Commonwealth accuses chemical giant of hiding health impacts of PFAS

A US chemical manufacturer stands accused of withholding evidence that its firefighting products used by the Australian Defence Force were toxic and did not break down in the environment.

A mammoth Federal Court claim brought by the Australian government against 3M labels the company's actions "intentional and reprehensible".

It claims that by 1979, 3M knew that variants of per- and polyfluoroalkyl substances (PFAS) contained in its firefighting foam "persist indefinitely, bioaccumulate and bio-concentrate in both humans and animals", were potentially toxic to animals and could migrate into drinking water.

The Commonwealth alleges that 3M and 3M Australia "continued to manufacture, market, distribute and sell" aqueous film-forming foam (AFFF) for another 24 years, until at least 2003.

The statement of claim alleges "conscious, contumelious, contemptuous or outrageous disregard for the rights of the Commonwealth and the broader Australian public, including Defence personnel and those living in the areas surrounding the Bases, who have been affected by the presence and continued migration of … PFAS contamination".

During the first case management hearing on August 7, Justice Catherine Button described the 1,600-page document as "daunting", while 3M's counsel said it was the "most complex matter" they had ever seen.

In its largest ever legal claim, the government announced in May it was seeking $2 billion in damages arising from PFAS contamination at 28 Defence bases across Australia and the areas surrounding them. 

Large quantities of the foam were discharged in and around each of the sites during training and operational activities over about 30 years.

The ABC has obtained the statement of claim in which the Commonwealth alleges the use of 3M's AFFF "resulted in significant contamination" of land and water, including drinking water, that posed risks to human and animal health and the environment. 

The Commonwealth said it had incurred "substantial costs", including $214 million for undertaking investigations, remediation and ongoing monitoring, and $367 million in settlements from five class actions brought against the government. 

The damages sought are also designed to cover future costs the Commonwealth expects to incur, including further claims alleging loss and damage. 

The 28 bases have been split into three categories for the case.

The highest risk areas are those where PFAS is continuing to leach, new areas are being contaminated and guideline values for acceptable PFAS levels in drinking water or recreational waters are exceeded. 

Seventeen bases fall under that definition, including Jervis Bay, Richmond and Wagga Wagga in NSW, Oakey and Townsville in Queensland, Darwin and Tindal in the Northern Territory and Williams and Bandiana in Victoria. 

AFFF's history in Australia 

The claim lays out the history of AFFF, which dates back to 1962 when 3M, at the request of the United States Navy, began developing alternative options for firefighting foams that could be used to extinguish petroleum fires. 

In 1972, several years after members of the Australian Defence Force attended 3M product demonstrations, the Commonwealth began purchasing AFFF.

It met the requirements of the US Military and was marketed as "the most effective foaming agent ever developed", the court documents state. 

The government points to various statements made by 3M or 3M Australia from 1973 which claimed the product was "non-toxic to humans … was biodegradable and was not expected to adversely affect the ecology of receiving streams in the vicinity of its use". 

The federal government said it continued to purchase the product until 2003 on the condition that it did not have any significant detrimental effect on the environment or present a waste disposal problem. 

Internal reports detail risks

The Commonwealth's lawyers say 3M falsely made those assurances, citing 310 internal company documents including testing reports and environmental data sheets. 

The claim cites a toxicity study conducted by 3M in 1978 which found rhesus monkeys died within the first few days of exposure to a component in AFFF until concentrations were significantly lowered, and even at lower doses the animals exhibited signs of toxicity, including gastrointestinal distress. 

The government also refers to a document prepared in 1998 that identified PFOS, a type of PFAS, had been found in the blood of rats not knowingly exposed to it, concluding that " there was a significant risk of ecological harm due to environmental levels of PFOS".

The author of that report resigned from 3M in 1999, citing concerns about the dangers of PFOS and "profound disappointment" in 3M's handling of environmental risks associated with the manufacture and use of PFOS and its precursors, the documents state.

In 1981, 3M implemented and publicly announced a policy of not permitting women "of child bearing potential" to work at its Decatur, Alabama plant, "so they will not be exposed to a type of fluorochemical that can cause birth defects in rats".

The Commonwealth referred to another 3M document titled Project Spring Communication Plan dated May 2000 when it announced it would phase out certain products containing PFAS, including some firefighting foams.

It stated, "very small amounts of materials from this chemistry are widespread in the environment, including humans, and are persistent" but "existing scientific evidence indicates that the presence of these materials at extremely low levels does not pose a human health or environmental risk".

"This is like a small piece of plastic by the side of the road … it doesn't do any harm, but you'd rather not see it there," the internal document read.

The Commonwealth alleges "despite holding information about the properties and risks associated with these variants of PFAS, 3M took … no meaningful steps to properly or adequately warn purchasers of 3M AFFF as to those risks, or of appropriate measures that ought to have been taken to contain or minimise the release of PFAS into the broader environment". 

The ABC has contacted 3M for comment.

When Attorney-General Michelle Rowland announced the legal action in May, a 3M spokesperson said in a statement that the company would "defend ourselves against these claims through the legal process".

"3M has never manufactured PFAS in Australia and ceased sales of the products at issue in Australia around two decades ago," the statement said.

"Despite this, the Department of Defence continued to use PFAS-containing firefighting foams for nearly two decades longer."