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Minnesota vs. Minnesota: Agency pushes back in $5 billion 3M suit

ST. PAUL — The state's $5 billion lawsuit against 3M is looking more like a case of Minnesota vs. Minnesota.

Two parts of state government are contradicting each other about the central issue in the suit: whether pollution caused by the 3M Co. has raised rates of certain health ailments.

The Minnesota attorney general's office says that it did. The Minnesota Department of Health says it did not.

"Obviously the attorney general is not happy about it," said Mike Vanselow, a lawyer who worked for the attorney general's office for 16 years ending in 2007. "People ask why the health department shouldn't do what the attorney general wants. And why shouldn't the attorney general do what the governor wants?"

At the urging of Gov. Mark Dayton, the health department issued a report Feb. 7 — a week before the initial trial date — that apparently contradicts assertions made in the lawsuit.

At a pre-trial hearing two days later, 3M attorneys said the new information was critical to their case. Hennepin County District Judge Kevin Burke agreed and postponed the trial by one week. It is now scheduled to start Tuesday, Feb. 20.

Burke, restating 3M's position, described the health department as a "whistleblower" on the attorney general's office.

3M says the chemicals, which were used in nonstick cookware, stain repellent and firefighting foam, were legally disposed of in dumpsites until the 1970s. In 2004, trace amounts of the chemicals were found in the groundwater of Washington County.

Large doses of the chemicals cause diseases in laboratory mice, but it is not known if the parts-per-trillion traces in water today have caused harm to people.

Two studies, different results

The attorney general filed the lawsuit in 2010 as an environmental damage lawsuit. It never specifically sought damages for making an individual person sick.

But as supporting material to illustrate the hazards of the pollution, it has argued that the chemicals do make people sick.

To make that argument in the trial, the attorney general has chosen as a witness Dr. David Sunding, a professor at the University of California at Berkeley.

Sunding is expected to testify that in Oakdale, the 3M pollution caused increased rates of cancer, low birth-weight babies, premature births and infertility.

But the health department announced it had looked into three of Sunding's areas of concern: cancer, low birth-weight babies and premature births.

Its conclusion? No increases.

The studies were not perfectly matched. Sunding looked at the City of Oakdale, and the department considered other pollution-affected communities. Sunding looked at the 2001-16 timeframe, while the department examined three periods: 2001-05, 2006-10 and 2011-15.

But the two studies were comparable enough to persuade the judge to postpone the trial.

After the health department's report, Attorney General Lori Swanson hit back.

She called the report "deeply troubling." "I can only conclude from this that the (health department) is embarrassed because it is so late to the table in protecting the public health," she wrote in a news release.

Ben Wogsland, a spokesman for the attorney general, said the health department report was "much ado about nothing."

He said basic elements of the case — that 3M made the chemicals, dumped them, and knew they could potentially harm humans — were strong. 3M disputes this, although 3M attorneys did not respond to requests for comments made last week.

Wogsland said the health department did not consider demographic factors, such as race, income and educational levels. But Sunding did. "He did a more robust analysis," Wogsland said.

Nonsense, says the health department.

Alan Bender, a department official and an associate professor at the University of Minnesota, said in an email that the data was "far superior to what Sunding used."

Sunding said the pollution caused an increase in childhood cancer deaths, but Bender said that conclusion was the "most off-the-wall of his many mischaracterizations."

The health department's findings were not exactly new. It came to the same conclusions in 2007 and 2015, when it said there were no increased levels of health problems seen in the pollution-affected areas.

"Nothing changes our conclusions," Bender wrote. "After hundreds of hours of review and analysis by highly trained and experienced statisticians and epidemiologists ... (the department) has concluded that there are no unusual occurrences of adverse birth outcomes or cancer occurrences that could plausibly be related to PFC exposure in the East Metro area."

Why just before trial?

But what about the timing — one week before the trial?

Dayton in January asked the department to release the report.

Dayton spokesman Matt Swenson said the governor felt it was important for the attorney general to have access to it before the trial — and at the same time, the public.

"A public study should be available to the public," Swenson said.

Vanselow, an attorney with Lockridge Grindahl Nauen in Minneapolis, said it was probably better to release the findings, even at the last minute. That's because if 3M lost the case, it could complain that the state withheld evidence and ask for a retrial.

Health department spokesman Doug Schultz acknowledged that the department's areas of concern matched those of Sunding. This was not to undercut Sunding's findings, he said, but because members of the public asked specifically about the ailments after they were included in news stories.

Attorney Vanselow said the attorney general vs. health department contradictions arise because the attorney general is a separately elected office. That makes it independent of the governor and of state agencies.

It is unusual — but not unprecedented — for a lawsuit by an attorney general to be subverted by other parts of the government. But Vanselow said that usually happens when the attorney general and governor are of different political parties, which is not the case here.

In fact, there are some cases in which governors have sued their own attorneys general, Vanselow said.

He said the internal disputes do not arise when agencies join an attorney general's suit. "Then they would be on same page," he said.

That describes the state Pollution Control Agency and the Department of Natural Resources. They are both named as co-plaintiffs with the attorney general.

The health department is not a co-plaintiff.

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