# Washington County Landfill *A closed, publicly owned landfill in Lake Elmo, Minnesota, named in the State's PFAS lawsuit against 3M.* The Washington County Landfill is a closed 35-acre landfill in [[Lake Elmo]], [[Minnesota]]. The Minnesota Pollution Control Agency (MPCA) Closed Landfill Program record was entered as State's trial exhibit PTX2752. It gives the site's permit date as May 12, 1969 and its operations as ending May 1, 1975. It states that the site "was under public ownership when in operation," and that Washington and Ramsey Counties operated it.[^1] The MPCA lists the landfill as one of four East Metro PFAS sites, with 3M's [[Oakdale]], [[Woodbury]] and [[Cottage Grove]] (Chemolite) sites. The MPCA states that the county landfill is handled under the state Closed Landfill Program, not Superfund.[^2] 3M's own disposal list, exhibit PTX1872, gives the site's owner as "Washington County" and records 3M sending "WWTP sludge and boiler ash" there.[^3] The federal [[ATSDR]] public health assessment dates 3M's disposal at the site to 1971–1974.[^4] The State's complaint in [[Hennepin County District Court]] names the landfill as one of four sites.[^5] The case settled in February 2018 for $850 million, paid into a "3M Grant for Water Quality and Sustainability Fund." No county is a party to the complaint or to the settlement agreement.[^5][^6] The settlement agreement releases claims "known or unknown" against 3M. It also states that it is "no admission by either Party of fault, responsibility, wrongdoing, or liability."[^6] According to *Bench & Bar of Minnesota*, the settlement covered only natural resource damages, because the Attorney General concluded her office lacked jurisdiction to pursue personal injury claims.[^7] ## Who The MPCA record names Washington and Ramsey Counties as the site's operators.[^1] 3M's list *Off-Site Waste Disposal Locations — 3M Cottage Grove* names Washington County as the owner.[^3] The suit was captioned *State of Minnesota, by its Attorney General Lori Swanson, et al. v. 3M Company*. Its named plaintiffs are the State, acting through Attorney General [[Lori Swanson]], the MPCA Commissioner and the Department of Natural Resources (DNR) Commissioner. The State sued as trustee under Minn. Stat. § 115B.04.[^5] Neither Washington County nor Ramsey County appears on the face of the complaint or the settlement agreement, and the agreement's release runs to the State.[^5][^6] The State's outside counsel was [[Covington]] & Burling. According to the *ABA Journal*, the firm had represented 3M on fluorochemical matters for more than twelve years, from 1992 to 2006.[^8] ## What The MPCA record describes a 35-acre site holding approximately 2,570,000 cubic yards of waste.[^1] On the face of PTX1872, the waste 3M sent to the site was "WWTP sludge and boiler ash."[^3] Two State exhibits from April 1974 concern 3M's use of the site: - a *Landfill Dry Scrap Project* memo dated April 24, 1974 (PTX1105);[^9] - a *Log of 3M trucks dumping waste at Washington County Landfill* dated April 25, 1974 (PTX1107).[^10] The Attorney General's index of State's exhibits lists roughly 280 3M internal documents dated 1948 to 1983.[^11] The complaint names four compounds: PFOA, PFOS, PFBA and PFBS.[^5] ## When - **May 12, 1969** — The site is permitted.[^1] - **1971–1974** — 3M disposes of waste at the site, per the ATSDR assessment.[^4] - **April 24–25, 1974** — The dates of the 3M dry-scrap memo and the truck log.[^9][^10] - **May 1, 1975** — Operations end.[^1] PTX1872 prints the years of use as "Mid 1970s/Early 1990s," a range that runs past this closure date. The MPCA record and the ATSDR assessment give the dates stated above, and the pack does not reconcile the three.[^1][^3][^4] - **August 22, 1975 – August 3, 1977** — The span of 3M's chronology *Fluorochemicals in Blood* (PTX1144).[^12] Its entries record: - a spectrum matched to PFOS on November 6, 1975; - lab personnel at 10 to 100 times normal in April 1976; - Chemolite workers with organically bound fluorine at up to 1,000 times normal on June 29, 1976, persisting "for an indefinite period"; - identification of the compound in human blood on August 26, 1976.[^12] - **October 19, 1977** — L.C. Krogh sends J.D. La Zerte a memo, *Presentation to Corporate Responsibility Committee on Progress – Fluorochemicals in Blood* (PTX1145). The memo concerns 3M's [[Corporate Responsibility Committee]].[^13] - **1981** — The MPCA begins pumping and spray-aerating groundwater at the landfill, as reported by the *Minnesota Reformer*.[^14] - **October 24, 1984** — A Response Order by Consent is entered with the MPCA.[^1] - **January 16, 1992** — The EPA issues an administrative order under CERCLA § 106(a). It is amended February 17, 1993.[^1] - **January 8, 1996** — A Notice of Compliance is issued.[^1] - **March 15, 1996** — The EPA order is terminated.[^1] - **2000** — 3M announces a plan to stop PFOS production.[^5] - **Late 2002** — PFOS production in Minnesota ceases.[^5] - **2007** — The [[2007 Consent Order]] is entered.[^15] - **December 2010** — The State's complaint is filed. It is amended in November 2011.[^5][^16] - **February 20, 2018** — Jury selection opens and the case settles the same day.[^17][^6] - **August 2021** — The MPCA announces the final allocation of the settlement, as reported by the *[[Star Tribune]]*.[^18] ## Where The landfill is in Lake Elmo, in Washington County. PTX1872 also calls it the "Lake Jane Landfill."[^3] The MPCA lists the landfill as one of four East Metro sites, with 3M Oakdale, 3M Woodbury and 3M Cottage Grove (Chemolite). The agency states that disposal took place "from the 1950s through the early 1970s."[^2] The MPCA states that the county landfill is handled under the state Closed Landfill Program, not Superfund.[^2] The MPCA's own site record also documents an EPA administrative order for the site under CERCLA § 106(a). That order was in force from January 1992 until its termination in March 1996.[^1] ## How The *Minnesota Reformer* reported in 2023 on the State's response to the site: - Beginning in 1981, the MPCA treated volatile organic compounds and heavy metals at the landfill by pumping contaminated groundwater and spray-aerating it. - Former MPCA hydrogeologist Mark Toso told the paper: "You're blasting this stuff into the air." - According to the paper, the process spread PFAS more widely and into private wells. - State officials told one Lake Elmo household in 1999 that its water was safe. PFAS was found in the household's well in 2006. - The State supplied bottled water and offered a $2,500 carbon filter. It declined to extend city water, which was estimated to cost $247,000.[^14] Under the 2007 Consent Order, 3M became responsible for safe drinking water and for site cleanup. The MPCA's presentation to the Association of State Drinking Water Administrators (ASDWA) reports that 3M excavated soil and sediment at its own three sites from 2008 to 2012. It placed over 100,000 cubic yards of that material in a dedicated 3M cell at the SKB Industrial Landfill.[^15][^19] The complaint pleads six counts: - the Minnesota Environmental Response and Liability Act (MERLA); - the Minnesota Water Pollution Control Act; - trespass; - common-law nuisance; - statutory nuisance; - negligence. The case was docketed as No. 27-CV-10-28862.[^5][^16] *Minnesota Lawyer* reported that the State sought $5 billion and added punitive damages in November 2017. It also reported that the case settled on the day jury selection opened before [[Judge Kevin S. Burke]].[^17] The settlement agreement provides: - the $850 million is payable within fifteen days of the Effective Date (¶ 13); - the MPCA and/or DNR are designated to use the funds (¶ 14); - a [[Working Group]] is established, "consisting of representatives of the MPCA, the DNR, East Metropolitan Area municipalities, and 3M" (¶ 17); - claims relating to PFC manufacture, distribution and environmental release are released (¶ 18); - Judge Burke is designated "Consensual Special Magistrate" upon his retirement (¶ 25).[^6] *Minnesota Lawyer* quoted Swanson: "We have our own problems in Minnesota with regulatory agencies captive to the industries they regulate."[^17] *Bench & Bar* reports that no personal injury claims were pursued in the case.[^7] According to the *ABA Journal*, 3M knew of Covington's prior representation by early 2011 but did not object until April 2012. The district court disqualified the firm in October 2012.[^8] 3M separately sued the firm in federal court, as *3M Company v. Covington & Burling LLP*, D. Minn. No. 0:12-cv-01800.[^20] On April 30, 2014, in Nos. A12-1856 and A12-1867, the Minnesota Supreme Court held that attorneys have independent standing to appeal a disqualification. It remanded the matter for an inquiry into waiver.[^21] On remand, Judge John McShane ruled on February 5, 2016 that Covington could continue, citing 3M's "extraordinarily long delay." He also found that Covington "received specific facts that are not only relevant to the case but which go to the core legal issues in the case."[^8] ## How much - **2007 Consent Order:** an $8 million grant for remediation of the Washington County Landfill and a $5 million grant for statewide PFAS environmental studies.[^15] - **2018 settlement:** $850 million, against the $5 billion sought.[^6][^17] - **Final allocation (August 2021, as reported by the *Star Tribune*):**[^18] - $700 million for drinking water; - $125 million for outside legal counsel, assessments and analysis; - $34 million for expedited projects; - $20 million for natural resource remediation; - $4.8 million for reimbursement of agency costs. - **Covington's fee:** *Bloomberg Law* reports that the $125 million was approximately 14% of the recovery, under a contingency arrangement reached in 2010. At a March 5, 2018 House Ways and Means hearing, Rep. Sarah Anderson asked "why we are paying a law firm $125 million for seven years of work."[^22] - **Agency reimbursement:** the MPCA's own ASDWA presentation records the $125 million plus $4.5 million reimbursing 2017 costs. The *Star Tribune*'s report gives $4.8 million for agency cost reimbursement.[^15][^18] ## How many The MPCA's East Metro page states that contamination spans "more than 150 square miles" and affects the drinking water of "more than 140,000 Minnesotans."[^2] *Bench & Bar of Minnesota*, an undated bar-journal source ranked below the agency, gives "over 100 square miles of groundwater" and "approximately 125,000 or more Minnesotans."[^7] The complaint and the MPCA both name four sites.[^5][^2] In February 2018, the month the trial opened, the [[Minnesota Department of Health]] issued its *Brief Update on Cancer Occurrence in East Metro Communities*. The report covered eight communities using 1988–2012 data, with some analyses extending to 2016. It found: - female breast cancer elevated 7% in Washington County and 12% in Oakdale; - melanoma elevated 13% in Washington County; - chronic lymphocytic leukemia elevated 28% in Washington County; - one significant result among 12 childhood-cancer comparisons, a 56% excess for ages 0–19 in Oakdale in 1999–2014. The same report states that its findings "cannot be used to either identify or refute potential adverse health effects from environmental contaminants."[^23] ## In the at-issue record The first at-issue item pairs 3M's chronology (PTX1144) with the company's disposal and production record. The chronology's entries run from August 22, 1975 and record the June 29, 1976 worker blood findings. The findings were the subject of a presentation to the Corporate Responsibility Committee in October 1977.[^12][^13] The item places the end of 3M's disposal at the landfill in 1974, which matches the ATSDR's 1971–1974 window.[^4] It places the end of PFOS production in Minnesota in late 2002.[^5] As documented, the sequence runs as follows. The disposal window and the site's May 1, 1975 closure both precede the chronology's first entry. Minnesota PFOS production continued for about twenty-five years after the 1977 presentation. The record carried here does not establish what 3M knew during the 1971–1974 disposal years.[^1][^4][^5][^12] The second at-issue item pairs the MPCA's ownership record with 3M's list. The State agency records public ownership and operation by Washington and Ramsey Counties.[^1] 3M's list names Washington County as owner and records 3M's sludge and ash going to the site, from 3M's Cottage Grove operations ([[Cottage Grove plant]]).[^3] ATSDR's disposal window falls inside the 1969–1975 permitted period.[^1][^4] The county that both records identify was not a party to the 2018 settlement.[^5][^6] ## Notes [^1]: Minnesota Pollution Control Agency, *Closed Landfill Program record, Washington County Landfill* (State's trial exhibit PTX2752, *State of Minnesota v. 3M*) — permitted May 12, 1969; operated to May 1, 1975; 35 acres; ~2,570,000 cubic yards; public ownership; operated by Washington and Ramsey Counties; Response Order by Consent Oct. 24, 1984; EPA CERCLA § 106(a) order Jan. 16, 1992, amended Feb. 17, 1993; Notice of Compliance Jan. 8, 1996; EPA order terminated Mar. 15, 1996. https://www.ag.state.mn.us/Office/Cases/3M/docs/PTX/PTX2752.pdf [^2]: Minnesota Pollution Control Agency, *East Metro 3M PFAS contamination* (agency web page) — four sites; "more than 150 square miles"; "more than 140,000 Minnesotans"; disposal "from the 1950s through the early 1970s"; county landfill under the state Closed Landfill Program, not Superfund. https://www.pca.state.mn.us/local-sites-and-projects/east-metro-3m-pfas-contamination [^3]: 3M, *Off-Site Waste Disposal Locations — 3M Cottage Grove* (State's trial exhibit PTX1872) — Washington County Landfill / "Lake Jane Landfill"; owner "Washington County"; "WWTP sludge and boiler ash"; years of use printed "Mid 1970s/Early 1990s." https://www.ag.state.mn.us/Office/Cases/3M/docs/PTX/PTX1872.pdf [^4]: Agency for Toxic Substances and Disease Registry, *Public Health Assessment, PFCs in Lake Elmo* (Aug. 29, 2008) — dates 3M's disposal at the Washington County Landfill to 1971–1974. https://www.atsdr.cdc.gov/HAC/pha/PFCsLakeElmo/PFCs_in_Lake_Elmo_PHA_8-29-2008_508.pdf [^5]: H