Valero Refining Company-Oklahoma, the Michigan-based company that owns and operates the Valero Refinery in Ardmore, is suing 3M Company, E.I. Dupont De Nemours and Co., Chemours Co., National Foam Inc., Buckeye Fire Equipment Co., Kidde-Fenwal Inc., and other unnamed defendants for an unspecified amount to pay for costs the company has and expects to incur because of the chemicals in aqueous film-forming foam (AFFF) purchased by the refinery.
The suit, filed in Carter County District Court last month but transferred to federal court in Muskogee on July 12, accuses the companies of product liability for defective design, product liability for failure to warn, negligence, gross negligence, fraud and deceit, breach of warranties, unjust enrichment and violation of the Oklahoma Consumer Protection Act. It also accuses E.I. DuPont and Chemours of fraudulent transfer. The suit seeks an unspecified amount from the manufacturers.
AFFF is used to extinguish fires that cannot be put out with water alone, and Valero stated in its lawsuit that the foam was applied to fires and on spilled fuel in an effort to prevent fires at its refinery and associated facilities in Carter and Murray counties, the suit states.
However, the foam contained or had chemicals that broke down into a family of synthetic compounds containing bonded fluorine and carbon known as long-chain per- and polyfluoroalkyl substances, often referred to as “PFAS.”
Long-chain PFAS chemicals, such as perfluorooctanoic acid (PFOA), perfluorooctanesulfonic acid (PFOS) and GenX, have been the subject of class-action lawsuits and have recently come under intense scrutiny by Congress, the U.S. Environmental Protection Agency and some state regulators.
The chemicals have been found in drinking water, soil and air, especially near plants that manufactured good with PFAS. Though the EPA has yet to set any legal maximum safety limit for PFAS in water systems, it has indicated it may do so.
Often referred to as “forever chemicals” that take thousands of years to break down, these man-made chemicals also accumulate in living organisms. Possible health effects in humans exposed to high levels of PFAS include increased risk of cancer, liver damage, increased cholesterol levels, increased risk of thyroid disease, decreased antibody response to vaccines, decreased fertility, developmental effects in infants and lower infant birth weights, though some companies dispute whether the chemicals are harmful to humans.
Most people in the United States and around the world have some level of PFAS in their blood.
Long-chain PFAS chemicals were developed by DuPonte in the 1940s. Because of their oil and water-repelling properties, PFAS have been applied to a wide array of products, such as water-repellant clothing, Scotchgard, food packaging, carpeting, paint, non-stick pans, waxes, dental floss and numerous other products. Those chemicals are also present in fire-suppressing foam used by firefighters, the military and, in Valero’s case, at oil refineries.
Though PFOS and PFOA were voluntarily phased out by the manufacturers, there are around 5,000 known varieties of chemicals considered to be PFAS.
The companies named in the suit “together controlled substantially all of the market in Oklahoma for AFFF products” or supplied the chemicals used in AFFF through industry coalitions and trade associations “in order to purposefully target Oklahoma as a market for AFFF products and profit from that market,” the Valero lawsuit states.
The EPA and state agencies are currently drafting regulations, Maximum Containment Levels in drinking water and cleanup requirements for PFAS compounds, as well as listing PFOS and PFOA as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act, the suit states.
In addition, the state of Oklahoma supports making certain PFOA and PFOS compounds “Superfund hazardous substances in order for EPA and/or states to use Superfund authority to address contaminated groundwater and surface water,” the lawsuit states.
That, according to the lawsuit, will cause Valero to incur costs to address the environmental and health issues created by the AFFF products used and stored at its Ardmore refinery, which it purchased in 2001.
Attorneys and spokespeople for Valero, DuPont and Buckeye Fire Equipment, did not return requests for comment from The Frontier on Friday. A spokeswoman for Kidde-Fenwal Inc. said the company does not comment on pending litigation.
“3M acted responsibly in connection with its manufacture and sale of AFFF (aqueous film-forming foam) and will defend its record of environmental stewardship,” 3M Company external communications manager Fanna Haile-Selassie said in a statement to The Frontier.
In a statement to The Frontier, Chemours stated that while the company has for the last four years supplied short chain fluorosurfactants to some fire protection manufacturers, it does not manufacture, formulate or sell firefighting foam or PFOS.
“Chemours has never manufactured or used PFOS at any of its sites, nor do we use PFOA in any of our manufacturing processes,” the statement read.
“The (short-chain) component we supplied cannot break down into longer chain substances like PFOS or PFOA. While short chain fluorosurfacants could contain very small amounts of PFOA as an impurity, the total content for the entirety of U.S. sales of our short chain fluorosurfactant would be exceptionally small.”
The suit also accuses the companies of knowing the risks and potential impacts of the chemicals used in the foam and of possibly safer alternative products, but concealing the hazards and issues associated with it and only recently switching to the alternative products in its AFFF products.
And, according to Valero’s lawsuit, in order to protect itself from billions of dollars in liability stemming from the manufacture and discharge of Long-chain PFAS, E.I. DuPont engaged in a series of restructuring transactions, starting with spinoff of its performance chemicals business into Chemours. E.I. Dupont’s was later reorganized and its assets “reshuffled — in order to shield tens of billions of dollars in assets from the PFAS liabilities (E.I. DuPont) tried to quarantine Chemours,” which is now a separate publicly-traded company the suit alleges.
The suit also alleges that the companies spread false information about the safety of the product through a trade group in order to quell concerns about the product.
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