The city of Lake Elmo has decided to withdraw from the state’s case against 3M Co. over PFCs in the east metro area, dealing a second setback in recent weeks to the nearly 3-year-old lawsuit.
Instead, the city has entered an agreement to discuss issues surrounding perfluorochemicals directly with the company instead of through the courts, said Dean Zuleger, Lake Elmo’s city administrator.
“We have a new City Council and a new mayor who believe in being more collaborative rather than confrontational,” Zuleger said, adding that hundreds of city residents are employed at 3M’s corporate headquarters campus in nearby Maplewood, and that the company maintains its Tartan Park golf course and recreational area in the city.
“We want to sit down and talk in a non-litigious way, and we’re looking forward to establishing a new relationship [with 3M].”
Lake Elmo is one of four communities — the others are Woodbury, Oakdale and Cottage Grove — where PFCs were legally dumped for decades.
The family of chemical compounds was developed by 3M in about 1950 for use in consumer products until the company stopped producing and using them in 2002, although other firms continue to do so. They’re still found in such things as fast-food wrappers and in products treated with Teflon, Stainmaster and Gore-Tex.
The three other cities also had been asked by the attorney general’s office to join the state’s lawsuit, filed against the company in December 2010, but they declined. Like Lake Elmo, hundreds of residents in those communities work at the company headquarters, and a 3M plant in Cottage Grove employs about 700 people.
The state is seeking damages from alleged harm, and potential future harm, to the environment from the PFC dumping. 3M, which estimates it has spent $100 million to clean up sites in the four communities, asserts that the compounds pose no risk to people at levels typically found.
In civil cases, parties indirectly involved in litigation that asserts they have a stake in a lawsuit’s outcome can join as an intervenor. The Metropolitan Council is now the only intervenor left with the state in the case against 3M.
State: No change to case
The agreement between Lake Elmo and the company still holds protections for the city, Zuleger added, including efforts to monitor the presence of certain types of PFCs around the Washington County landfill site where the compounds were dumped. A major cleanup was begun after traces of PFCs were found in well water.
“The voluntary dismissal of the claims is no surprise to us, given our view that they lack merit,” said William Brewer III, lead counsel for 3M. “When Lake Elmo approached us about dismissing the claims, we were happy to accept and commit to that which we do already — help monitor for the environmental presence of PFC compounds.”
Ben Wogsland, spokesman for the attorney general’s office, said that Lake Elmo’s withdrawal “doesn’t change our claims of damages to the state’s natural resources.”
Along with establishing a better working relationship with the company on the PFC issue, Zuleger said the prospect of a prolonged legal battle had a bearing on the City Council’s unanimous vote to drop out of the lawsuit. The city has spent $37,000 in legal fees to review the work of the attorney general’s office in its role as a party to the lawsuit.
Law firm disqualified
Last month, the Minnesota Court of Appeals dealt a blow to the state’s case when it disqualified its law firm, Covington & Burling, from being its legal counsel. The three-judge panel found that the Washington, D.C., firm had violated rules of professional conduct by not properly notifying 3M — which it had represented on PFC-related matters before government regulators — that this time it was going to take the state’s side of the legal fence.
Covington had taken the state’s case on a contingency basis. Under the law firm’s deal with the state, aside from expenses such as travel and meals, it would collect 15 percent of any pretrial settlement with 3M exceeding $150 million and 20 percent of settlement amounts more than $150 million after the trial has started, documents show. The percentage collected by the firm would increase as the potential settlement amount declined.
The state has appealed that decision to the Minnesota Supreme Court. A decision on whether the high court will review the case is expected soon, but the process — which has already created a major legal detour in the case — could prolong it for many more months.
If Covington is eventually barred from the case, which has generated more than 6 million pages of documents, the state could be forced to start from scratch.