3M to 'attack' $2 billion PFAS contamination lawsuit

US chemical giant 3M has outlined its defence strategy against the federal government's $2 billion lawsuit, which alleges the company withheld evidence that its firefighting products were toxic to humans and the environment.

The Commonwealth is seeking damages arising from per- and polyfluoroalkyl substances (PFAS) contamination at 28 Defence Force bases across Australia and the areas surrounding them. The lawsuit alleges the company continued to make and sell aqueous film-forming foam (AFFF) until 2003, despite knowing the dangers of its chemical make-up since 1979.

The 1,600-page statement of claim says 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. Citing 310 internal company documents, the federal government's lawyers allege 3M falsely made assurances the product was safe despite having studies that proved variants of PFAS were toxic to animals, could cause birth defects and harmed the environment.

During a case management hearing in the Federal Court, King's Counsel for 3M Phillip Solomon outlined what the defence's case would entail when it was filed to the court on December 11. Mr Solomon KC said a "large team is working hard" and that it would "attack" the case.

"We will plead and ultimately contend that it doesn't contend a nuisance claim," Mr Solomon said. "The allegation [is] that we had the means to abate the nuisance, that we caused the nuisance, that we were responsible for the special loss associated with the nuisance … and broadly had the ability to control the nuisance."

The Commonwealth has proposed that 3M plead to six "representative bases" that have features across different categories, including Wagga (NSW), Tindal (NT), Townsville (Qld), Oakey (Qld), Edinburgh (SA) and East Sale (Vic). However, Mr Solomon told Justice Catherine Button the defence would be seeking to focus on one of the 28 bases in question, rather than six.

The court also heard discussion about the definition of the term "potentially toxic". "[The phrase] "potentially toxic" isn't a legal concept," Mr Solomon told the court. "If [the Crown] mean to tell us that their reliance isn't really on a collection of words but a particular concentration [or] type, they can tell us."

Another case management hearing has been set for December 1. When Attorney-General Michelle Rowland announced the legal action in May, a 3M spokesperson said in a statement that it had never manufactured PFAS in Australia and ceased sales of the products at issue about two decades ago.