Maryland Attorney General Anthony Brown, shown here speaking about the recent release of the redacted report on child sexual abuse in the Catholic Archdiocese of Baltimore, filed a state suit this week against chemical companies for PFAS, which are known as forever chemicals. (Kim Hairston, Baltimore Sun/TNS)
(Tribune News Service) — The Maryland Attorney General’s Office filed twin lawsuits Tuesday against several manufacturers that used PFAS, also known as “forever chemicals,” in firefighting foam and a host of other consumer products.
Filed in Baltimore City Circuit Court, the lawsuits allege that companies such as 3M and E. I. du Pont de Nemours and Company were aware of the dangers of PFAS chemicals but continued to sell them to consumers for decades.
In the lawsuits, the Maryland Attorney General’s Office argues the companies should be held liable for the cost of investigating and remediating PFAS contamination in the state, including in groundwater, bodies of water and soil. One of the suits focuses specifically on firefighting foams containing PFAS that were sold in Maryland, while the second focuses on other products, from nonstick cookware to upholstery.
“Access to safe drinking water, a clean environment, and the precious natural resources of Maryland will not be jeopardized by those who put profits above public health and safety,” Maryland Attorney General Anthony Brown said in a statement. “These corporations must pay to clean up the damage and be held accountable for the harms they have caused.”
The suits, filed on behalf of the Maryland Department of the Environment, the Maryland Department of Natural Resources and the Maryland Department of Health, list several claims against the companies including defective design, negligence, failure to warn, public nuisance and trespassing.
In filing its lawsuits against PFAS manufacturers, Maryland joins a host of plaintiffs that have sued the companies over the years. Last year, the City of Baltimore sued several such companies in U.S. District Court.
PFAS, per- and polyfluoroalkyl substances, are a class of thousands of manmade chemicals that were sold for their heat-resistant and water-resistant qualities, starting in the 1940s. But because of incredibly strong chemical bonds, PFAS do not easily degrade in the environment, meaning they accumulate not only in water and soil, but in the bodies of humans and animals.
Last year, the federal Environmental Protection Agency issued a health advisory for certain types of PFAS in drinking water, even at low levels: .004 parts per trillion for PFOA and .02 parts per trillion for PFOS.
These chemicals increase the risk for health conditions such as kidney and testicular cancer, high cholesterol and pre-eclampsia in pregnant women.
In its lawsuits, Maryland alleges that 3M and E.I. du Pont were aware of the chemicals’ toxicity to humans and the danger they posed to the environment as early as the 1950s. Internally, the corporations learned more and more about the threat, but they failed to disclose the information to the public, instead proclaiming the safety of their products.
In a statement, 3M spokesperson Grant Thompson said the company “acted responsibly in connection with products containing PFAS — including AFFF (aqueous film-forming foam) — and will vigorously defend its record of environmental stewardship.”
3M was the primary manufacturer of PFAS in the United States from the 1940s to early 2000s, according to the suit. E.I. du Pont started purchasing PFOA (a type of PFAS) from 3M in the early 1950s to manufacture products, including those marketed as Teflon. When 3M stopped producing PFOA in the early 2000s, E. I. du Pont began making the chemical itself, before phasing it out in 2015, according to the suit.
The lawsuits also allege that E. I. du Pont planned and executed a series of corporate restructurings from 2013 to 2019 in an effort to separate assets and hinder environmental litigation.
E. I. du Pont spun off its chemicals business to the Chemours Company in 2015, then merged with Dow Chemical Company. Afterward, three separate companies were created: Dow Chemical, DuPont de Nemours and Corteva Agriscience, which assumed certain liabilities, including those relating to PFAS.
DuPont spokesman Daniel Turner said in a statement that the DuPont de Nemours company, formed in 2019, never manufactured PFOA, PFOS or firefighting foam. The company is a defendant in Maryland’s lawsuits.
“While we don’t comment on litigation matters, we believe this complaint is without merit,” Turner said.
Corteva, also a defendant in the suits, declined to comment on the litigation. Chemours, another defendant, did not respond to a request for comment.
In a statement about the litigation, the American Chemistry Council, which includes all of the companies as members, expressed concern that Maryland’s announcement of its litigation painted all PFAS chemicals with too broad a brush.
“The PFAS category spans a broad range of substances with different characteristics, chemical profiles and uses. Whether at the state, federal, or international level, it is neither scientifically accurate nor appropriate to group all PFAS together or take a one-size-fits-all regulatory approach for this wide range of substances,” read the statement.
Maryland legislators have banned the manufacturing and sale of food packaging, carpet and firefighting foams with PFAS chemicals intentionally added, starting in 2024.
The Maryland lawsuits point to specific examples of PFAS contamination in Maryland. Firefighting foams, for instance, were used on a number of military bases in the state, and subsequent testing uncovered high levels of PFAS in the environment.
In previous instances, PFAS manufacturers have employed the “government contractor” defense, pointing to a 1988 Supreme Court case that limited liability for corporations manufacturing goods to government specifications, according to an analysis in Bloomberg Law.
In Maryland, the list of impacted military bases includes Aberdeen Proving Ground in Harford County, Joint Base Andrews in Prince George’s County, Naval Air Station Patuxent River in St. Mary’s County and the Naval Research Lab, Chesapeake Bay Detachment in Calvert County.
At the Calvert County lab, a 2017 investigation uncovered a “large PFAS plume” in the shallow aquifer, according to the Maryland lawsuit. Testing found 234,000 parts per trillion of PFOS. At Joint Base Andrews in Prince George’s County, investigators found surface soil of up to 17 million parts per trillion PFOS and up to 150,000 parts per trillion PFOA, according to the suit.
Officials in Maryland also have conducted testing of drinking water systems and fish tissue, and uncovered PFAS contamination. In October 2021, Maryland issued its first-ever fish consumption advisory because of PFAS, for several species in the Piscataway Creek, a Potomac River tributary that runs near Joint Base Andrews.
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