3M to argue Australia's $1.4 billion 'forever chemicals' lawsuit legally flawed, court hears

By Christine Chen

SYDNEY, Oct 16 (Reuters) - US conglomerate 3M plans to argue a landmark case brought by Australia over contamination from the company's use of PFAS "forever chemicals" in its firefighting foam is legally flawed, a court heard on Friday. 

The claim against the Minnesota-based chemicals maker and its local unit is the largest ever brought by ​Australia, and seeks more than A$2 billion ($1.38 billion) in damages for past and future costs of contamination across 28 military bases where 3M's products were used.

Australia's case is that 3M knew or ought to have known the foam it made and supplied could damage the environment and harm people, but it failed to warn the government.

The foam's pollution interfered with people's ability to use and enjoy the water and land around the bases, creating what the government says amounted to a "public nuisance" under Australian law for which 3M should pay compensation.

"On Australian authority, the pleaded case does not comprise public nuisance," 3M's barrister Philip Solomon said at the first case management hearing for the lawsuit on Friday.

"The allegation against us alleged that we, the respondents, had the means to abate the nuisance, that we caused the nuisance, that were responsible for the particular or the special loss associated with the nuisance, and that in a broad sense, we had the ability to control the discharge of the nuisance," he added.

"We will in a number of pages set out why public nuisance as pleaded is not available."

In its defence, expected to be filed on December 11, 3M also plans to question whether another part of Australia's case — that the company breached consumer protection laws by making misleading claims about the foam's features and safety — was time-barred because the alleged conduct occurred decades ago, Solomon said.

PFAS are a group of manufactured chemicals that are widely used in products resistant to heat, stains, grease and water.

Research has linked exposure to PFAS ​to health issues including liver ​damage, lower birth weight ⁠and testicular cancer.

3M, which has faced thousands ​of lawsuits over alleged PFAS contamination, sold the firefighting foam in Australia from 1966 to 2003.

Australia has spent A$1.3 billion in dealing with the impacts of the contamination on the bases, including paying A$408 million in ​legal settlements to affected communities.

The defence department has also treated or removed more than 200,000 ​metric tons ⁠of contaminated soil and treated more than 13 billion litres of water.

The case will return to court in December. 

($1 = 1.4445 Australian dollars)

(Reporting by Christine Chen in Sydney; Editing by Kate Mayberry)