AG Grewal, DEP Announce Suit Against 3M, DuPont, Others

For Making, Selling Toxic Chemicals in Firefighting Foam Product

Complaint: Defendants Sold “Aqueous Film-Forming Foam” Despite Knowing Its Dangers;

Filing Represents 10th Natural Resource Damages Case Brought by State Since Jan. 2018

TRENTON – Attorney General Gurbir S. Grewal, Department of Environmental Protection Commissioner (DEP) Catherine R. McCabe, and Acting Division of Consumer Affairs Director Paul Rodríguez announced today that the State has filed a lawsuit against companies for manufacturing and selling firefighting foam products in New Jersey for decades despite knowing those products released toxic and harmful chemicals into the environment.

The lawsuit, which includes both environmental and consumer fraud claims, seeks natural resource damages (NRD) along with other damages and penalties. It represents the tenth NRD lawsuit brought by the State since the beginning of the Murphy Administration in January 2018.

At issue in the State’s lawsuit is the manufacture, advertising, and sale in New Jersey of aqueous film-forming foam (AFFF) products that contain –- or break down into when released into the environment — chemicals known as PFOS (perfluorooctane sulfonic acid)  and PFOA (perfluorooctanoic acid). The State’s complaint names the following manufacturers and sellers as defendants:  The 3M Company, Tyco Fire Products LP, Chemguard, Inc., Buckeye Fire Equipment Company, Kidde-Fenwal, Inc., National Foam, Inc., E.I. du Pont de Nemours & Company, and The Chemours Company.

“The corporations we’re suing today knew full well the health and environmental risks associated with this foam, and yet they sold it to New Jersey’s firefighters anyway,” said Attorney General Grewal. “Their conduct was unconscionable, and we’re going to hold these companies accountable.”

“To protect our environment and ensure the restoration of damaged natural resources, we must hold responsible the manufacturers who knew of the dangers of these products,” said DEP Commissioner McCabe. “Together with Attorney General Grewal and Acting Director  Rodríguez, I am proud to file this suit to protect New Jersey’s residents as DEP continues to lead the nation in proactively reducing exposure to PFAS chemicals, including the PFOS found in these foams.”

Aqueous film-forming foam products are mixed with water to form a foam solution, which is then used to extinguish fuel and other flammable liquid fires. Spraying a fire with AFFF creates a film that coats the fire, blocking its oxygen supply and preventing re-ignition.  AFFF was sold to military and industrial facilities, airports, firefighting training academies, state government firefighting entities, and local fire departments across New Jersey and elsewhere.

Filed today in New Jersey Superior Court, the State’s five-count complaint alleges that the defendant companies manufactured, marketed and sold their AFFF products for decades despite knowing the significant threat they posed to the environment and human health.

“For decades, these companies allegedly deceived New Jersey’s fire departments and other government agencies about the toxicity of their products,” said Acting Director Rodríguez. “With today’s complaint, we are making clear that we intend to hold companies responsible when they misrepresent the safety of their products and, in doing so, put our state’s residents at risk.”

PFOS and PFOA are mobile chemicals that persist indefinitely in the environment, bioaccumulate in humans and animals over long periods of time, and biomagnify as they are consumed up the food chain. PFOS and PFOA attributable to AFFF have been found in groundwater, surface water, sediments, biota, and other natural resources of the state. In combination or alone, PFOS and PFOA are dangerous pollutants, and are associated with a host of human health risks, including immune system suppression and testicular and kidney cancer.

Today’s lawsuit alleges that the defendants are responsible for vast quantities of foam-laced water running off from fuel spills, firefighting events and routine training sessions and then being introduced into New Jersey’s environment, where they can remain indefinitely and present a continuing threat to natural resources and human health.

Specifically, the complaint alleges PFOS and PFOA released from AFFF has contaminated groundwater and surface water in New Jersey – including several lakes – as well as sediment and a variety of wildlife species. The complaint seeks natural resource damages for the PFOS and PFOA contamination.

According to the complaint, DEP’s investigation into aqueous film-forming foam use and resulting PFOS/PFOA contamination remains ongoing. However, investigations have already confirmed PFOS and PFOA contamination in and around several military and other facilities in New Jersey where AFFF was used for many years.  Those sites include:  Joint Base McGuire-Dix-Lakehurst in Burlington County; Naval Weapons Station Earle in Monmouth County; the former Naval Air Warfare Center in Trenton; and the Federal Aviation Administration (FAA) Technical Center in Atlantic County.

The complaint notes that three bodies of water surrounding Joint Base McGuire-Dix-Lakehurst were found in a 2018 DEP study to have sustained “significant damage” from the chemicals at issue. Those bodies of water include Little Pine Lake, Mirror Lake, and Pine Lake. DEP issued fish consumption advisories for all three water bodies based on PFOS found in fish tissue, and a Do Not Eat advisory for sensitive subpopulations.

The complaint also notes that DEP sampling has shown “elevated levels” of PFOS and PFOA contamination in the Atlantic City Municipal Utilities Authority’s surface water reservoirs, which are located on FAA Technical Center property. Statewide, as investigation continues and additional foam-related PFOS and PFOA contamination sites are identified, it is expected that widespread contamination will be uncovered.

Today’s lawsuit includes product liability claims (both for defective design of their AFFF products, and failure to warn the State and users of their risks), negligence, and creating a public nuisance.   Through those claims, the State is seeking natural resource damages, the costs required to fully investigate AFFF contamination in New Jersey, and payment for the costs of remediating and restoring affected natural resources. Additionally, the State seeks economic and consequential damages, including punitive damages, for the defendants’ conduct in causing statewide PFOS and PFOA contamination.

In addition, the State is bringing claims under the Consumer Fraud Act based on the defendants’ deceptive and fraudulent business practices in their advertisement, offer for sale, and sale of AFFF to New Jersey state entities, counties, municipalities, and local fire departments.  The State is seeking civil penalties based on those sales, as well as restitution for these affected entities.

Today’s lawsuit marks the latest in a string of collaborative environmental actions between the Attorney General’s Office and DEP. With today’s filing, the State has now brought 10 NRD cases since the start of the Murphy Administration: three in August 2018; one in December 2018; one in early March 2019 against ExxonMobil; and four in late March 2019 against 3M, DuPont, Chemours and other companies relating to PFAS contamination. In addition to an ongoing “environmental justice” initiative, Attorney General Grewal and Commissioner McCabe have also filed a number of other lawsuits in the past year challenging the federal government’s rollback of rules addressing climate change, clean air, ozone pollution, and clean water.