3M subpoenas NH towns in lawsuit over PFAS contamination
Federal regulations slow to materialize, but there is movement
A law firm representing 3M, a multinational company specializing in chemical manufacturing, has subpoenaed a number of New Hampshire towns — including several in the Upper Valley — for documentation related to perfluoroalkyl and polyfluoroalkyl substances, or PFAS, at waste management stations.
PFAS, known as “forever chemicals,” are linked by some studies to serious health effects, including cancers, liver damage and childhood developmental issues. 3M is among the original producers of some forms of the toxic chemical, which exist in a wide range of products, from non-stick cookware to dental floss.
Because they don’t break down in the environment, the chemicals can be found in almost every landfill site, environmental scientists say.
The subpoenas come in relation to a lawsuit filed by the State of New Hampshire in 2019 against the company over PFAS contamination of the state’s drinking water. 3M filed a counter-suit the same year after the state announced stringent testing requirements and restrictions for the chemicals.
Federal regulations still have been slow to materialize, but there has been some movement. The Environmental Protection Agency announced this week that it would set a near-zero level PFAS standard in drinking water and require utilities to remove the substances.
In 2020, New Hampshire adopted some of the strictest PFAS standards in the country. New Hampshire regulates four types of chemicals, with some of the lowest allowable contamination rates in the nation. For example, PFOA — a type of PFAS most commonly found in firefighting foam — is capped at 12 parts per trillion in the state, while Vermont caps it at 20 parts per trillion.
The state’s lawsuit against the chemical manufacturing company alleges that the manufacturers of PFAS knew for decades that the chemicals could be harmful, and would persist and build up in the environment, animals and humans. The suit seeks to recover damages for the PFAS contamination that’s been found in all 10 New Hampshire counties.
McLean Middleton, the Manchester-based law firm representing 3M, issued around 149 subpoenas in New Hampshire — more than half of the state’s municipalities — including the Upper Valley towns of Claremont, Croydon, Grantham, Grafton, New London, Orford, Plainfield and Sunapee.
“They haven’t told us why they’re subpoenaing these towns specifically,” said Chris Aslin, Senior Assistant Attorney General, who is representing the state in the lawsuit. “They’re certainly seeking information from locations where there is reported PFAS.”
Towns were identified based on “alleged detection” of PFAS in or near transfer stations or wastewater management systems, according to the subpoenas, which request 48 instances of documentation related to PFAS disposal and remediation efforts.
3M didn’t ask for any discovery from the state until after the subpoenas had been issued, Aslin said.
Much is still unknown about the sources of PFAS and the impacts of human and environmental exposure to the set of chemicals. A map of testing and impacted areas in the state can be found at the following link: https://tinyurl.com/4ptu74md
“3M has indicated to us through their attorney … that they’ve submitted these subpoenas because they have a court-set deadline to disclose any non-party that they believe could also be responsible for PFAS contamination,” said attorney Kerianne Roman, of the Manchester-based firm Drummond Woodsum. Roman is representing Orford, along with 31 other towns, in the subpoena process.
“We had no previous indication that this was an issue until it arrived,” said John Adams, chairman of the Orford Board of Selectmen.
Orford’s experience is similar to that of a number of municipalities that received the subpoena, Roman said.
“There’s so much that’s being requested,” she said. “As it stands, it’s nearly impossible for most of these municipalities to comply with it.”
Requested are documents and “communications” regarding the “use, release, or disposal of PFAS,” as well as documents regarding action taken with regard to the New Hampshire Department of Environmental Services’ guidance around PFAS, and any other environmental audits related to the chemicals, according to the subpoenas, which largely look similar for each municipality.
They also request documentation related to permitting and design of the wastewater treatment plant or landfill, as well as maps and surveys “sufficient to show the surface water and groundwater at and around the Site.”
While municipalities are not party to the lawsuit between the state and 3M, the court does allow parties to a lawsuit to serve subpoenas to non-parties.
“But it’s not something our municipalities are familiar with, because it doesn’t happen often,” Roman said. “It’s causing some heartburn for many of them, given what was requested, and that some of them are short staffed.”
The deadline to respond to 3M’s subpoena was extended at request of the municipalities, with a date yet to be set.
“This is all very by the minute,” Roman said. “The municipalities that my firm represents, as well as most of the others that we don’t represent, have filed an objection to the subpoena. The objection has said ‘we’re willing to provide what we can, and we need a lot of time to do so.’ ”
Frances Mize is a Report for America corps member. She can be reached at email@example.com or 603-727-3242.
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