City of LaCrosse sues 3M Company over PFAS Water Contamination

LaCrosse, WIOn March 4, the City of La Crosse filed a lawsuit in the Wisconsin Circuit Court alleging that 3M Company and 22 other defendants produced and marketed products containing perfluoroalkyl and polyfluoroalkyl (PFAS/PFOA) with knowledge that these substances were likely to contaminate public and private wells throughout the city.

The PFAS/PFOA contamination is believed to have stemmed from use of aqueous firefighting foam (AFFF) at the LaCrosse Regional Airport, which is owned and operated by the city. LaCrosse is among more than 100 local governments that have filed lawsuits against chemical companies over their link to PFAS contamination. LaCrosse v. 3M Company follows close on the heels of a $17.5 million settlement under the terms of which Tyco Fire Products and two other chemical companies agreed to pay Peshtigo, WI residents for the damage done to their wells.

Poisoning the water for decades

Developed in the 1940s, PFAS provide water and stain resistance, and have been used in a wide range of consumer products, commercial products and fire suppression foam. PFAS enter groundwater after the use of AFFFs on ground surface and travel downstream in groundwater.

Dubbed “forever chemicals,” they do not decompose under natural conditions, and once released, migrate, directly or indirectly, into soil and water and plants. PFAS are eventually ingested by wildlife and humans through PFAS-contaminated water.

The chemicals bioaccumulate and, even at levels measured in the parts per trillion, have been linked to cancer, liver and kidney damage, decreased fertility, developmental issues, and increased risk of asthma and thyroid disease. Per federal mandate, AFFF has been utilized at airports since the 1970s to train airport personnel and local fire departments and to extinguish aviation-related fires. It has reportedly been used at the LaCrosse Airport for decades.

LaCrosse wells

As of March 25, the city had tested more than 120 wells in some of the most heavily affected areas. Of those, 40 had levels of PFAS over the state's recommended limit and another 65 wells tested positive, but below the limit.

The Wisconsin Department of Natural Resources also has data from several well tests outside of the plume of contamination. All but one of 185 samples taken on French Island, for example, have tested positive for PFAS. Levels exceed the state's limit in 61 wells. The DNR is waiting for results from 90 other wells. 

Who knew what when?

But the success of an AFF contamination lawsuit like LaCrosse depends on more than proof of harm. It depends on proof of knowledge and intent.

The Complaint alleges that the defendant chemical companies manufactured, marketed and sold AFFF, even though they had been aware since the 1960s that PFAS:

• are highly toxic;
• do not biodegrade;
• are persistent in the environment;
• move easily through soil and groundwater; and
• pose a significant risk to human health and health and safety.

In 1983, 3M researchers concluded that concerns about PFAS “give rise to concern for environmental safety,” including “legitimate questions about the persistence, accumulation potential, and ecotoxicity of fluorochemicals in the environment.” That same year, a 3M study found that PFAS caused the growth of cancerous tumors in rats. In 1984, 3M documented a trend of increasing levels the chemical in the bodies of 3M workers, leading one of the company’s medical officers to warn in an internal memo: “we must view this present trend with serious concern. It is certainly possible that . . . exposure opportunities are providing a potential uptake of fluorochemicals that exceeds excretion capabilities of the body.” A 1997 material safety data sheet warned that AFFF includes “a chemical which can cause cancer.”

Keeping customer in the dark

But no one told the municipalities or firefighters about the about the health risks. The Complaint alleges that 3M’s AFFF products did not provide similar warnings or information about health concerns. Further, it charges that, by hiding this information from customers like LaCrosse and the firefighters who would use the product, the companies placed profits over public health and safety.

LaCrosse seeks to recover the costs incurred and to be incurred by the city in investigating, monitoring, remediating, treating, and otherwise responding to the PFAS water contamination crisis, to stem the threat to public health and the environment the AFF products and to ensure the cost of the water treatment be borne by the polluters, not the city and its residents.

A spreading scandal

PFAS lawsuits are proliferating. For example, on December 1, 2020, eleven local water districts, including the Orange County Water District, filed a lawsuit in Orange County Court alleging that DuPont, 3M, Chemours, Corteva and Decra Roofing Systems are responsible for the costs of cleanup and decontamination related to PFAS in the districts’ water. As of late January, the multidistrict litigation in federal District Court in Greenville, S.C. included 760 PFAS lawsuits.