Massachusetts sues manufacturers over ‘forever chemicals’

Massachusetts is launching a widespread lawsuit against more than a dozen manufacturers over the production and marketing of firefighting foam containing toxic “forever chemicals,” state Attorney General Maura Healey (D) announced on Wednesday.

Healey filed the complaint in the U.S. District Court for the District of South Carolina as part of an expansive nationwide procedure — called multidistrict litigation — that includes hundreds of cases against producers of the fire suppressant, known as aqueous film form foam (AFFF).

AFFF, first launched by the company 3M in partnership with the U.S. military, contains perfluoroalkyl and polyfluoroalkyl substances (PFAS) called “forever chemicals” that are notorious for their ability to accumulate in the body and in the environment over time.

“We come together today to announce a significant lawsuit involving toxic chemicals, PFAS, that have created costly and long-lasting harm to our communities here in Massachusetts,” Healey said at a Wednesday morning press conference.

“Today we’re holding accountable the 13 makers of PFAS who are producing, marketing and selling firefighting foam containing these dangerous chemicals,” she continued. “We’re also holding accountable two companies who shielded assets that should be available to remedy the damages caused from this contamination.”

3M, DuPont and Tyco Fire Products are among the companies named in the lawsuit. Others include AGC Chemical Americas, Archroma U.S., Arkema, Buckeye Fire Equipment, Chemguard, Clarinet Corporation, Dynax Corporation, E. I. du Pont de Nemours and Company, Kidde-Fenwal, National Foam, The Chemours Company and and Corteva.

PFAS are linked to a variety of illnesses, such as thyroid disease, testicular cancer and kidney cancer. While most known for their presence in AFFF, these chemicals are also key ingredients in a wide range of household products.

“Our lawsuit today goes after the manufacturers who’ve looked past all of these harms for decades and kept selling and putting this foam product out there,” Healey said.

The attorney general’s complaint alleges that manufacturers repeatedly violated state and federal laws protecting drinking water and deceived consumers by marketing, manufacturing and selling PFAS-containing firefighting foam despite the dangers posed by these substances.

These actions, according to the complaint, have led to the contamination of countless water supplies in Massachusetts, including more than 126 public drinking water systems in 86 communities with severe concentrations of PFAS.

AFFF products can cause hundreds, if not thousands, of gallons of foamy water laden with PFAS to enter the environment through soil, sediment, surface water and groundwater, the lawsuit noted.

“Once that happens, these are forever chemicals,” Healey said. “It’s really, really hard to remove and to address.”

The attorney general’s complaint alleges that manufacturers sold and produced the products and deceptively advertised them as safe and without human health or environmental risks when they knew that the substances were highly toxic.

Manufacturers also never warned the state or other buyers about the dangers of AFFF, even as they themselves began transitioning to other formulas, the filing alleges.

The lawsuit also accuses the companies of submitting false information to the Environmental Protection Agency and preventing workers from discussing the risks linked to these chemicals. Further, the complaint alleges that some defendants unlawfully engaged in financial transactions to avoid liability for their products.

“It’s not only dangerous. It is illegal, and that is why I am bringing suit,” Healey said. “We’re holding these manufacturers accountable for their deception, requiring them to pay back every last dollar our state has spent on their products to clean up the contamination.”  

In response to the lawsuit, 3M said in a statement that AFFF “was a critical tool developed to serve an important need for military service members facing potentially life-threatening challenges.”

“To this day, the only product that meets the military specification governing firefighting foam is PFAS-based AFFF, due to these substances’ unique and life-saving properties,” the statement added, stressing that the company “acted responsibly” with regard to the manufacturing and sale of AFFF.

DuPont, one of the companies mentioned by the attorney general during her press conference, maintained that the lawsuit “is without merit.”

“In 2019, DuPont de Nemours was established as a new multi-industrial specialty products company. DuPont de Nemours has never manufactured PFOA, PFOS or firefighting foam. While we don’t comment on pending litigation, we believe this complaint is without merit, and is the latest example of DuPont de Nemours being improperly named in litigation. We look forward to vigorously defending our record of safety, health and environmental stewardship,” the company told The Hill.

The Massachusetts lawsuit is seeking funds to clean up and remove, restore, treat and monitor PFAS contamination, as well as requesting an order that would require the manufacturers to reimburse the state for the damages the products caused, according to the complaint.

The claims are being made under the federal Safe Drinking Water Act, the Massachusetts Consumer Protection Act and the Massachusetts Uniform Fraudulent Transfer Act.

“We want them to restore our precious natural resources and ensure that the water we drink and use in our daily lives is not at risk as a result of PFAS products here in Massachusetts,” Healey said. “And we want to protect our firefighters who everyday face the dangers of PFAS.”

Massachusetts is not the only state to have joined the multidistrict litigation (MDL), with Ohio being the first, New York the second and at least six others already having filed, Paul Napoli, co-lead counsel for the MDL, said on Wednesday.

In total, there are about 13,000 individuals involved in the MDL, Napoli previously told The Hill.

The plaintiffs are sorted into different categories: water providers, municipal property owners, personal injuries, medical monitoring cases for individuals exposed but not yet ill, and states that have sued through a federal legal process called a National Resource Damage Assessment, he explained.

The cases submitted by attorneys general fall into that last category, Napoli confirmed on Wednesday.  

U.S. District Judge Richard Gergel will begin with the water provider category, for which he has already selected cases deemed “tier-one bellwether” — or those can represent the others within the same group, according to Napoli. Gergel narrowed down an initial 10 such cases to three, which will go to trial in January 2023, Napoli said.

Looking at the enormity of the federal MDL and the number of cases involved across the country, Healey stressed that it speaks to “just how pervasive this PFAS issue is.”

“Our job is to go out and to try to secure the greatest relief for our residents and for our communities,” Healey added.