AG sues companies that sell fire extinguishers in NMI

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ATTORNEY General Edward Manibusan has sued companies that manufacture and sell fire extinguishers in the CNMI, alleging that they contained chemicals harmful to the environment and have adverse health effect on island residents.

Manibusan is also demanding a jury trial in the 62-page complaint he filed on behalf of the CNMI government in Superior Court.

The defendants are 3M Company, Tyco Fire Products, Chemguard Inc., Buckeye Fire Equipment, Kidde-Fenwal Inc., National Foam Inc., E.I. Du Pont De Nemours & Co., Chemours Company, and Does 1-20.

All defendants are based in the U.S. mainland.

Manibusan has asked the court to hold the defendants liable for their conduct in designing, manufacturing, and selling a firefighting chemical agent known as an aqueous film-forming foam or AFFF and related products.

The AFFF contains perfluoro octane sulfonic acid or PFOS and perfluorooctanoic acid or PFOA, which are toxic chemicals, the lawsuit said, adding that these toxic chemicals “present a significant threat to the NMI environment and residents.”

It added, “They are mobile, persist indefinitely in the environment, bioaccumulate in individual organisms and humans, and biomagnify up the food chain. PFOS and PFOA are also associated with multiple and significant adverse health effects in humans.”

According to the lawsuit, “PFOS is associated with immune system suppression, including decreases in antibody responses to vaccines and increases in risk of childhood infections. PFOA is associated with, other things, kidney cancer, testicular cancer, high cholesterol, thyroid disease, ulcerative colitis, and pregnancy-induced hypertension.”

The lawsuit stated that “since the creation of AFFF in the 1960s, defendants have sold their AFFF products to military and industrial facilities, airports, firefighting training academies, and fire departments in the NMI, and elsewhere. These entities used defendants’ AFFF products as they were intended to be used and in a foreseeable matter, which introduced PFOS and PFOA into the environment and contaminated natural resources.”

The lawsuit further alleged that the defendants were aware of the toxic nature of PFOS and PFOA and the harmful and negative impact these substances have on the environment, wildlife, and human health. “Nevertheless, they continued to manufacture, market, and sell their AFFF products in the NMI and elsewhere, and concealed the threat associated with use of their products,” the lawsuit stated.

It added that the NMI’s natural resources have been injured as a result of defendants’ conduct.

“Most significantly, the drinking water system serving southern Saipan has been impacted by AFFF-related contamination, and elevated levels of PFOS and PFOA have been detected in wells,” the lawsuit stated.

The affected villages include Afetnas, San Antonio, Chalan Piao, Chalan Kanoa, Susupe, Oleai, San Jose, Chalan Laulau, Iliying, Chalan Kiya, As Terlaje, Kannat Tabla, and Fina Sisu, which are located in the areas surrounding the Francisco C. Ada/Saipan International Airport, the lawsuit stated.

“As investigation continues, it is expected that further contamination from handling, use, training with, testing equipment with, other discharges, and disposal of AFFF products will be uncovered in Saipan and potentially the other islands that make up the NMI.”

According to the lawsuit, the “defendants’ actions and AFFF products have contributed to the past and present handling, storage, treatment, transportation, and/or disposal of solid or hazardous waste in Saipan which present an imminent and substantial endangerment to health and the environment, in violation of the Resource Conservation and Recovery Act, 42 U.S.C. § 6972(a)(1)(B).”

The lawsuit is seeking an order for damages “including damages for injuries to all of the NMI’s natural resources, economic damages, restitution and disgorgement of defendants’ ill-gotten profits, punitive damages, and all other damages, fees, costs, and equitable relief to which it may be entitled.”

The lawsuit also wants the court to require the defendants to pay all costs necessary to remediate, assess, and restore the sites in the NMI where there is AFFF-related contamination.

Moreover, the lawsuit said the court should order the defendants to pay all costs necessary to fully investigate locations in the NMI where their AFFF products were stored, handled, used, trained with, tested equipment with, otherwise discharged, and disposed as well as all areas affected by their AFFF.

The AG’s office noted that concurrent with the filing of the lawsuit, the CNMI government has issued a notice to the defendants and the Administrator of the U.S. Environmental Protection Agency under the Resource Conservation and Recovery Act of the Commonwealth’s intent to bring a claim under 42 U.S.C. § 6972(a)(1)(B) “to remedy the imminent and substantial endangerment to health and the environment which defendants have created or contributed to by their conduct described in the complaint.”

Guam AG Leevin T. Camacho filed a similar complaint against the same defendants in Guam Superior Court in Sept. 2019.

3M Company, one of the defendants, is represented by Guam-based attorney G. Patrick Civille who moved the civil complaint from Superior Court to the District Court for the NMI on Jan.16, 2020.

3M indicated that it intends to assert the “federal contractor” defense in response to the CNMI government’s lawsuit and has moved the litigation to the federal court under the federal officer removal statute, 28 U.S.C. § 1442(a)(1), to have its federal defense adjudicated in a federal forum.

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