Air Date: Week of June 7, 2019

Drinking water contaminated with PFAS chemicals has put hundreds of families in New Hampshire cities including Merrimack and Portsmouth on bottled water. (Photo: Thad Zajdowicz, Flickr, Public Domain)

New Hampshire may be one of the smallest states in the US, but it’s suing some of the largest chemical companies in the world for knowingly polluting the environment with the persistent toxic class of chemicals called PFAS and PFOA while failing to disclose the risks to public health. Now, New Hampshire wants DowDuPont, 3M and six other companies to pay for investigations, cleanup, and remediation of the persistent chemicals’ pollution. Host Steve Curwood and Vermont Law School professor Pat Parenteau discuss the lawsuit.

Transcript

CURWOOD: From PRI and the Jennifer and Ted Stanley Studios at the University of Massachusetts Boston, this is Living on Earth. I’m Steve Curwood.

New Hampshire may be one of the smallest states in the US, but it is suing some of the largest chemical companies in the world for knowingly polluting the environment with the persistent toxic class of chemicals called PFAS and PFOA while failing to disclose the risks to public health. Billions of dollars could be at stake, especially if other states join New Hampshire with similar suits against 8 chemical companies, including giants Dow DuPont and 3M. The chemicals involved range from no-stick compounds for cookware and pizza box liners to fire retardants, and once released into the environment they can contaminate water supplies for decades, for humans and wildlife alike. PFAS and PFOA exposure is linked to diseases including liver cancer and reproductive malfunction, and New Hampshire claims the chemical manufacturers knew about those dangers but didn’t inform the public or search for safer alternatives. Now the state wants the companies to pay for investigations, cleanup, and remediation of the chemicals’ pollution. Pat Parenteau is a law professor at the Vermont Law School. Hi Pat, welcome back to Living on Earth.

PARENTEAU: Hey, Steve, good to be back.

CURWOOD: So New Hampshire is suing some eight chemical companies that produce these PFAS compounds. By the way, what are these contaminants and where are they found?

PARENTEAU: They're found in just about everything. A lot of these chemicals are used in fire retardant foam and so forth, but you can find them in pretty much any consumer good you can think of. There are Teflon pans, they're used to line pizza boxes to keep the pizza fresh. So they're used in a whole variety of commercial products right off the shelf.

CURWOOD: And what's so bad about them?

PARENTEAU: Well, they are suspected carcinogens. They tend to, what's called bio-amplify up through the food chain. So they concentrate, they're persistent. And so once they're out in the environment, whether it's in the water or the air, they don't go anywhere. I mean, they concentrate, they aggregate over time, they move through the food chain. And you know, science is still trying to study the full effects of these chemicals. But what we know so far is that you don't want them in your food or your drinking water, for sure.

CURWOOD: And what's the particular issue with drinking water? This seems to be a real flashpoint.

PARENTEAU: Yeah, because once they get into a public water supply – there are like 150,000 public water supplies in the country – first of all, they don't have what's called a maximum contaminant level for these chemicals. EPA has been slow to set these MCLs, as they're called, and of course the Trump administration is dragging its feet. So we don't really have a national standard, a safety standard for these chemicals. So individual states are beginning to adopt them. And get this: some of these standards are measured in the parts per trillion. So that's how potentially toxic they are.

CURWOOD: Now, the State of New Hampshire has brought this suit as the state against these companies. What exactly is New Hampshire alleging here?

PARENTEAU: They're arguing that these products are unsafe, and that the manufacturers have failed to disclose the risks associated with them. This is a typical story, Steve, we've heard this before, where the companies that are involved, Dow and many, many others, knew of some of the risks and did not warn people and did not take steps to actually try to find alternatives to these particular chemicals. So these are the kinds of cases, public nuisance, when it comes to contaminating water supplies, that can be litigated as a public nuisance. So you know, we've seen these kinds of suits with Monsanto and Roundup, where the juries in California have returned huge verdicts against Monsanto for the use of glyphosate in pesticides. States are beginning to flex their muscle in court to go after these major companies for damages and for money to monitor where the contamination exists, and of course, how to clean it up.

CURWOOD: Now, what's unusual about this lawsuit, if I have this correct, is that the State of New Hampshire as a state is bringing this action, as opposed to individuals who say they've been injured. What's important about that difference, if there is one?

PARENTEAU: Yeah, so the state is using its powers of sovereignty with a doctrine that's known as parens patriae. They're acting, of course, on behalf of the public, both current generations and future generations, that will be exposed to these chemicals. Similar to what the states did with tobacco, similar to what some of the states are doing with climate change that we've talked about before. So these are not individuals, as you said, these are not class action lawsuits. This is, the state's basically saying, "We want these companies to come into our state and look at all the places in which we suspect there to be contamination." That would include things like landfills, because of course, when products are finally used up, they get dumped in the landfill. But these chemicals stay there and they come out over time into the water, into the groundwater. So you know, the state is looking for a really comprehensive remedy that – New Hampshire, I mean – they want their entire state, basically, to be investigated, at least those places where it's most likely you're going to find the contamination, and then figure out what you're going to do about it.

CURWOOD: Now, as I understand it, in New Hampshire a lot of the impetus, a lot of the concern, was raised by people, in particular mothers, in the area of the former Pease Air Force Base outside of Portsmouth. But this lawsuit doesn't simply talk about that area, it's talking about the whole state.

PARENTEAU: The whole state, yeah, it's a generic lawsuit saying, you know, "We're a trust, the state is a trustee for all of the public water supply, and private water supply wells in the state. And we're not going to go one by one, that would take forever. We're going to want a global agreement with the companies if we can get it, or a verdict from the court if we need it, that orders a comprehensive approach to getting on top of this problem and cleaning it up."

CURWOOD: So what kind of money are we talking about here if New Hampshire is successful and other states decide to bring similar actions?

PARENTEAU: Well, New Hampshire didn't put a dollar figure on what they were seeking, because of course they're saying we don't even know enough about the extent of the contamination to put a number on it. But you can easily think about verdicts in the hundreds of millions, if not billions of dollars. I'm thinking now that New Hampshire recently won an award against Exxon Mobil for MTBE contamination of water supply. That is the additive, the gasoline additive, that Exxon was using to meet clean air standards. And now that's turned up in water supply systems all across the country, so easily talking about hundreds of millions of dollars in verdicts against these companies, and probably approaching a billion. So I think New Hampshire is feeling pretty confident that they know how to litigate these cases against major companies and win them. So that may be a big reason for it, this Attorney General's office, you know, has had a fairly recent victory, 2015. And they're feeling bullish about it.

CURWOOD: So this particular lawsuit, brought in May of 2019, how soon might there be results from this, do you think?

PARENTEAU: That's a good question, I think you're looking at... I mean, the state is hoping to negotiate a settlement, obviously, but that'll take years. And as far as getting a trial and getting through all of that, that's going to be at least a couple of years with the appeals on top of that. So unless there's a settlement in the case, which I think is unlikely at this point, we're looking at several years before we see a final resolution.

CURWOOD: Why do you think it's unlikely that there will be a settlement?

PARENTEAU: Well, I'm sure that DuPont is terrified of setting a precedent, just the mere fact that the company is going to agree to pay even if they say we're not admitting liability, but in the interest of settling the case, we're willing to pay you to make the case go away. The minute that that happens, of course, there's going to be lawsuits all over the country. In fact, I wouldn't be surprised if even before we see the end of the New Hampshire case, there'll be other cases filed. I know that Michigan is looking at these issues, Wisconsin is looking at these issues. Vermont, my home state of Vermont, had this problem in an area of Southern Vermont around Bennington, Vermont. So states are lining up to bring these cases. And if DuPont ever shows the slightest inclination to settle them, I think they might as well get out the big checkbook.

CURWOOD: Pat Parenteau is a law professor at Vermont Law School. Pat, thanks so much for taking the time with us today.

PARENTEAU: Thank you, Steve.

 

Links

NHPR | “N.H. Sues Makers of PFAS Chemicals for Drinking Water Contamination”

ABC News | “New Hampshire sues 3M, DuPont, other chemical companies”

Environmental Working Group | “Mapping the PFAS Contamination Crisis”

Pro Publica | Suppressed Study About PFAS: The EPA Underestimated Dangers of Widespread Chemicals