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North Carolina Sues 3M Co. for PFAS/PFOA Environmental Damage

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Attorney General seeks control of companies’ corporate assets

Wilmington, NCOn November 4, 2022 North Carolina Attorney General Josh Stein filed four separate per-and polyfluoroalkyl substances (PFAS) and perfluorooctanoic acid (PFOA) state court lawsuits in Mecklenburg, Wayne and Stanly Counties. This is in addition to federal Camp LeJeune toxic tort lawsuits that have been consolidated in the Eastern District North Carolina.

North Carolina is not alone. New Mexico, New Jersey, Florida and Michigan have also filed lawsuits, as have many other states, counties and municipalities. State lawsuits may seem like small potatoes, but their proliferation indicates something important.   
The environmental and human harm caused by the use of PFAS and PFOA chemicals is massive and long lasting. The legal task of addressing this harm calls to mind the legal challenge of dealing with the damage caused by perfectly legal but over-prescribed opioids, which ultimately ended in a global settlement.

In the long course of the opioid  litigation against Perdue Pharma and the Sackler family, the money went walking, some of it offshore and unreachable by U.S. courts. One of the most interesting elements of the recent North Carolina lawsuits is the careful description of an elaborate corporate scheme to shield assets from liability claims. It may seem like a stretch to compare this to the opioid crisis but, in terms of money, are we seeing something similar here?

Firefighting foams, Teflon cookware, stain guard spray – what’s the harm?

PFAS and PFOAS persist indefinitely in the environment, bioaccumulate in individual organisms and humans and biomagnify up the food chain. They are associated with a long list of adverse health effects in human beings, including immune system suppression, high cholesterol, pregnancy-induced hypertension, thyroid disease, ulcerative colitis, and testicular and kidney cancers.

Since their development in the 1960s, these chemicals have been used in the manufacture of non-stick cookware and fabric protector sprays, like ScotchGuard, as well as in firefighting foams. Since they never degrade in the environment, they ultimately contaminate water systems and become even more widespread.

Environmental damage

Unlike the federal Camp LeJeune toxic tort lawsuits, the focus of the North Carolina lawsuits is first on the environmental damage and only then on the personal injuries caused by that contamination. The Charlotte Airport/ANGB lawsuit, focuses specifically on the damage at that site. The same is true for the Charlotte Police and Fire Training Academy lawsuit, the Seymour-Johnson Airforce Base lawsuit and the Stanly County Airport/ANGB lawsuit. The attorney general sued 3M Co. and 13 related corporations for injuries to North Carolina’s natural resources, including groundwater, surface water, sediments, soils and living organisms. The state seeks property damages and economic damages, remediation and restoration costs (although it is not entirely clear that the science yet exists as to how remediation can be accomplished).

At the Charlotte Airport site, historical data show that the airport’s Aircraft Rescue and Firefighting unit likely trained and tested with toxic firefighting foam between 1986 and 2019. The foam was used in a 2017 accident. It now seems clear that the contamination has seeped into the water supply at an Air National Guard Base adjacent to the airport. Groundwater samples there show a concentration of PFAS and PFOA chemicals that is 144 times the EPA limit. Surface water shows contamination at the base that is between 22 and 44 times the EPA limit.

At the Charlotte Police and Fire Training Academy site, PFAS and PFOAs have been detected in 17 groundwater wells in amounts as high as 1,800 times the EPA limit. The chemicals also appear to have contaminated the offsite Sugar Creek area.

At Seymour Johnson Airforce Base, six tested areas indicated PFAS/PFOA contamination. At one site contamination was 2,857 times the EPA limit. At another, contamination was 4,457 times the EPA limit. The chemicals also appear likely to have leaked into the Neuse River and Stoney Creek.

At Stanly County Airport, groundwater tested at the Air National Guard Base, which occupies a portion of the site, indicated PFAS and PFOA levels as high as 14 times the EPA’s limit for safe exposure.

Migrating money

But PFAS and PFOA contamination does not appear to be the only thing leaking elsewhere. All four complaints outline an unlawful scheme of corporate restructuring that seems designed to protect 3M and related companies’ corporate assets from billion-dollar liabilities that they will almost certainly face.

The net effect of this complicated plan was to move almost all assets of the corporate group away from one insolvent entity, which held all or nearly all of the anticipated liabilities. Even a successful plaintiff might be left with nothing but a moral victory, which would do very little to remediate or repair the damage. Perhaps the most important form of relief requested in these lawsuits is that North Carolina effectively freeze the chemical companies’ assets through a trust to be held for the benefit of those who were harmed.

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