Citizens' board gives 3M a victory in chemical controversy

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During a hearing that lasted more than eight hours on Wednesday, the arguments for and against the designation were presented dozens of times.

MPCA staff argued that the hazardous substance declaration would give the agency the authority it needs to make sure that PFC contamination is cleaned up quickly.

Remediation supervisor Kathryn Sather said the agency believes the chemicals are a serious threat because they're in the groundwater. She showed the board a chart listing the highest concentrations of PFOS and PFOA detected in each of the 3M sites.

At the former Oakdale disposal site, for example, the groundwater reading for PFOA registered as high as 23,700 parts per billion. In contrast, Sather pointed out that the safe level for human exposure in drinking water established by the Health Department is .5 parts per billion.

"We believe there is considerable evidence that there is a substantial present or potential threat due to the releases of PFOA and PFOS at the three sites," Sather said. "These releases meet the statutory definition of hazardous substances because they pose a substantial present or potential hazard to human health."

But 3M disagreed. Attorney Bob Cattanach said the chemicals have no proven adverse effects on humans at the levels present in the environment.

He also said the chemicals do not meet the state's definition of a hazardous material because they're not ignitable, corrosive, reactive, toxic, lethal or an oxidizer.

3M said the chemicals do not meet the state's definition of a hazardous material because they're not ignitable, corrosive, reactive, toxic, lethal or an oxidizer.

Cattanach argued that if board members declared the substances hazardous releases, it would wrongly expose the company to unnecessary liability.

"The minute we agree to anything that says it is, we've gone down a path that, with respect, is legally incorrect, legally unsupportable and creates all sorts of issues," he said.

Cattanach told the board that 3M does not want to fight with the MPCA over this issue. He suggested instead that the agency and the company work together on a binding agreement to clean up the chemicals that doesn't refer to them as hazardous substances.

That option appealed to several board members, including Donald Schiefelbein.

"I believe 3M has been a good company. I think they've been a good employer. And we've heard pretty good referrals from a couple of mayors that their good will has not gone unnoticed," said Schiefelbein. "I would like to concur, and give the commissioner 30 days or the agency 30 days to come up with a workable consent agreement."

Board members voted 6-3 in favor of giving 3M time to come up with a cleanup plan.

After the vote, 3M spokesman Bill Nelson said the company was grateful for the extension.

"It was just an excellent testament to the public process. 3M provided input, there was input from the community and from the legislators," Nelson said. "And I think the comments we heard from the board tonight just indicate this process is working. So we look forward to negotiating a consent order with the commissioner."

MPCA Commissioner Brad Moore was disappointed with the vote. But he said he would do his best to negotiate a good agreement with 3M.

"I think the negotiation will be challenging. That said, the board members made it very clear the areas we want us to look at. I'll give it my best in terms of a good faith effort," said Moore.

Moore and 3M technically have only 18 days to negotiate their agreement. That's because MPCA rules require that Citizen's Board members have 10 days to review the documents before their next meeting in May.

If 3M and the commissioner can't come up with an agreement, board members say they will vote on the hazardous substances designation.