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April 28, 2022 - RFK Jr. The Defender
30:16
Suing 3M Company with Bill Matsikoudis

Attorney Bill Matsikoudis discusses suing The 3M Company with RFK Jr in this episode.

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Hey, everybody!
My guest today is Bill Matsakudis, who is an old friend of mine, as well as a colleague.
He is the co-founder of the law firm Matsakudis& Fanachullo, which is a public interest law firm in New Jersey.
He's represented major cities in lawsuits against corporate polluters and individuals who've been injured by corporate greed.
He's been involved in politics most of his life.
Bill was the Jersey City Corporation Counsel.
He served as Deputy Attorney General, Senior Deputy Attorney General in New Jersey, and as Assistant Counsel to New Jersey's Governor.
He has been repeatedly named among New Jersey's most influential political figures.
I wanted to get you here today, Bill, to talk to you about your 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 had been injured by PFOAs that were released by DuPont.
DuPont denied everything.
That litigation took about 12 years.
In the end, we settled the case for $633 million.
The 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.
Almost all Americans now have some level of PFOAs in their blood.
And once it gets in you, it's there forever.
It's called a forever chemical.
It recycles and constantly causing damage and inflammation to your body, and it never leaves.
And part of your case in the Scotchgard case kind of was the organic successor to what we did in...
Not 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.
So tell us what happened.
Yeah.
Well, maybe break it off into some bits because it's a little complex.
But first, talk about the importance of that settlement that you were just referring to.
Let me just give people background on BFOAs.
In our case, DuPont really developed BFOAs to make Teflon and invented pans that were stick-free.
And 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.
3M and other companies also use different forms of that chemical compound to create waterproofing and flame retardants and a bunch of other products.
I didn't mean to interrupt you.
No, free-flowing discussion, yeah.
The PFAS now is the general grouping.
They 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?
Because it's got eight carbons in the chemical compound.
So...
3M 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.
And 3M In addition to PFOA, in fact, they actually use PFOS more than PFOA, but they use both.
And 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.
And 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.
But why did we sue?
Because 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.
And 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.
And 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.
I 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.
And, 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.
This is not a problem limited to the United States by any stretch of the imagination.
You have major PFAS problems throughout Europe.
In 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.
There's nothing with the power of law that says that this is a hazardous chemical.
That sets a minimum, what they call an MCL, a minimum contaminant level.
Although there are advisory levels for some years with regard to PFOS and PFOA. I mean, in our case, EPA is a captive agency.
And when it comes to companies with these politically powerful companies like DuPont and 3M, EPA is just a subsidiary of those companies.
And throughout our case, EPA was really the enemy.
EPA, just like it was in the Monsanto case, EPA was clearly on the side of the polluters.
And, you know, it just complicates these, makes these cases much, much more difficult.
Because that's something, that relationship is very, very difficult to explain to a judge.
It's not that the judges don't understand it.
It's just that that kind of evidence is easy to get excluded and very, very difficult to get included.
Yeah, and look...
I'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.
The person at the helm does change, right?
And 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.
But nonetheless, there's a new EPA administrator right now.
We'll see what he does.
He was in North Carolina.
I'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.
But yeah, he let the hog industry, industrial hog farms like Smithfield and Murphy farms, pollute every waterway in the state.
He gave free range to the coal industry and coal burning power plants.
Duke Energy is the worst record of any utility in this country.
And the Southern Company are in water pollution.
So I and and by the way, The EPA has a very corrupt institutional culture.
When 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.
So the head of that division and the agency that was literally working for Or the polluter.
And in this case, in our case, in DuPont, EPA had to do a study in which they said, you know, we had a Mr.
Tennant, who was our original plaintiff, whose cows all died.
And the cows, you know, when they opened up the cows, their guts were literally liquefied.
And the EPA study came and said he was a bad farmer.
That's why the cows died.
And of course, the reason they died is because they were drinking from the creek.
That was contaminated with BFOAs.
Yeah, 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.
But 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.
Not only cancers, like testicular cancer, kidney cancer, but also birth defects, autoimmune diseases.
And this is still what they call an emerging chemical.
The science on it is still developing.
But 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.
New 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.
So 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.
So, 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.
Our case sought injunctive relief.
Our 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.
I 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.
Even they have caught on to that.
Let 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.
In other words, the people who are fishing are also eating the fish.
And 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.
And what I would say to you is that's the opposite of a good result.
A good result is to tell the company, listen, if you want to add Beef ass to your fish.
Your executives like that idea and they should add it themselves at home.
Don't put it in our fish.
I hear you.
The 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.
They're not owned by the corporations.
They're not owned by the government.
Everybody has a right to use them.
Nobody can use them in a way that will diminish or injure their use and enjoyment by others.
That's what the law says.
So when that company wins 3M, Puts pollution in your order.
They are committing an act of theft.
They are privatizing a publicly owned resource and they're stealing it from the public.
It's just like a thief robbing your bank.
And that's how they ought to be punished.
And instead, you have an agency that just tells people, well, don't go to the bank anymore.
You know, don't take your money out of the bank anymore because it's been stolen by somebody else.
And now we've done our job.
That's what ADEM does.
And by the way, I one time sued 20 companies in the state of Alabama.
I 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.
And then they made sweetheart deals with those companies where none of them paid a dime and none of them did clean up.
So that agency is there to protect the polluters, not to protect the public.
And everybody in Alabama knows that.
There's not a single person living in Alabama who thinks ADEM is there to protect the public with a fish.
Yeah.
It's a criminal enterprise, all of it.
And this is, you know, these were some of the issues that we were, you know, struggling and dealing with.
We had some similar sort of situations going on.
And, you know, that's just to say that, look, here you have a company, 3M, sitting literally on the Tennessee River for...
Decades and decades, creating these chemicals that are now rendered the fish uneatable.
So, you know, our goal in the lawsuit was to try to bring about a day when you could eat the fish, right?
And 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.
And What you have to prove is that there's imminent and substantial endangerment of human health or the environment.
That's the sort of the buzz phrase of the statute.
So 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.
And you're able to point to different studies.
You're able to bring in experts to talk about this.
And 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.
When 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.
There's a company right next to it that's based in Japan, Daikin Industries.
And Daikin used PFOA as well.
They didn't make it, obviously, but they used substantial amounts.
They 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.
In other words, no one knows exactly what it is by an agreement that they have with the federal government.
And they're using that now instead of PFOA. All these companies stopped using the PFOS and the PFOA now, going back to...
And 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.
And that's what these companies do.
They take the PFOA chain, they change a single molecule, and they say, this isn't a problem.
And it's innocent until proven guilty.
And it took them 50 years to prove BFOA is guilty.
And that's what they keep doing.
And then they have another barrier where they say, and by the way, it's proprietary, so we're not going to tell you what's in it.
And meanwhile, you know, they're poisoning everybody.
But let me ask you this.
Shouldn't the law act like this?
Since 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?
Shouldn't that be part of the remedy to these cases?
I completely support that as part of the remedy.
Maybe we can get a progressive legislator in Alabama.
I don't think so.
A bill.
There's been a couple over the years.
No, I think that would be great.
I mean, look, our goal is, even though they stopped making PFOS, PFOA, they stopped using it at these facilities.
There's so much of it there.
It's astounding.
Now, they've taken...
And, 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.
You know, people have been involved in some of your case, like Chris Higgins from Stanford.
Why is it there?
Why is it there?
It'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?
They had leaky pits.
They were cheap, and they were lazy, and they knew they could externalize the cost.
They didn't care that they were poisoning everybody in Alabama.
They were poisoning the Tennessee River.
They just didn't care because they could make money by doing it.
And now they're saying, oh, we shouldn't have to clean up.
My attitude is...
Clean it up.
Clean it all up.
Clean up the last molecule because you had no permission.
What you did was illegal.
We do not want it in our fish.
We own the river.
You don't.
If 3M backed a truck full of PFOAs up to my backyard and dumped all their crap into my backyard, what do you think I would do?
I would tell them, clean it up.
And they'd say, here's what they'll do.
They'll come back and they'll say, well, we can clean up 90% of it.
The last 10% is going to cost us $100 million.
And I would say to them, clean it up anyway.
You're going to create jobs by cleaning it up.
There's a whole industry that we're now going to create.
And you know that.
People that are going to come in and clean it up and restore the river to what it used to be, what it's supposed to be before.
Because we own that river the same as I own my backyard.
The public owns that river.
And we ought to be acting the same way and telling this company, You poisoned it.
Our kids play there.
You clean it up.
Even the last molecule.
Yeah, well, hey, that's what the Tennessee River Keeper did.
And that's what we're doing, right?
And it's first and foremost, we filed a lawsuit and said, you dumped this stuff.
You did so in a way that now it's an ongoing threat every single day to human health and the environment, okay?
Because we know that there's pathways from the way they've dumped it on their site.
There's so much of it, the readings of it in the groundwater are...
You 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?
And you know that the monitoring wells around the river are picking up high numbers.
You know that there's an ongoing Contamination.
So it's not like any given day, you know, you just turn off the switch and it's stopped, okay?
And 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.
And The problem is not solved.
We can see that in readings from the surface water.
We can see that in the fish, right?
The fact that there's still in the fish.
So yes, we went out and said, you know, you have to clean this issue up, clean this contamination up.
That's a question though, all right?
Now it may seem sort of A simple thing to say, let's clean up every last molecule, and what does that really mean?
I'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.
I'm not dealing with it, but I'm just talking about how life ought to work and you can reverse the direction of groundwater.
You just put in a pump house and you create a depression in the groundwater.
You pump the water out, clean it up, and you can dump the clean stuff into the river.
Respectfully, I don't think that that's enough here because they're doing some of that stuff.
There's so much groundwater.
Let me say a couple of things.
The first thing when we filed this law Lawsuit, 3M. But the first thing they did was they tried to dismiss the lawsuit.
So we made a little bit of news.
One 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.
There's a couple of landfills that are targets of our lawsuit, multiple.
Some of this, you know, look, there's one right on the 3M plant site, still the 903 acre plant site.
There's one that's owned by the county a little bit away.
And 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.
But 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.
So we suit all these people.
And the first thing they did was they made a motion to dismiss all of them.
And they said, well, if there's PFAS going into the river, they sought a loophole out.
They 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.
And we said, first of all, We disagree.
Secondly, we think a lot of this stuff is getting into the river through other sources, namely the groundwater that's bringing in.
And, you know, thankfully, we had a judge who saw it our way.
I think that the defendants were pretty surprised when we had a victory on that motion, and we proceeded.
I 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.
But, you know, there may be something to that.
You know, we had a really good judge who was appointed by Barack Obama at that point in time.
It got shifted over to a different judge.
But, you know, we had to keep on fighting back things like that.
They 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.
And, you know, we beat them back on that.
And then finally, we entered into, they switched their counsel.
I think you had some interactions with their old counsel, a little brewery guy.
Then 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?
And you talked about like, you know, the treating of the groundwater.
So, 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.
And if a doctor has a patient come walking into their office and they can see, oh, wow, this patient is dawned this.
You know, they're skinny, they're limping.
They know that something's going on.
So how do you resolve it?
Let's say they suspect a cancer.
They 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.
They might want a CAT scan.
They might want a PET scan.
They may want a biopsy, blood test, all these things.
All the experts involved in this case said, look, before we can clean it up, right?
To me, some of this stuff seemed almost simplistic.
Like I was thinking, for example, we're probably going to have to do something with some sediments.
Maybe.
You 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.
But more importantly, if you clean up the sediment today and tomorrow the groundwater is still recharging it with pollutants, what have you accomplished?
So 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.
There's different areas where they used to test firefighting foam.
It was one of the main things that they used.
One 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.
That's sort of step number one.
If 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.
But that also it's got an exposure pathway to the environment and to the fish and such.
And there's different ways of proving that.
But if we wanted to then demonstrate the cleanup, we would have had to have this study done.
We 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.
So the first step is being done here, which is this thorough investigation.
Then that's the first step.
And 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.
What will the cleanup be?
You know, thankfully, Riverkeeper is going to have a voice in that as part of the settlement.
3M is funding a team of experts to work on that.
It's going to be a public, transparent thing.
God willing, we're going to get to the final good results so that someday we won't need the Bobby Kennedy Jr.
bill of 3M, I just caught this fish.
Send me a clean one.
That's what we need to get to, Bill.
That's the only intermediate measure.
I'm hoping that my friends, Dave Whiteside, Mark Martin and I can go out there, catch the fish and eat it down the road.
Even if we get the best possible cleanup done, it's probably going to take some time before that happens.
Bill Mazzacudas, thank you so much for joining us.
Bobby, thank you for having me on.
And thanks for everything that you do, Bill.
Keep fighting until you get those free fish being sent to those guys.
And you and I are going to eat a largemouth bass one day from the river itself.
All right.
Okay.
Take care.
Thank you, Bill.
Bye-bye.
Thank you all.
Good job, Bill.
Thank you.
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