3M and the Withdrawal of PFOS: TSCA, Product Liability, and the Precautionary Principle

Chris Higgins

Chris Higgins is a Ph.D. student in Stanford University's Department of Civil and Environmental Engineering. He is currently examining the environmental transformation and fate of emerging chemical contaminants such as perfluorooctane sulfonate (PFOS). Mr Higgins received his bachelor's degree in chemistry from Harvard College and worked as an analyst for The Cadmus Group, Inc., an environmental and energy policy consulting firm in Watertown, Massachusetts. This Article was prepared as part of Prof. Armin Rosencranz's course on Environmental Policy and Law, and financial support was provided through a Dean's Graduate Fellowship from Stanford University's School of Engineering.

[33 ELR 10062]

On May 16, 2000, Minnesota Mining and Manufacturing (3M) Company announced its intention to voluntarily phase out its perfluorooctane sulfonate (PFOS)-based line of products from the global chemical market.¹ This announcement surprised many in the industry, as 3M had manufactured PFOS-based products such as Scotchgard TM for nearly 40 years.² In its press release, 3M executives indicated their decision was based on their pursuit of responsible environmental management.³ However, while the scientific information available at the time of 3M's decision certainly indicated the potential for adverse long-term environmental effects due to these chemicals, the evidence was much less damaging than one might expect for it to lead to a decision affecting $ 320 million (roughly 2%) of the company's annual sales.⁴

This Article explores the potential factors that may have contributed to 3M's decision to withdraw PFOS from the global market. Such factors may have included regulatory pressure from the U.S. Environmental Protection Agency (EPA), concerns over long-term liability, and the company's desire to maintain a positive public environmental image through its adoption of the precautionary principle. This analysis will demonstrate that 3M's apparent commitment to responsible environmental management was the major factor leading to its decision, though potential liability issues may have played a minor role. While it may ultimately be impossible to determine the exact relative importance of these various factors, an investigation into these factors is warranted if one desires to encourage such behavior by other chemical manufacturers in the future.

Federal Regulatory and Policy Framework

Though there are a variety of federal statutes designed to protect both human health and the environment from hazardous chemicals, only a few are aimed at addressing non-waste stream chemicals. Because of their ability to repel both oil and water, reduce surface tension, and withstand environments in which other chemicals would readily degrade, PFOS-based chemicals have been used in many industrial and commercial products including carpets, clothing protectants, food packaging, mining surfactants, and fire-fighting foams.⁵ The most relevant statute with respect to 3M's PFOS-based products is the Toxic Substances Control Act (TSCA), enacted in 1976 and designed to address "upstream" chemical hazards.⁶ TSCA enables EPA to regulate new chemicals and chemicals in existence at the time of TSCA's enactment. Under TSCA, 3M's PFOS-based chemicals are considered existing chemicals. The major provisions of TSCA allow EPA to: (1) regulate or ban chemical substances; (2) require reporting of health effect studies; (3) require chemical testing; and (4) regulate the import and export of chemical substances.⁷ The most important of these provisions enables EPA to regulate or ban the manufacture or import of a chemical if EPA determines that the chemical "presents or will present an unreasonable risk of injury to health or the environment."⁸

The regulation of new and existing chemicals is different under TSCA, with greater controls placed on new chemicals.⁹ However, TSCA does provide for mandatory testing of an existing chemical if EPA can demonstrate it may present an "unreasonable risk" or it is produced in quantities such that substantial human exposures or environmental releases may occur.¹⁰ Thus for existing chemicals for which EPA has no data to indicate an "unreasonable" risk may be present, EPA is generally not able to require testing. As a result, EPA has only required testing of a very limited number [33 ELR 10063] of existing chemicals.¹¹ For new chemicals, however, manufacturers must submit premanufacture notices (PMNs) containing data that EPA uses to screen chemicals for possible bans or regulations based on its evaluation of the chemical's potential to cause unreasonable risk or injury.¹² For existing chemicals, no such screening mechanism exists. However, if a manufacturer of an existing chemical conducts analyses that reasonably indicate the chemical poses a "substantial risk" to human health or the environment, the manufacturer is required under TSCA § 8(e) to submit such data to EPA.¹³

Though a nonregulatory program, EPA's efforts to control persistent, bioaccumulative, and toxic (PBT) chemicals may have influenced 3M's decision to withdraw its PFOS-based chemicals. Initiated in 1998, this EPA program seeks to reduce the uses and releases as well as control the disposal of PBT chemicals, which are considered to be some of the most dangerous environmental pollutants.¹⁴ This effort is being coordinated with international efforts to control persistent organic pollutants (POPs), with nearly all of the POPs currently listed as part of the Stockholm Convention on Persistent Organic Pollutants (POP Treaty) also listed as priority PBTs by EPA.¹⁵ However, in addition to addressing priority PBTs, the PBT program is also designed to prevent the introduction of new PBTs into the marketplace. Thus, EPA recently modified its PMN policy under TSCA so that all new chemicals for which PMNs are submitted are evaluated for their PBT-potential.¹⁶ This policy seems to be achieving some success: in a 2000 PBT program progress report, EPA noted that of the 1,650 PMNs screened for potential PBT characteristics, 53 notices were identified as having potential PBT characteristics and received further evaluation. After further analysis, 7 of the 53 substances were dropped from PBT consideration, 11 were banned from use pending further information, and 35 were allowed to be manufactured if adequate controls were implemented pertaining to their environmental releases.¹⁷

Scientific Data

As discussed above, because of their status as existing chemicals under TSCA, 3M was not required to conduct toxicity testing for PFOS-based chemicals. However, as part of an ongoing employee monitoring effort, 3M discovered trace levels of PFOS in blood samples collected from the general population.¹⁸ At this point, 3M took the somewhat unexpected step of informing EPA of its findings as well as consulting EPA for advice and guidance. Though such action would have been required under TSCA § 8(e) had 3M's initial findings reasonably supported the conclusion that these chemicals posed a "substantial risk," neither EPA nor 3M believed these data supported such a conclusion.¹⁹ As will be discussed, this may have been an early indication that 3M was aware of the consequences of not taking a proactive role in discerning the risks its chemicals posed to public health and the environment.

With a desire to better understand the potential risks posed by PFOS, 3M took the additional step of conducting high-dose toxicity tests,²⁰ and providing funding to universities to examine their bioaccumulation and biodegradation in the environment. Although the bioaccumulation and biodegradation studies were conducted at 3M's own initiative, EPA was supportive of these tests as they would help determine whether PFOS, which was being detected in human blood at such low levels that no one anticipated any toxic effects, would persist and eventually bioaccumulate to levels that could be of concern.²¹ In short, such data could be extremely useful in evaluating PFOS-based chemicals for their PBT potential as part of EPA's recently launched PBT program.

The biodegradation results were not surprising: PFOS, a chemical that was designed to withstand extreme temperatures and conditions, did not biodegrade.²² In fact, many within the environmental research community believe that PFOS and other highly fluorinated compounds redefine the meaning of the phrase "environmental persistence." Furthermore, the bioaccumulation studies found PFOS in the blood and livers of fish,²³ birds,²⁴ and marine mammals²⁵ from around the globe: not only is PFOS persistent, but it bioaccumulates in human and animal tissues. Finally, the various toxicity tests showed that PFOS could be toxic, though at doses many orders of magnitude higher than even the highest likely human exposure.²⁶ Though EPA was able to conduct a preliminary risk assessment using these data, EPA cautioned that its risk assessment contained "many assumptions and considerable uncertainty."²⁷ Many more years of research and much more scientific data would be needed before a definitive risk assessment could be performed. Yet it was at this point that 3M decided to announce its decision to voluntarily withdraw the product.

[33 ELR 10064]

EPA's Regulatory Options

Once the data were made available, EPA realized that PFOS fit the description of a chemical with high PBT potential.²⁸ Had PFOS been a new chemical undergoing PMN evaluation, EPA might have simply banned or limited its future uses and required strict controls on its environmental releases. Unfortunately, PFOS was listed as an existing chemical under TSCA, and, thus, EPA would have had to initiate a TSCA § 6 action to ban or restrict the manufacturing of PFOS-based chemicals. Such actions, however, would have been nearly impossible not only because the data gaps were too large, but also because the type of action EPA would most likely want to pursue for PFOS, either a complete ban or at least extreme use restrictions, has yet to be successfully implemented under the statute.

Under TSCA § 6, EPA may ban or restrict the manufacturing of a chemical if the Agency can demonstrate the chemical "presents or will present an unreasonable risk of injury to health or the environment."²⁹ Before doing so, the Agency must make several findings—including the effects of the substance on human health and the environment, the exposures of humans and the environment to the substance, the benefits of the substance, the availability of substitutes, and the economic consequences of taking such an action.³⁰ In previous § 6 actions, EPA has promulgated regulations aimed at controlling environmental and human health hazards due to chlorofluorocarbons, metalworking fluids, and hexavalent chromium.³¹ However, EPA's only attempt to essentially ban a substance under § 6, a 1989 prohibition of asbestos, was ultimately struck down by the U.S. Court of Appeals for the Fifth Circuit in Corrosion Proof Fittings v. EPA.³² The court essentially concluded that EPA's analyses and justifications were insufficient to warrant the action.³³ In particular, the court indicated that much more information was needed on the risks posed by replacements for asbestos before a complete ban could be justified. This decision served to raise the evidential bar very high for EPA to justify TSCA § 6 actions: EPA had spent nearly 10 years and collected a 45,000-page record in developing the asbestos rule, and yet it was still vacated by the courts.³⁴

In light of Corrosion Proof Fittings, it is not surprising that EPA has not, at present, attempted to promulgate any additional substance bans under TSCA § 6, regardless of the quality and quantity of the data and the thoroughness of their analyses. Furthermore, though EPA had concluded PFOS had high PBT potential, the health and environmental effects data did not present any clear conclusions that could be used to justify the initiation of a § 6 action. In addition, because of its unique physiochemical properties, finding suitable chemicals to replace PFOS, much less evaluating their potential health and environmental effects, is particularly difficult for some applications.³⁵ Given the lack of clear conclusions about PFOS' health risks and knowledge of potential replacement chemicals for some industrial uses, it is clear that pursuit of a § 6 ban or severe use restriction would have been extremely difficult.

This analysis demonstrates that it would have been very difficult, if not impossible, for EPA to force a ban or restricted use rule on PFOS. EPA acknowledges that the scientific data available at the time were probably not ready to support a § 6 action.³⁶ In the words of one EPA official, "regulatory action would have been difficult and time consuming at best."³⁷ Without a close examination of the state of the science and EPA's prior difficulties with TSCA § 6 actions, it would seem entirely plausible to conclude that 3M's decision to withdraw PFOS was heavily influenced by the looming threat of EPA's regulatory hammer. Yet careful analysis reveals that no hammer was ever present.

Legal Considerations

Though not discussed in the press release announcing the PFOS withdrawal, the possibility of future legal actions by citizens or citizen groups against 3M may also have contributed to its decision. Despite EPA's failed attempt to ban asbestos under TSCA § 6, such legal actions (in the form of toxic tort cases) ultimately led Johns-Manville Corporation (the major asbestos product manufacturer) to file for Chapter 11 bankruptcy protection.³⁸ However, unlike the case of asbestos, where the health effects were well known and documented, there do not appear to be any human health effects due to PFOS at the current levels of human exposure. Though many have concluded that issues of liability played a major role in 3M's decision,³⁹ it is not immediately clear how well-founded these conclusions were.

With respect to environmental policies, issues of liability are usually discussed in the context of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).⁴⁰ At the core of this statute is strict, joint, and several liability for hazardous substances and their releases to the environment. Though the definition of hazardous substance is broad, it is unlikely that PFOS or PFOS-based chemicals would ever be classified as hazardous substances within the context of CERCLA. Moreover, CERCLA is aimed at industries that directly or indirectly release such substances to the environment, rather than industries that manufacture products that, upon use by the consumer, result in environmental releases. Thus, in the case of PFOS, the liability at issue is potential product liability. In general, product liability law seeks to compensate individuals for harm [33 ELR 10065] caused by a manufacturer's product.⁴¹ Toxic torts, in which damages are sought for defective "toxic" products, e.g., asbestos and tobacco, have drawn substantial attention in recent years and have led to unprecedented damage awards.⁴² Was 3M afraid that PFOS would be implicated in a toxic tort case, and if so, was there any reason to believe that 3M could be found liable for damages on product liability grounds?

To succeed in a product liability suit, the plaintiff must demonstrate that the product was in some way defective and that this defect resulted in injury to the plaintiff.⁴³ In the case of PFOS-based products, it is most likely that a product liability suit would attempt to show that 3M's PFOS-based products suffered from design defects. In demonstrating this type of defect, the plaintiff would need to show that there was a cost-effective alternative design that would have prevented the risk of injury.⁴⁴ While replacements for PFOS-based chemicals have yet to be identified for some applications, in the months following 3M's announcement, 3M and several other chemical manufacturers introduced many non-PFOS-based alternative chemicals that presumably do not have the same potential long-term health and environmental risks.⁴⁵ As far as risk of injury, a potential plaintiff could claim risk of injury due to exposure to PFOS in commercial goods, e.g., Scotchgard TM-treated carpets, or indirectly through foods, e.g., fish, containing high levels of PFOS. Though the latter may seem unlikely, two oil companies were recently found liable for selling gasoline containing methyl tertiary butyl ether (MTBE) (deemed a defective product in this case) that subsequently contaminated groundwater in South Lake Tahoe, California.⁴⁶

What may have been particularly troublesome for 3M is that unlike the high evidential bar set for TSCA § 6 actions, the burden of proof required for product liability suits is much lower. Under product liability law, in addition to demonstrating a product defect, the plaintiff must merely show that their claim of injury is more likely than not to be sustained.⁴⁷ Thus, rather than trying to establish direct cause-and-effect relationships, plaintiffs may instead attempt to simply establish a causal inference.⁴⁸ This lower burden of proof means that although 3M may not have believed that a direct causal relationship could be established using their PFOS health data, if only a causal inference is required, there may have been more reason for concern. Fortunately for 3M, the then-current estimated exposure levels were so far below the levels at which any health effects were found that even establishing a causal inference of injury due to PFOS would have been extremely difficult. Unfortunately, this did not preclude the fact that if PFOS production continued, and PFOS continued to be released to the environment and continued to accumulate in biota, the exposure levels would likely rise. This, in turn, would raise the possibility that causal inference could eventually be established.

To date, 3M has not officially acknowledged that product liability concerns played any role in their decision to withdraw PFOS. However, in speaking with a 3M representative, it was openly acknowledged that liability concerns are not unusual, but that given its quick action, its decision to completely withdraw the product, and the absence of any health concerns for PFOS at the present levels, 3M was not really concerned about liability.⁴⁹ Yet it is clear that the apparent environmental behavior of PFOS could have led 3M to believe that continued production of PFOS might eventually lead to liability concerns. Though he emphasized the importance of other factors that likely influenced 3M's decision, David Roe⁵⁰ noted that because of its environmental persistence, 3M could be potentially liable for PFOS for a long period of time, during which additional health effects or environmental risks could be found.⁵¹ In short, PFOS did not create any liability concerns at the time, but the realization that it could present such concerns in the future may have partially contributed to the decision to cease its production.

The Precautionary Principle and Issues of Public Image

The precautionary principle is a general environmental and public health policy concept that has been gaining scientific and public acceptance in recent years. This principle, recently articulated by a conference of lawyers, scientists, and environmental activists convened to discuss its use in forming environmental policies, states that "when an activity raises threats of harm to human health or the environment, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically."⁵² In addition, the conference participants indicated that the proponent of the activity, rather than the public, should bear the burden of proving the activity poses no threat.⁵³ With the exception of the Federal Insecticide, Fungicide, and Rodenticide Act, few federal environmental statutes in the United States use this approach to environmental policies.⁵⁴ In fact, TSCA requires that EPA, rather than the chemical manufacturer, prove the activity poses a "substantial risk" before it can take action to eliminate or minimize that threat. If TSCA, the statute applicable to PFOS, does not employ the precautionary principle, then what influence, if any, could it have had on 3M's decision?

[33 ELR 10066]

The answer lies in the fact that 3M's major concern was not in a court of law, but in the court of public opinion. As cliche as it may sound, one thing that representatives from EPA, 3M, and the environmental community agreed on was the fact that 3M appeared to really want to do "the right thing."⁵⁵ Surprisingly, this argument was made most adamantly not by 3M (though the initial press release cited responsible environmental management as the motivating factor for the decision),⁵⁶ but by Roe, formerly of the Environmental Defense Fund. In linking 3M's decision to the High Production Volume (HPV) Challenge Program,⁵⁷ Roe indicated that he believed 3M management came to the realization that as far as the public is concerned with potentially toxic chemicals, ignorance is no longer bliss.⁵⁸ This argument would help explain why 3M was and continues to be so forthcoming with data describing the health and environmental effects of PFOS.⁵⁹ After all, 3M first approached EPA with concerns about PFOS long before such action would have been required under TSCA § 8(e). To not have withdrawn PFOS once the health effects and bioaccumulative behavior had been discovered would have been inconsistent with 3M's initial precautionary notification and discussions with EPA.

In light of 3M's record of environmental responsibility, neither its initial contact with EPA nor its decision to withdraw PFOS is surprising. One of the largest chemical and industrial manufacturers in the United States, 3M has a history of actively engaging in both pollution prevention and remediation. This history can be traced at least as far back as the early 1980s, when 3M investigated and voluntarily cleaned up one of its own 1950s-era hazardous waste dump sites before a lawsuit was even filed⁶⁰ while also claiming reduction in hazardous waste generation of approximately 90%.⁶¹ By actively developing and implementing a corporate pollution prevention strategy and taking steps to incorporate environmental goals into annual performance reviews for its executives, 3M has earned the praise of environmentalists and financial analysts alike.⁶² Such actions have earned the company the highest possible ratings on environmental issues, despite the fact that the company has been one of the major environmental polluters in the United States.⁶³

Given 3M's history, it is difficult to imagine the company's management willing to risk tarnishing this public image by mishandling the situation with PFOS. Had 3M not withdrawn PFOS and instead engaged EPA in a lengthy legal battle, even if they had won such a legal battle, the public relations implications could have been disastrous. One could only imagine the impact once consumers learned that 3M was refusing to withdraw chemicals found in their carpets, clothing, and even microwave popcorn bags that were toxic and capable of causing severe reproductive effects in rats. The characterization of PFOS as a persistent, bioaccumulative, and toxic chemical by EPA alone might have had a tremendous impact on 3M's public image: this language is nearly identical to that used by President George W. Bush, Secretary of State Colin L. Powell, and EPA Administrator Christine Todd Whitman to describe the well-known and widely feared polychlorinated biphenyls (PCBs), dichlorodiphenyltrichloroethane (DDT), and dioxins.⁶⁴ Furthermore, as consumers became more aware of the risks posed by these chemicals and the wide variety of household products that contain them, it is likely that at least some would try to avoid the use of these products or switch to products containing alternative chemicals, a move that could have eventually damaged the profitability of PFOS-containing products.

It is apparent that the precautionary principle and 3M's possible concerns with its public image were likely significant factors in its decision to withdraw PFOS. It is not surprising that a company that has been widely praised for its environmental efforts was the first to voluntarily apply the precautionary principle to one of its own major existing products. In fact, to have done the opposite, though perhaps expected of many other chemical manufacturers, would have negated at least some (if not all) of the many years of work 3M had conducted in building and sustaining an extremely positive public image with respect to the environment.

Conclusion

Though there is a tendency to believe that corporations, particularly chemical manufacturers, only take actions to prevent environmental damage when under imminent threat of regulation or legal action, a close analysis of both TSCA requirements and product liability law in the United States indicates that this was not the case with 3M and PFOS. Because of its generally high evidential bar, the threat of EPA action under TSCA was virtually nonexistent. Only when one examines 3M's actions in light of its history of environmental responsibility do its actions appear to make sense.

[33 ELR 10067]

An initial analysis of the evidence presented here might lead to the conclusion that 3M's decision was motivated partly by fear of future product liability as well as fear of damaging its public image. While this conclusion is certainly valid, it would ignore both 3M's documented history of dedication to environmentally responsible corporate behavior as well as the fact that 3M approached EPA about PFOS long before such action was required. The latter would be highly unlikely if 3M executives had approached PFOS largely from the perspective of potential liability. Thus, it is clear that though 3M may have been minimally exposed to potential product liability at the time of its decision, the major reason for 3M's decision appears to truly have been its desire to do "the right thing." By adopting the precautionary principle, at least with respect to PFOS, 3M continued to advance its public image of an environmentally responsible corporation.

With 3M's corporate ethic claiming the most important role in its decision to withdraw PFOS, the question as to whether other corporations would have done the same becomes much more difficult to answer. Certainly, because potential product liability likely played at least some role in 3M's decision, legal efforts to extend product liability to broader environmental and public health concerns may, if successful, increase the likelihood that other corporations might reach the same conclusion, though perhaps for different reasons. However, in speaking with representatives of both EPA and 3M, it is clear that the real lesson to be learned from PFOS is that open communication between EPA and corporations can lead to very successful resolutions of environmental problems.⁶⁵ This communication may be particularly important when testing data become available from the recently launched HPV Challenge Program. If these data indicate that some existing chemicals exhibit toxic characteristics and further analyses show these chemicals to be persistent and bioaccumulative, one can only hope that other corporations will follow 3M's lead by adopting the precautionary principle for their products.

1. Letter from William A. Weppner, Ph.D., Director, Environmental, Health, Safety, and Regulatory Affairs, Specialty Markets Group, 3M Company, to Charles Auer, Director, Chemical Control Division, Office of Pollution Prevention and Toxics, U.S. Environmental Protection Agency (EPA) (July 7, 2000) [hereinafter Weppner Letter].

2. Joseph Weber, 3M's Big Cleanup: Why It Decided to Pull the Plug on Its Best Selling Stain Repellant, BUS. WK., June 5, 2000, at 96-98.

3. Press Release, 3M Company, 3M Phasing Out Some of Its Specialty Materials (May 16, 2000).

4. Id.

5. 3M, FLUOROCHEMICAL USE, DISTRIBUTION, AND RELEASE OVERVIEW (1999).

6. Some products containing PFOS are also regulated by the Food and Drug Administration. Weppner Letter, supra note 1. See also STEVEN FERREY, ENVIRONMENTAL LAW: EXAMPLES AND EXPLANATIONS 548 (Aspen Law & Business 2001).

7. FERREY, supra note 6.

8. Toxic Substances Control Act, 15 U.S.C. §§ 2601-2692, ELR STAT. TSCA §§ 2-412.

9. FERREY, supra note 6, at 549.

10. LYNN L. BERGESON, TSCA: TOXIC SUBSTANCES CONTROL ACT 9-10 (American Bar Association 2000).

11. ENVIRONMENTAL DEFENSE FUND, TOXIC IGNORANCE: THE CONTINUING ABSENCE OF BASIC HEALTH TESTING FOR TOP-SELLING CHEMICALS IN THE UNITED STATES 25 (1997). David Roe, Toxic Chemical Control Policy: Three Unabsorbed Facts, 32 ELR 10232 (Feb. 2002).

12. FERREY, supra note 6, at 554.

13. BERGESON, supra note 10, at 71.

14. U.S. EPA, 2000 PBT PROGRAM ACCOMPLISHMENTS 2 (2001).

15. Id. United Nations Environment Programm, Convention Text (Stockholm Convention on Persistent Organic Pollutants, Stockholm, Sweden, 2001).

16. See 2000 PBT PROGRAM ACCOMPLISHMENTS, supra note 14.

17. Id. at 6.

18. Weber, supra note 2.

19. Telephone Interview with Rick Renner, Communications Department, 3M Company (Apr. 30, 2002). Telephone Interview with Mary Dominiak, EPA (May 1, 2002).

20. 3M, PERFLUOROOCTANE SULFONATE: CURRENT SUMMARY OF HUMAN SERA, HEALTH, AND TOXICOLOGY DATA (1999).

21. Dominiak Telephone Interview, supra note 19.

22. Blake D. Key et al., Defluorination of Organofluorine Sulfur Compounds by Pseudomonas Sp. Strain D2, 32 ENVTL. SCI. & TECH. 2283 (1998).

23. John P. Giesy & Kurunthachalam Kannan, Global Distribution of Perfluorooctane Sulfonate in Wildlife, 35 ENVTL. SCI. & TECH. 1339 (2001).

24. Kurunthachalam Kannan et al., Perfluorooctane Sulfonate in Fish-Eating Water Birds Including Bald Eagles and Albatrosses, 35 ENVTL. SCI. & TECH. 3065 (2001).

25. Kurunthachalam Kannan et al., Accumulation of Perfluorooctane Sulfonate in Marine Mammals, 35 ENVTL. SCI. & TECH. 1593 (2001).

26. Of particular concern are the reproductive effects found in rats. 3M, supra note 20. See also Weber, supra note 2.

27. E-mail from Charles Auer, EPA, to Organization for Economic Cooperation and Development (May 16, 2000) (on file with author).

28. Id.

29. 15 U.S.C. § 2605(a), ELR STAT. TSCA § 6(a).

30. BERGESON, supra note 10, at 48.

31. Id. at 49.

32. 947 F.2d 1201, 22 ELR 20037 (5th Cir. 1991).

33. ROBERT V. PERCIVAL ET AL., ENVIRONMENTAL REGULATION: LAW, SCIENCE, AND POLICY 470 (Aspen Law & Business 3d ed. 2000).

34. Id. at 458.

35. Weppner Letter, supra note 1; Weber, supra note 2.

36. Dominiak Telephone Interview, supra note 19.

37. Auer E-mail, supra note 27.

38. JEAN M. EGGEN, TOXIC TORTS IN A NUTSHELL 376 (West Group 2d ed. 2000).

39. John Meinhold, Toxic Substances Control Act Is a Failure: MTBE and Scotchgard Highlight Need for Reform, available from the New Hampshire Chapter of the Sierra Club, at http://www.newhampshire.sierraclub.org/politics_issues/mtbe/index.html (last visited June 10, 2002). Some have also attributed the 5% raise in 3M's stock price immediately following 3M's announcement to investors' belief that this action would likely reduce future liability exposure. Roland Kushner, The End of the Line for Scotchgard, supplement to STEPHEN P. ROBBINS & MARY K. COULTER, MANAGEMENT (Prentice Hall, Inc. 7th ed. 2000), available at http://myphlip.pearsoncmg.com/cw/mplistres2.cfm?vbookid=287 (last visited Aug. 8, 2002).

40. 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA §§ 101-405.

41. MARGARET C. JASPER, THE LAW OF PRODUCT LIABILITY ix (Oceana Publications, Inc. 2d ed. 2001).

42. MICHAEL J. MOORE & W. KIP VISCUSI, PRODUCT LIABILITY ENTERING THE TWENTY-FIRST CENTURY: THE U.S. PERSPECTIVE 36 (American Enterprise Institute-Brookings Joint Center for Regulatory Studies 2001).

43. JASPER, supra note 41, at 6.

44. Id. at 7.

45. Alexander H. Tullo, Filling 3M's Void, 79 CHEMICAL & ENGINEERING NEWS 17-18 (2001).

46. Jane Kay, 2 Oil Giants Deceived Public on MTBE's Hazards, Jury Finds, S.F. CHRON., Apr. 17, 2002, at 1.

47. JASPER, supra note 41, at 51.

48. LINDA P. KING, CHEMICAL INJURY AND THE COURTS: A LITIGATION GUIDE FOR CLIENTS AND THEIR ATTORNEYS 69 (McFarland 1999).

49. Renner Telephone Interview, supra note 19.

50. David Roe, a former Senior Attorney at Environmental Defense, is author of California's Proposition 65 and contributor to the Environmental Defense Fund's Toxic Ignorance report.

51. Telephone Interview with David Roe, former Senior Attorney, Environmental Defense Fund (Apr. 30, 2002).

52. Science and Environmental Health Network, The Wingspread Statement on the Precautionary Principle, at http://www.sehn.org/state.html (last visited Apr. 18, 2002).

53. Id.

54. However, though the precautionary principle is not explicitly incorporated into the text of the treaty, the need for precaution is acknowledged as an underlying component of the POP Treaty. United Nations Environment Programm, supra note 15.

55. Dominiak Telephone Interview, supra note 19; Renner Telephone Interview, supra note 19. Roe Telephone Interview, supra note 51.

56. Press Release, supra note 3.

57. The HPV Challenge Program is a voluntary program developed by EPA, the Environmental Defense Fund, and the Chemical Manufacturer's Association (now the American Chemistry Council) to expedite the evaluation of existing chemicals for basic toxicity. U.S. EPA, Chemrtk: HPV Challenge Program, at http://www.epa.gov/chemrtk/volchall.htm (last visited Aug. 6, 2002). This program was initiated after independent reports from these three organizations indicated that basic toxicity information was not publicly available for more than 90% of the existing chemicals listed under TSCA. Roe Telephone Interview, supra note 11.

58. Roe Telephone Interview, supra note 51.

59. Not only has 3M contributed nearly 1,200 documents as part of the official record at EPA (Docket No. AR-226 at EPA's Office of Pollution Prevention and Toxics), but 3M scientists continue to perform and publish studies in the scientific literature documenting the presence of PFOS in the environment. Kurunthachalam Kannan, Perfluorooctane Sulfonate in Oysters, Crassostrea Virginica, From the Gulf of Mexico and the Chesapeake Bay, USA, 42 ARCHIVES OF ENVTL. CONTAMINATION & TOXICOLOGY 313 (2002); Kris J. Hansen et al., Quantitative Characterization of Trace Levels of PFOS and PFOA in the Tennessee River, 36 ENVTL. SCI. & TECH. 1681 (2002).

60. Minnesota Mining to Clean Up Waste Dump, N.Y. TIMES, July 21, 1983, at A13.

61. Steven J. Marcus, The Recycling of Chemical Waste; Rather Than Bury Toxic Chemicals New Ways Are Found to Use Them in Products, N.Y. TIMES, Jan. 8, 1984, at 3.

62. John Holusha, Hutchinson No Longer Holds Its Nose: Minnesota Mining and Manufacturing Co. Cleans Up Pollution Emissions, N.Y. TIMES, Feb. 3, 1991, at 3.

63. Id.

64. The White House, Remarks by the President, Secretary of State Colin Powell, and EPA Administrator Christine Todd Whitman in Environmental Announcement (Apr. 19, 2001), at http://www.whitehouse.gov/news/releases/2001/04/20010419-2.html (last visited Aug. 6, 2002).

65. Dominiak Telephone Interview, supra note 19; Renner Telephone Interview, supra note 19.