Australia sues 3M for PFAS contamination

The Australian government is suing US chemical giant 3M for two billion dollars over per- and polyfluoroalkyl substances contamination at 28 Defence Force bases across the nation.

The core allegation

The Commonwealth alleges 3M continued making and selling aqueous film-forming foam until 2003 despite knowing since 1979 that PFAS chemicals were toxic to humans and the environment.

Evidence cited by the Crown

The federal government's lawyers cite 310 internal company documents alleging 3M falsely assured the product was safe despite studies proving PFAS variants were toxic to animals, could cause birth defects and harmed the environment.

3M's three-part defence strategy

3M's counsel Phillip Solomon KC told the Federal Court the defence would contest three claims: public nuisance, a Victorian Environment Protection Authority claim, and a misleading and deceptive conduct claim.

Challenging the public nuisance claim

3M will argue the public nuisance claim is not available, contending the company did not have the means to abate the nuisance or responsibility for special loss associated with it.

“We will plead and ultimately contend that it doesn't contend a nuisance claim.”

Dispute over representative bases

The Commonwealth proposed 3M plead to six representative bases: Wagga, Tindal, Townsville, Oakey, Edinburgh and East Sale. 3M's defence seeks to focus on just one base instead.

Liability and toxicity questions

3M raised questions about liability for remediation costs already incurred by the Commonwealth and challenged the legal definition of the term potentially toxic used in the Crown's case.

“When the Commonwealth cleans up bases and sues us and seeks that sum of money, there are going to be questions about what, if any of that we would be liable for.”

Breakdown of the two billion dollar claim

The Commonwealth seeks two billion dollars covering two hundred fourteen million for investigations and remediation, and three hundred sixty seven million in settlements from five class actions against the government.

Next court date set

3M must file its defence by December 11. Another case management hearing has been scheduled for December 1 in the Federal Court.