1 company removes lawsuit from Superior Court to District Court
The CNMI government is suing eight companies for allegedly making chemicals that later contaminated the CNMI’s drinking water and pose a threat to public health, the environment, and natural sources of water.
The CNMI’s lawsuit was filed before the Superior Court last Nov. 19, but the case came to light after one of the eight companies being sued asked to remove the matter from the local court to the U.S. District Court for the NMI last Thursday.
Last Jan. 9, the Commonwealth Utilities Corp. announced that it has detected levels of perfluorooctaine sulfonate (PFOS) and/or perfluorooctanoic acid (PFOA) that exceed the U.S. Environmental Protection Agency’s health advisory level of 70 parts per trillion in an area of its drinking water system.
CUC identified the affected areas as villages of Chalan Laulau, Illiying, Chalan Kiya, As Terlaje, Kannat Tabla, Fina Sisu, Oleai, parts of southern Garapan, Gualo Rai, Susupe, As Lito, and As Perdido.
CUC then advised consumers in those areas at that time to avoid drinking the water and until the concentrations of PFOS and PFOA are below the health advisory level.
CUC said studies indicate that exposure to PFOA and PFOS over certain levels may result in adverse health effects, including developmental effects on fetuses during pregnancy or to breastfed infants, cancer, liver effects, immune effects, thyroid effects, and other effects.
CNMI’s lawsuit seeks to hold the eight companies liable based on their alleged conduct in designing, manufacturing, and selling PFOA and PFOS, which are considered part of firefighting chemical agents that were developed for sale to the U.S. military and others.
The lawsuit wants to hold these companies liable for designing, manufacturing, and selling products containing PFOA and PFOS that were used or discharged at sites in the NMI.
The CNMI’s lawsuit named as defendants the 3M Co., Tyco Fire Products LP, Chemguard Inc., Buckeye Fire Equipment Co., Kidde-Fenwal Inc., National Foam Inc., E.T. Du Pont De Nemours and Co., and the Chemours Co.
It was the 3M Co. that filed the notice of removal of the lawsuit from the Superior Court to the District Court, through counsel G. Patrick Civille.
In the lawsuit, the Commonwealth alleges that the defendants, including 3M, manufactured AFFF products containing PFOS and/or PFOA and/or compounds that degrade into those chemicals.
In 3M Co.’s notice, Civille asserted that, as multiple courts have previously ruled in similar cases brought against AFFF, 3M is entitled to remove this action under the federal officer removal statute, to have its federal defense adjudicated in a federal forum.
The Commonwealth brought the lawsuit as “the trustee for the benefit of its citizens of all natural resources within its jurisdiction.”
The Commonwealth alleges that the defendants marketed and sold these products to military facilities and other purchasers, and that these products were used or discharged at sites in the NMI.
The Commonwealth alleges, among other things, that the defendants’ AFFF products were defectively designed, and asserts claims for strict products liability-design defect, strict products liability-failure to warn, negligence, and public nuisance.
The CNMI government seeks damages “for all costs to investigate, clean up and remove, restore, threat, monitor and otherwise respond to PFOS and PFOA contamination resulting from defendants’ AFFF, so the contaminated natural resources are restored to their original condition.”
The CNMI also seeks for damages to compensate CNMI residents for the lost use and value of these natural resources during all times of injury caused by PFOS and PFOA.
Civille said removal is proper under the federal officer removal statute, which provides for removal when a defendant is sued for acts undertaken at the direction of a federal officer.
Since the 1960s, Civille said, the U.S. military has used AFFF that meets military specifications on military bases, airfields, and Navy ships—settings where fuel fire are inevitable and potentially devastating—to train its personnel, put out fires, save lives, and protect property.
Indeed, the lawyer said, the U.S. Naval Research Laboratory developed AFFF in response to deadly, catastrophic fires aboard the aircraft carriers USS Forrestal in 1967 and USS Enterprise in 1969.
Decades later, Civille said, the Naval Research Laboratory described the development of AFFF as “one of the most far-reaching benefits to worldwide aviation safety.”
Civille said the manufacture and sale of AFFF procured by the military is governed by rigorous military specifications created and administered by Naval Sea Systems Command.
The lawyer said all such AFFF products must be “qualified for listing on the applicable Qualified Products List” prior to military procurement.
Prior to such listing, Civille said, a “manufacturer’s products are examined, tested, and approved to be in conformance with specification requirements.”
Civille said the MilSpec designates Naval Sea Systems Command as the agency responsible for applying these criteria and determining whether AFFF products satisfy the MilSpec’s requirements.
The lawyer said that, from its inception and very recently, the MilSpec included the express requirement that MilSpec AFFF contain “fluorocarbon surfactants,” the chemical class that includes PFOA and PFOS.
Civille said the current MilSpec expressly contemplates the presence of PFOA and PFOS (subject to recently imposed limits) in AFFF formulations.
Indeed, Civille said, the current MilSpec recognizes that it is not yet technically feasible for manufacturers to completely eliminate PFOA and PFOS “while still meeting all other military specification requirements.”
Civille said the first requirement for removal under the federal officer removal statute is satisfied because 3M (a corporation) is a “person” under the statute.
The lawyer said the Commonwealth’s own allegations acknowledge that 3M was “acting under” federal officers of the Department of Defense and its agencies when manufacturing and selling MilSpec AFFF products allegedly used in the NMI.
Civille said in designing, manufacturing, and supplying the MilSpec AFFF products at issue, 3M acted under the direction and control of one or more federal officers.
Civille said the AFFF products in question were subject to various tests by the U.S. Navy before and after being approved for use by the military and for inclusion on the Qualified Products List maintained by the U.S. Department of Defense.