that has impacted the Santa Ana River and the Basin.” At this facility, 3M manufactured roofing granules containing PFAS that they then sold to DECRA. In 2011 alone, more than 414 million pounds of these materials were manufactured by 3M at the Corona site.
“Runoff from DECRA’s Roofing Products contain PFAS and the disposal of these products has contributed to the contamination in Plaintiffs’ drinking water supplies,” the lawsuit alleges.
As a direct result of 3M and DECRA’s industrial practices, the lawsuit claims:
• Water from the Santa Ana River used for groundwater recharge has become contaminated with PFAS.
• Other surface water and groundwater resources within the Orange County Basin have become contaminated with PFAS
• Cities’ drinking water supply wells have become contaminated with PFAS.
The lawsuit does not name any specific local DuPont manufacturing facilities, but instead cites the company’s decades-long efforts to market and sell products containing PFAS (including in California), to hide these products’ toxicity from the public, and then to shield itself from liability through complex business reorganizations.
3M and DuPont Have Known PFAS Were Toxic for Decades
The issue of PFAS contamination across the United States has gained increasing public awareness in recent years, with the release of two feature films on the topic—a 2018 documentary called The Devil We Know, and a 2019 fact-based drama called Dark Waters (starring Mark Ruffalo), which follows the lawyer Robert Bilott’s efforts to expose PFAS contamination and obtain compensation for those impacted by it.
The lawsuit alleges that both DuPont and 3M have known about the dangers of PFAS for decades and have sought to hide these dangers from the public in an effort to continue manufacturing products that were highly profitable.
According to the lawsuit:
• In the 1950s, based on its own internal studies, 3M concluded that PFAS are “toxic.”
• 3M knew as early as 1960 that chemical wastes from its PFAS manufacturing facilities that were dumped to landfills would leach into groundwater and enter the environment.
• In 1975, 3M found there was a “universal presence” of at least one form of PFAS in blood serum samples taken from people across the United States.
• 3M began monitoring the blood of its employees for PFAS as early as 1976 because the company was concerned about health effects of the chemicals.
• Studies by 3M in 1978 showed that PFAS are toxic to monkeys.
• 3M resisted calls from its own ecotoxicologists going back to 1979 to perform an ecological risk assessment on PFAS and similar chemicals. 3M’s own ecotoxicologists continued raising concerns to 3M until at least 1999.
• DuPont company scientists issued internal warnings about the toxicity associated with their PFOA products as early as 1961.
• By 1979, DuPont had data indicating that its workers exposed to PFOA had a significantly higher incidence of health issues than did unexposed workers. DuPont did not report this data or the results of its worker health analysis to any government agency or community.
• In 1984, after obtaining data on environmental contamination near its Washington Works plant in West Virginia in 1984, DuPont held a meeting at its corporate headquarters to discuss health and environmental issues related to PFOA. Employees who attended the 1984 meeting discussed available technologies that were capable of controlling and reducing PFOA releases from its manufacturing facilities, as well as potential replacement materials. DuPont chose not to use either available technologies or replacement materials, despite knowing of PFOA’s toxicity.
“Command the Science”
According to the lawsuit, “3M recognized that if the public and governmental regulators became aware of the risks associated with PFAS, 3M would be forced to halt its manufacturing of PFAS and PFAS-derived products that would result in the loss of hundreds of millions of dollars in annual revenue.
This potential profit loss “drove 3M to engage in a campaign to influence the science relating to PFAS and, according to internal 3M documents, to conduct scientific ‘research’ that it could use to mount “defensive barriers to litigation.”
A key priority of an internal 3M committee was to “command the science” concerning “exposure, analytical, fate, effects, human health, and ecological” risks posed by PFAS and for 3M to provide “selective funding of outside research through 3M ‘grant’ money,” the lawsuit says.
“In exchange for providing grant money to friendly researchers, 3M obtained the right to review and edit draft scientific papers regarding PFAS and sought control over when and whether the results of scientific studies were published at all,” the suit alleges.
The Lawsuits Begin
In 2004, the Environmental Protection Agency (EPA) filed an action against DuPont based on its failure to disclose toxicity and exposure information for PFOA, in violation of federal environmental laws. In 2005, DuPont settled the action by agreeing to pay $10.25 million in a civil administrative penalty and to complete $6.25 million in supplemental environmental projects. The company also promised to phase out production and use of PFOA by 2015.
In 2005, DuPont settled a class action lawsuit filed on behalf of approximately 70,000 individuals with PFOA-contaminated drinking water supplies in Ohio and West Virginia for benefits valued at over $300 million.
Under the terms of this settlement, DuPont agreed to fund a panel of independent scientists to conduct whatever studies were necessary to confirm which diseases were linked to PFOA exposure, to remove PFOA from the contaminated water sources, and to pay up to $235 million for medical monitoring of those exposed.
After seven years of study and analyses, the Science Panel confirmed that PFOA exposures were linked to several serious human diseases, including two types of cancer.
More than 3,500 personal injury claims were filed against DuPont in Ohio and West Virginia following the findings of the Science Panel.
In 2017, DuPont and its spinoff company Chemours (below) agreed to pay $670.7 million to resolve the approximately 3,500 then-pending cases.
A Complex Corporate Scheme to Shield Liability
As its legal liability became a bigger threat to its financial situation, DuPont engaged in a complex business restructuring strategy starting around 2014, to shield itself from having to pay, including the “spinoff” of some of its chemicals business into a new company called Chemours. These alleged actions, which the lawsuit calls “fraudulent,” get a bit complex (probably intentionally so).
The lawsuit uses the term “Old DuPont” to describe the company prior to these reorganizations.
“It is apparent that Old DuPont’s goal with respect to the Chemours Spinoff was to segregate a large portion of Old DuPont’s legacy environmental liabilities, including liabilities related to its PFAS chemicals and products, and in so doing, shield Old DuPont’s assets from any financial exposure associated therewith,” the lawsuit states.
Other steps in this restructuring included a merger with the Dow Chemical Company, the transfer of its historic assets to other entities, including defendant DuPont de Nemours Inc, and the spin-off of DuPont to a new parent company named Corteva, Inc.
“Old DuPont also sought to hide critical details of these transactions by burying them in non-public schedules to agreements in an attempt to keep the parties such as Plaintiffs in the dark,” the lawsuit says. “As a result, Old DuPont has shed more than $20 billion in tangible assets through restructuring efforts and attempted to put those assets outside of Plaintiffs’ reach.
After the Chemours Spinoff, “Old DuPont took the untenable position that it was somehow no longer responsible for the widespread PFAS contamination that it had caused over several decades,” the lawsuit says.
Claims for Damages and the Cost of Cleanup
The OCWD lawsuit, of which Fullerton is now a plaintiff, brings several claims for damages against the defendants, and asks that the responsible companies pay for remediation and cleanup to protect our local water supplies.
Even though they have not yet won the lawsuit, OCWD has taken costly steps to protect and clean up wells and groundwater, including investigation, sampling, remediation, treatment system design, acquisition, installation, operations and maintenance of its water systems.
The lawsuit states that the responsible companies’ negligent and harmful conduct “was performed to promote sales…and maximize profits, in conscious disregard of the probable dangerous consequences of that conduct and its foreseeable impact upon health, property and the environment, including the surface water, groundwater, replenishment water, drinking water supply and the Plaintiffs’ contaminated wells.”