The 3M Co. has a new tactic to defend itself against a lawsuit filed by the state of Minnesota and the Metropolitan Council: If we polluted, so did you.
In a counterclaim filed Monday, the company said that if it is found liable for polluting the Mississippi River, the Met Council also should pay.
That’s because, 3M says, the planning agency for the seven-county Twin Cities area dumps chemicals into the river from its seven waste treatment plants.
The court document is a new twist in the legal battle over PFOS, or perfluorooctane sulfonate, found in the river.
The state sued 3M in December 2010, saying its chemicals had damaged the environment. The Met Council joined the suit 11 months later.
But 3M now argues that the chemicals are coming from treated sewage and other sources.
There has been no dollar amount specified in the state’s lawsuit, but removing PFOS from the Mississippi could cost billions. In November, the Met Council said the cost of stripping the chemical from water discharged from a single plant could be $1 billion and would require a 40 percent rate hike.
In an email Tuesday, a spokesperson said the Met Council would not comment on the 3M counterclaim.
“In the unlikely event that we were held liable to the state for damages or reparations for the Mississippi cleanup, the Met Council should be assessed for a proportional share,” said Bill Brewer, a partner at 3M’s law firm, Bickel & Brewer, which has offices in Dallas and New York City.
The 3M document was filed in the Fourth District Court in Minneapolis. In it, the company said it has spent $100 million – double previous estimates – to clean up ground and river water in the past 10 years.
Those efforts stand “in sharp contrast to the Met Council’s inaction,” the document says.
Starting in 1949, 3M manufactured chemicals called perfluorochemicals, or PFCs, including PFOS. They were used in Teflon, fire extinguishers, Scotchgard stain repellent and other household products.
The company legally disposed of waste products containing PFCs in landfills until the 1970s. In 2004, minute amounts of PFCs were found in groundwater around those landfills, affecting the drinking water of 67,000 people from Oakdale to Hastings.
PFCs in megadoses cause cancer, thyroid problems and birth defects in mice, but they have never been shown to be harmful to people at any level.
3M says amounts found in the Mississippi River measure in parts per trillion and are far too small to harm people or wildlife. The water has been regularly tested in Pool 2, between the Ford Dam in St. Paul and Hastings.
The state says 3M should pay for damage to the environment.
“3M polluted and damaged our waters with these chemicals,” Attorney General Lori Swanson said when the original lawsuit was filed.
“The lawsuit asks the company to make right the problems caused by its contamination of our waters.”
Minnesota spent $13 million – and 3M contributed $8 million – to install a liner beneath a landfill in Lake Elmo to prevent PFCs from leaching into groundwater.
The state lawsuit also points to fish consumption advisories in several lakes and the Mississippi as a sign of environmental damage.
The Met Council said in a November 2010 news release that PFCs, regardless of the immediate source, were from a “known party” – 3M. So if 3M made the chemicals, it is liable, the Met Council is arguing.
But 3M attorney Brewer said the company stopped making PFOS in 2002. So, 10 years later, why is the chemical still found in the Mississippi River?
The answer, Brewer said, must be that it is coming from sources other than 3M. He said he suspects other users of PFCs, such as factories or even households, might be the source of PFOS.
The PFOS in the river could be from other U.S. and foreign companies that still make it, he said. It’s possible that the Mississippi was polluted when a local fire was extinguished with foam containing PFOS, he said.
“You spray it all over the place, then it rains, and gets into the groundwater,” Brewer said.
3M also said the Met Council gives farmers sewage sludge that contains PFOS, which can seep into rivers and underground water.
Wastewater from such sources must be finding its way into the Met Council’s treatment plants, Brewer said. Four of those plants are on the Mississippi, and three are on tributaries, the document says.
Bickel said 3M’s efforts to reduce environmental PFCs have been working.
In 2011, a study showed that the PFC levels in Washington County residents dropped by about 23 percent in two years.
In addition, PFC levels in fish dropped by as much as half from 2009 to 2011, depending on the species of fish. The study measured PFC levels in fish in Pool 2, from Hastings to St. Paul’s Ford Dam.
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