N.H. Sues Makers of PFAS Chemicals for Drinking Water Contamination

May 29, 2019

Governor Chris Sununu announced the lawsuits at a press conference Wednesday with leaders from the Attorney General's office and Department of Environmental Services.
Credit Annie Ropeik / NHPR

New Hampshire is suing the original makers of toxic PFAS chemicals for allegedly contaminating the state's drinking water.

At a press conference Wednesday, Gov. Chris Sununu joined officials from the Departments of Justice and Environmental Services to announce two statewide lawsuits against eight companies – including 3M, DuPont and its spinoff, Chemours.

"New Hampshire is taking, again, a preeminent position not just for ourselves and our citizens, but in the country ... in making a stand against the introduction of the PFAS compounds into our drinking water," Sununu says.

Attorney General Gordon MacDonald says the goal is to recoup damages for the PFAS contamination that's been found in all 10 New Hampshire counties. In towns like Merrimack and Portsmouth, the contamination has put hundreds of families on bottled water.

"It is my hope that those responsible for the manufacture and distribution of PFAS will recognize the severity of the issues they've caused and will become part of the solution,” MacDonald says.

STATEWIDE ALLEGATIONS

Other states have won settlements in similar lawsuits, focusing on specific contaminated sites. New Hampshire’s lawsuits are the first in the country to seek compensation for statewide contamination.

“These compounds are so ubiquitous and are so mobile that they threaten all of our natural resources,” says MacDonald.

The suits ask the chemical companies to pay the cost of treatment, remediation, disposal and other response and management of PFAS in New Hampshire’s environment and at wastewater treatment facilities and other affected areas.

The suits don’t specify a target dollar amount or say how any money that’s received would be doled out, but officials say that will be determined as the suit moves forward.

"These compounds are so ubiquitous that they threaten all of our natural resources." - NH AG Gordon MacDonald

MacDonald compared the lawsuits to the state’s 2015, $236-million-dollar settlement with ExxonMobil over MtBE chemical contamination of drinking water, which formed the basis of the state trust fund that now provides grants for water infrastructure projects.

While a similar settlement is the goal of the PFAS suits, MacDonald said the state will take “whatever legal action is necessary” to hold the makers of the chemicals and PFAS-based firefighting foams accountable.

At Wednesday’s press conference, Gov. Chris Sununu called the state’s complaints some of “the more significant lawsuits the state has ever undertaken.”

NEGLIGENCE AND MALICE

New Hampshire's lawsuits allege these PFAS companies knew for decades that the chemicals could be harmful and would persist and build up in the environment, humans and animals.

This has been corroborated by corporate records revealed in past news reports and lawsuits.

“[These companies] were the ones that created it, they were the ones that manufactured it and they were the ones that distributed it,” Sununu says. “And ultimately they’re the ones that have to be held as the primary responsible parties.”

The suits seek "enhanced" damages, on grounds that the companies' actions were malicious and negligent.

PFAS, an umbrella term for chemicals such as PFOA and PFOS, have been linked to serious health effects, including cancer.

They were used for decades in all kinds of household and industrial products, such as nonstick pans, waterproof clothing and stain-resistant carpets.

They were phased out of American manufacturing in the mid-2000s, but are still used in products made overseas – and are present in still-used stockpiles of firefighting foam.

"We will vigorously defend our record of safety, health and environmental stewardship." --DuPont spokesman Dan Turner

One of the two lawsuits focuses on firefighting foams, which have contaminated military installations and fire stations in New Hampshire – such as Pease Air Base – and nationwide.

The suit says companies making those foams for sale in New Hampshire didn't make an effort to tell their customers not to use stockpiles of PFAS-based foams after the chemicals were no longer used in the mid-2000s.

COMPANIES DEFEND ACTIONS

The fire foam-focused suit names Chemguard and Tyco, both now owned by Johnson Controls, as well as Buckeye Fire Equipment, National Foam and Kidde-Fenwal, a subsidiary of United Technologies.

None of those companies responded immediately to a request for comment.

3M, DuPont and Chemours are named in both suits.3M invented PFAS, and was its only U.S.-based manufacturer, according to the lawsuits.

DuPont purchased PFAS from 3M for years to make products like Teflon. DuPont spun off Chemours in 2015.

The companies have long questioned scientific findings about the toxicity of PFAS, and have sought to downplay its role in environmental problems. They've also spent hundreds of millions of dollars to settle PFAS-related lawsuits.

“3M cares deeply about the safety and health of New Hampshire’s communities,” says 3M spokeswoman Fanna Haile-Selassie in a statement. “3M acted responsibly in connection with products containing PFAS and will vigorously defend its environmental stewardship.”

DuPont spokesman Dan Turner echoed this in a separate statement.

“While we do not comment on pending litigation, we will vigorously defend our record of safety, health and environmental stewardship,” Turner said.

Officials from Chemours, the DuPont spinoff, said in a statement they hadn't reviewed the lawsuits.

"But we can tell you that Chemours does not have manufacturing facilities in New Hampshire and does not manufacture, formulate or sell firefighting foam," the statement said. "Chemours is committed to being an industry leader in environmental stewardship."

GROWING HEALTH CONCERNS

Former state representative Mindi Messmer has advocated for years for more PFAS regulation. She and other activists say the lawsuits are the right next step.

"Make sure that we don't just look at the cost of remediation. We also need to look at the public health costs." --Former state Rep. Mindi Messmer

But Messmer also hopes the suits and state officials will seek to address health costs for people who've been exposed to PFAS.

"Make sure that we don't just look at the cost of remediation and water lines to supply clean water,” Messmer says. “We also need to look at the public health costs."

With these lawsuits, New Hampshire joins a handful of other states like New York and Michigan that have sued chemical companies for PFAS contamination.

Messmer says she hopes New Hampshire may also join a class-action suit set to be heard in South Carolina. It includes dozens of municipalities, states and water utilities from Alaska to Florida, as well as two contaminated sites in Massachusetts.

New Hampshire is also set to become one of only a few states with its own regulations on PFAS in drinking water. Final versions of the state’s new PFAS limits are due out next month and may factor into the new lawsuits as they move forward, which could take years.

PFAS is not formally regulated by the federal government, but the Environmental Protection Agency has released health and cleanup guidance in the past and plans to develop more formal regulations in the coming years.

(This post was updated midday Thursday with additional reporting.)

READ the lawsuits below. The first, against 3M, DuPont and Chemours:

And the second, which includes five makers of firefighting foam:

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