Bill Matsakudis, who is an old friend of mine, as well as a colleague, is the co-founder of the Matsakudsis/Fanachullo Law Firm, a public interest law firm in New Jersey. He has represented major cities in lawsuits against corporate polluters, and individuals who have been injured by corporate greed. He s been involved in politics most of his life, and served as the Jersey City Corporation Counsel. He served as Deputy Attorney General, Senior Deputy AG, and as Assistant Counsel to New Jersey s Governor. I wanted to get him here to talk to you about his victory in the 3M Scotchgard Case in Decatur, Alabama for the pollution of the Tennessee River with PFOAs. And as you know, I was part of the legal team that brought the original PFOA case in West Virginia and Ohio that was featured in the Mark Ruffalo film, "Dark Waters." And we had 3,500 clients who were injured by PFOas that were released by DuPont. DuPont denied everything. After 12 years of litigation, we settled the case for $633 million. But why did we sue? Because we thought that chemical represents a health threat. And your lawsuit led to a settlement that led to the health monitoring that led us to that settlement. And it s depicted in the movie, "Dawn of the Dark Waters," and it s been on the front pages of the New York Times and other publications. since then, since then. And since then there s been more and more studies on the dangers of PFOAA s in our bodies of water. And now we know that they re a cancerous compound. And they re in fact. And there s a lot more dangerous than we thought. . In this is a story about a chemical that s been around for a long, long time, and now we re going to find out if it s actually a cancer-causing compound or not and we re gonna get to the bottom line on it. ... in this episode, we re talking about the problem and why we should we be worried about it s in the water supply? is a lot of people s blood, and why it s a problem, not just in the first place it s everywhere else not just on the surface on the ground but in the bodies of fish, and in the fish everywhere else.
00:01:28.000In the end, we settled the case for $633 million.
00:01:35.000The most important thing we got out of that case was a mandate for the company to To do medical monitoring and to do a real study on the medical implications of having PFOAs in your blood is now in the blood supply.
00:01:53.000Almost all Americans now have some level of PFOAs in their blood.
00:01:59.000And once it gets in you, it's there forever.
00:02:04.000It recycles and constantly causing damage and inflammation to your body, and it never leaves.
00:02:11.000And part of your case in the Scotchgard case kind of was the organic successor to what we did in...
00:02:21.000Not only were you representing Tennessee Riverkeeper, which is one of 350 waterkeeper organizations, but a lot of the science in your case was based upon this medical monitoring data that came out of the Dark Waters case, the DuPont case.
00:02:42.000Well, maybe break it off into some bits because it's a little complex.
00:02:47.000But first, talk about the importance of that settlement that you were just referring to.
00:02:53.000Let me just give people background on BFOAs.
00:02:56.000In our case, DuPont really developed BFOAs to make Teflon and invented pans that were stick-free.
00:03:06.000And it turned out that people who used Teflon pans were getting these terrible headaches, and it actually was from breathing the BFOAs that were volatilizing while they cooked, but also the factory where they were manufacturing it was releasing it into the water supply, and that's what we sued about.
00:03:25.0003M and other companies also use different forms of that chemical compound to create waterproofing and flame retardants and a bunch of other products.
00:03:46.000They used to call it back in the day when you had that case, PFC, you know, peripheral arachyl substances, and they used to call PFOA more than C8, right?
00:03:57.000Because it's got eight carbons in the chemical compound.
00:04:01.0003M was really the brain, if you will, behind the discovery of these chemicals, which had a lot of good chemical uses, but the cost of the health consequences far outweighed it.
00:04:14.000And 3M In addition to PFOA, in fact, they actually use PFOS more than PFOA, but they use both.
00:04:23.000And they used it and made it there for many, many years on a plant that is 900 acres that sits right on the Tennessee River.
00:04:34.000And the Tennessee River is a beautiful river, and you wouldn't know it by looking at it, but it's got A lot of these chemicals, unfortunately, continuing to flow in it from this site.
00:04:47.000Because we thought that the PFOS and PFOA and other PFAS, because there's actually many, many PFAS that were used at that site in lesser amounts.
00:04:56.000And there's really so many different subcategories now of PFAS. But the first thing we had to, the reason why we sued is because while we thought that This chemical represents a health threat.
00:05:08.000And your lawsuit, and it's depicted in dark waters, led to that settlement that led to the health monitoring health tests that did correlate, really, for the first time, cancers to this, and especially in the workers in that area.
00:05:24.000I think that I've heard some people say that had DuPont understood that that was the result, they would have tripled the $600 million maybe, because instead of letting that health study take place, because that has been far more consequential to them on the bottom line.
00:05:40.000And, you know, since then, there's been a lot of academic studies to ascertain the impact of PFAS, no surprise that the companies still reject the peer-reviewed science that's been out there in so many different universities across the world.
00:05:59.000This is not a problem limited to the United States by any stretch of the imagination.
00:06:04.000You have major PFAS problems throughout Europe.
00:06:07.000In Australia and such, yet nonetheless, you know, the EPA, although they're in the process of fully regulating PFAS, so far it's not a regulation.
00:06:20.000There's nothing with the power of law that says that this is a hazardous chemical.
00:06:25.000That sets a minimum, what they call an MCL, a minimum contaminant level.
00:06:30.000Although there are advisory levels for some years with regard to PFOS and PFOA. I mean, in our case, EPA is a captive agency.
00:06:40.000And when it comes to companies with these politically powerful companies like DuPont and 3M, EPA is just a subsidiary of those companies.
00:06:51.000And throughout our case, EPA was really the enemy.
00:06:56.000EPA, just like it was in the Monsanto case, EPA was clearly on the side of the polluters.
00:07:04.000And, you know, it just complicates these, makes these cases much, much more difficult.
00:07:08.000Because that's something, that relationship is very, very difficult to explain to a judge.
00:07:15.000It's not that the judges don't understand it.
00:07:18.000It's just that that kind of evidence is easy to get excluded and very, very difficult to get included.
00:07:27.000I'd like to think that the EPA, although there is what some people might call a deep state, there's a bureaucracy and you have a mixture of people that I think are well intended and other people that may not be.
00:07:39.000The person at the helm does change, right?
00:07:42.000And you would think that hopefully, consequentially, the direction of the agency We know that in certain departments that there's a culture that can develop.
00:07:52.000But nonetheless, there's a new EPA administrator right now.
00:07:59.000I'm not an expert on what he did there, but the word is that he did a lot of good work on PFAS because there's a lot of PFAS issues in North Carolina.
00:08:06.000But yeah, he let the hog industry, industrial hog farms like Smithfield and Murphy farms, pollute every waterway in the state.
00:08:16.000He gave free range to the coal industry and coal burning power plants.
00:08:21.000Duke Energy is the worst record of any utility in this country.
00:08:25.000And the Southern Company are in water pollution.
00:08:29.000So I and and by the way, The EPA has a very corrupt institutional culture.
00:08:35.000When we did the Monsanto case, The head of the pesticide division was secretly working for Monsanto and we ended up getting their emails in which he said that he killed a study by another agency and then he wrote a note to Monsanto saying, I ought to get a medal for this because I saved you once again.
00:08:57.000So the head of that division and the agency that was literally working for Or the polluter.
00:09:04.000And in this case, in our case, in DuPont, EPA had to do a study in which they said, you know, we had a Mr.
00:09:15.000Tennant, who was our original plaintiff, whose cows all died.
00:09:19.000And the cows, you know, when they opened up the cows, their guts were literally liquefied.
00:09:26.000And the EPA study came and said he was a bad farmer.
00:09:39.000Yeah, well, look, there's, to me, even the EPA state and as part of the process of regulating, it's no question taking too long.
00:09:49.000But even on the EPA website and in the Federal Register, they talk about the evidence of Of the correlation between both PFOA and PFOS and a variety of human diseases.
00:10:03.000Not only cancers, like testicular cancer, kidney cancer, but also birth defects, autoimmune diseases.
00:10:12.000And this is still what they call an emerging chemical.
00:10:15.000The science on it is still developing.
00:10:19.000But the evidence is, I think, pretty clear to most regulated agencies, if you will, even though they may be slow to it for a variety of reasons.
00:10:30.000New states, some states, not the one we're dealing with in this case, have been ahead of the curve and have set standards that are even above and beyond the standard that you're dealing with at the EPA level.
00:10:42.000So an interesting thing about our case is Which is, you know, filed underneath the Resource Conservation and Recovery Act, which enables citizens and like the members of the Tennessee Riverkeeper to sort of serve as private attorneys general, can by law file a lawsuit to seek a cleanup or remediation or other injunctive relief.
00:11:05.000So, you know, our lawsuit was different than your lawsuit, for example, and Almost the great overwhelming majority of cases, now there's so many, so many cases, dealing with PFAS because most cases are seeking money or medical monitoring of some sort, where our case did not.
00:11:30.000Our case sought a process to bring about a remediation so that the PFAS no longer continues to Represent a threat to human health and the environment.
00:11:43.000I mean, right now, although the Alabama Department of Environmental Management hasn't created a standard for PFAS like other states have, they have limited the amount of fish you can eat and barred it to an extent because they know that people will get sick from this stuff.
00:12:02.000Let me say something about that because I lived in Alabama for two years and In that Tennessee watershed, you have among the highest concentration of people who are fishermen who are fishing all the fishers, people who are recreational fishing, and among them is the highest percentage of subsistence fishermen.
00:12:24.000In other words, the people who are fishing are also eating the fish.
00:12:27.000And we live in this kind of science fiction nightmare today where regulatory agencies that are supposed to stop this pollution from getting into the water and contaminating the fish think they have done their job when they just tell people don't eat the fish anymore.
00:12:44.000And what I would say to you is that's the opposite of a good result.
00:12:49.000A good result is to tell the company, listen, if you want to add Beef ass to your fish.
00:12:59.000Your executives like that idea and they should add it themselves at home.
00:13:08.000The public owns the Constitution of the state of Alabama says that the fisheries of the state and the waters of the state are owned by the people of the state.
00:13:18.000They're not owned by the corporations.
00:14:07.000And by the way, I one time sued 20 companies in the state of Alabama.
00:14:13.000I spent two weeks in the files up at ADEM. And as soon as I filed those lawsuits against U.S. Steel, against some of the worst polluters in the country, ADEM came in and filed on top of me, which preempted all my cases.
00:14:32.000And then they made sweetheart deals with those companies where none of them paid a dime and none of them did clean up.
00:14:37.000So that agency is there to protect the polluters, not to protect the public.
00:14:53.000It's a criminal enterprise, all of it.
00:14:56.000And this is, you know, these were some of the issues that we were, you know, struggling and dealing with.
00:15:00.000We had some similar sort of situations going on.
00:15:03.000And, you know, that's just to say that, look, here you have a company, 3M, sitting literally on the Tennessee River for...
00:15:13.000Decades and decades, creating these chemicals that are now rendered the fish uneatable.
00:15:18.000So, you know, our goal in the lawsuit was to try to bring about a day when you could eat the fish, right?
00:15:26.000And so our lawsuit underneath the Resource Conservation and Recovery Act basically, like I said, enables private individuals to act as private attorney generals and to sue in federal court, which is where we sued.
00:15:38.000And What you have to prove is that there's imminent and substantial endangerment of human health or the environment.
00:15:45.000That's the sort of the buzz phrase of the statute.
00:15:48.000So one of the issues that you have there, it was sort of assisted by your previous work, was, well, how do you prove that there's hazardous waste that creates a health threat if It's not regulated by the state or by the federal government.
00:16:05.000And you're able to point to different studies.
00:16:09.000You're able to bring in experts to talk about this.
00:16:11.000And the fact that a company at gunpoint did a study and an analysis that demonstrates that there's correlations to cancer is very helpful to that.
00:16:22.000When we first came into this case, We didn't just sue 3M, by the way, because it's not just 3M that created the PFAS or that has the PFAS in that area.
00:16:33.000There's a company right next to it that's based in Japan, Daikin Industries.
00:16:43.000They didn't make it, obviously, but they used substantial amounts.
00:16:47.000They actually now have a If you're going to like this one, they have a replacement chemical, known to be a PFAS, if you will, one of the family of PFASs, that they're able to keep proprietary.
00:17:03.000In other words, no one knows exactly what it is by an agreement that they have with the federal government.
00:17:09.000And they're using that now instead of PFOA. All these companies stopped using the PFOS and the PFOA now, going back to...
00:17:18.000And what they do is, They're just like drug dealers who are selling synthetic heroin or something, and Congress will say, or the regulatory agency will say, okay, now that drug is illegal, and they just change one molecule on it, and they go back on the street the next day.
00:18:06.000Since the people of the state of Alabama own those fish, Shouldn't they be able to say, as a remedy, shouldn't they be able to say, every time they catch a fish, take a picture of the fish, weigh the fish, send the picture to 3M, and then get a free delivery of fish that are uncontaminated?
00:18:31.000Shouldn't that be part of the remedy to these cases?
00:18:36.000I completely support that as part of the remedy.
00:18:40.000Maybe we can get a progressive legislator in Alabama.
00:19:04.000And, you know, we were lucky to deal with some leading experts on the chemistry of PFAS, leading experts on the hydrology and how it relates from Stanford University, Colorado School of Mines.
00:19:18.000You know, people have been involved in some of your case, like Chris Higgins from Stanford.
00:19:25.000It's there because this company, these criminals, because they didn't want to properly dispose of it, they took it out back and just dumped it into the ground, or they dumped it into the river, right?
00:21:14.000And it's first and foremost, we filed a lawsuit and said, you dumped this stuff.
00:21:20.000You did so in a way that now it's an ongoing threat every single day to human health and the environment, okay?
00:21:28.000Because we know that there's pathways from the way they've dumped it on their site.
00:21:32.000There's so much of it, the readings of it in the groundwater are...
00:21:38.000You don't have to be a so-called expert or a scientist to know that when you have 70 parts per trillion is the standard and you've got millions of parts per trillion, millions of parts per trillion in the groundwater, and you know that the groundwater is flowing in a direction toward the river, okay?
00:21:55.000And you know that the monitoring wells around the river are picking up high numbers.
00:22:01.000You know that there's an ongoing Contamination.
00:22:05.000So it's not like any given day, you know, you just turn off the switch and it's stopped, okay?
00:22:11.000And look, over 20 years, don't mistake this for me saying anything laudatory, because this is before we sued and we still sued, they've undertaken a variety of different band-aids, if you will, to address the problem.
00:22:46.000Now it may seem sort of A simple thing to say, let's clean up every last molecule, and what does that really mean?
00:22:54.000I'll tell you what it means, because I've brought these gun laws, and I know you've done an amazing job on this, and you're working within these limitations, and When I'm talking about this, I'm not working within the limitations of, you know, the political limitations and, you know, the protection racket that these guys are running and the political power they have and even the judicial corruption.
00:23:20.000I'm not dealing with it, but I'm just talking about how life ought to work and you can reverse the direction of groundwater.
00:23:31.000You just put in a pump house and you create a depression in the groundwater.
00:23:37.000You pump the water out, clean it up, and you can dump the clean stuff into the river.
00:23:41.000Respectfully, I don't think that that's enough here because they're doing some of that stuff.
00:23:59.000One of the things that they said, and not only then, because Daikin said it, we also sued a big concern that owns a landfill where a lot of this stuff was dumped.
00:24:08.000There's a couple of landfills that are targets of our lawsuit, multiple.
00:24:12.000Some of this, you know, look, there's one right on the 3M plant site, still the 903 acre plant site.
00:24:16.000There's one that's owned by the county a little bit away.
00:24:19.000And there's one that's pretty far away that's actually much better than the other ones as far as Technologically speaking, and the protections around it, it's much further away from the river.
00:24:29.000But nonetheless, not to get into too many details, but I will say this, leachate from that landfill, which some people say is like gutter juice, it's the stuff that's sort of the liquid that seeps out, they bring that to the Decatur utility and it gets some modest treatment and then goes right into the river.
00:24:49.000And the first thing they did was they made a motion to dismiss all of them.
00:24:54.000And they said, well, if there's PFAS going into the river, they sought a loophole out.
00:25:03.000They said it's going through what they call point source discharges, which don't fall underneath the legal rubric of your statute that you're suing them.
00:25:11.000And we said, first of all, We disagree.
00:25:14.000Secondly, we think a lot of this stuff is getting into the river through other sources, namely the groundwater that's bringing in.
00:25:20.000And, you know, thankfully, we had a judge who saw it our way.
00:25:24.000I think that the defendants were pretty surprised when we had a victory on that motion, and we proceeded.
00:25:30.000I tried, as a lawyer who likes to believe in an independent judiciary, you know, I try not to believe what one politician said, that there are, you know, Bush judges and Clinton judges and Obama judges and Trump judges.
00:25:43.000But, you know, there may be something to that.
00:25:45.000You know, we had a really good judge who was appointed by Barack Obama at that point in time.
00:25:50.000It got shifted over to a different judge.
00:25:53.000But, you know, we had to keep on fighting back things like that.
00:25:57.000They tried to mix our case into one of these multidisciplinary litigation, which is mainly for personal injuries, which would have just slowed down the entire process.
00:26:06.000And, you know, we beat them back on that.
00:26:08.000And then finally, we entered into, they switched their counsel.
00:26:11.000I think you had some interactions with their old counsel, a little brewery guy.
00:26:15.000Then we entered into a mediation and we were lucky to have some of these great experts, but this discussion came about is, so how do you clean it up?
00:26:23.000And you talked about like, you know, the treating of the groundwater.
00:26:27.000So, you know, one of the analogies that I've used to try to explain this, you know, to the public in Alabama and even for myself is, you know, the Tennessee River is like a sick patient.
00:26:38.000And if a doctor has a patient come walking into their office and they can see, oh, wow, this patient is dawned this.
00:26:54.000They don't just say, we're going to do chemo, radiation, whatever they're going to do in operation before they can do some diagnostic studies.
00:27:24.000You know, for one thing, sediment there, this type of chemical may be different than like a PCB or mercury where they stick, they're heavier, they may stick in the sediment.
00:27:34.000But more importantly, if you clean up the sediment today and tomorrow the groundwater is still recharging it with pollutants, what have you accomplished?
00:27:42.000So they said that before we really come up with a cleanup analysis here, the first thing you have to do is get a better understanding of how the PFAS is getting into the river from this massive site and from all the different sources on that site.
00:28:00.000There's different areas where they used to test firefighting foam.
00:28:04.000It was one of the main things that they used.
00:28:07.000One of the things, you know, we achieved in the settlement is there's a very expensive, a very detailed investigation that we're getting split samples on to double check to understand how the PFAS is still getting into the river.
00:28:22.000If this case had, you know, gone to trial as opposed to the settlement that we achieved, you know, we would have had to have proven that, yes, in the first instance, that PFAS is a health risk.
00:28:33.000But that also it's got an exposure pathway to the environment and to the fish and such.
00:28:38.000And there's different ways of proving that.
00:28:39.000But if we wanted to then demonstrate the cleanup, we would have had to have this study done.
00:28:43.000We would have almost had to have asked the judge to order the relief of, A, do this study, and then B, let's figure out the cleanup.
00:28:52.000So the first step is being done here, which is this thorough investigation.
00:28:58.000And then the big question is, which I think is going to be one of the most important environmental questions in the United States of America in the next year and change, Coming months, a lot of stuff is going to be happening.