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FOCUS: Government legally bound to help PFOS maker fight claims

FOCUS: Government legally bound to help PFOS maker fight claims

Wednesday 31 March 2021

FOCUS: Government legally bound to help PFOS maker fight claims


The Government is legally obliged to provide information to the manufacturer of a controversial firefighting foam, to help the chemical giant defend claims made against it, including by islanders who believe their health has been damaged by pollution.

The full details of a 2004 ‘Deed of Settlement’ agreed between the States of Jersey and US multinational 3M - which were not published at the time - have now been seen by Express.

The deed relates to the contamination of water supplies caused by a man-made chemical in the foam, called PFOS. The 3M-made foam was sprayed at the Airport – particularly at its fire training ground at the western end of the runway – for a number of years up to the early 90s.  

Agreed by the States Assembly in January 2005 after a behind-closed-doors debate, the deal resulted in 3M giving the government of the day £2.6m, which went towards cleaning up the contaminated training ground and building a new rig on the site.

plume area.jpg

Pictured: A Government map of the “plume area” in St Ouen’s Bay which is contaminated by PFOS.

In exchange, the States committed to “forever release, acquit, discharge, and covenant not to sue 3M or any 3M entity in relation to any and all Airport claims.”

Signed by the President of the Harbours and Airport Committee, now-Home Affairs Minister Len Norman, the deal included a number of other legally binding commitments.

These include a pledge from the States that it will: “not take any action or other steps […] to procure, permit, promote, suggest, support or induce any company or other persons to make any claim or bring any proceedings against 3M or any 3M entities in relation to the supply to Jersey Airport and/or Jersey Airport’s Fire Service of any Firefighting Foam, the environmental, health, or safety effects of any Firefighting Foam or any substances in Firefighting Foam, or the presence or possible presence of any Firefighting Foam or any substances in Firefighting Foam in surface water, groundwater, or public water supply at or in the vicinity of Jersey Airport or Jersey Airport Fireground.

It adds: “They and all or any of their Government Committees shall use their reasonable best endeavours to provide information to 3M or any 3M Entity that might assist them in defending claims made or proceedings brought by any third party or parties in Jersey relating to the supply to Jersey Airport and/or Jersey Airport’s Fire Service of any Firefighting, the environmental, health, or safety effects of any Firefighting Foam in surface water, groundwater, or public water supply at or in the vicinity of Jersey Airport or Jersey Airport Fireground save that upon providing Information to 3M or any 3M Entity the States of Jersey and all or any of their Government Committees can at their entire discretion provide the same information to the other party or parties to the claim or proceeding.

The deed continues: “For the avoidance of doubt, this obligation to use reasonable best endeavours to provide information also means ensuring that the personnel and agents of the States of Jersey and their Government Committees with information in their possession make themselves available to 3M or 3M Entity, save that in the case of individuals in their possession who are not employees of the States of Jersey, the States of Jersey may discharge this obligation by using their reasonable best endeavours to encourage such individuals to make themselves available.”

For its part, 3M agrees to “use its reasonable best endeavours”, at the cost of the States of Jersey, to provide technical assistance to the States to assist it in defending or settling any claim that might be made against the States. 

The deed was approved by the island's politicians - 36 votes to 12  - on 18 January 2005.

Speaking to the Jersey Evening Post after the debate, [the then] Senator Norman said: “It was a measured and controlled debate and quite interesting. All the evidence suggests that future action will not be necessary.”

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Pictured: Home Affairs Minister Len Norman signed the Deed of Settlement when he was President of the Harbours and Airport Committee in 2004.

However, the Health Committee of the time, led by Senator Stuart Syvret, had urged Members to reject the deal.

In its comments accompanying the proposition, it wrote: “The science of PFOS and related chemicals is in its infancy. It is likely that within, say, ten years, we will know far more about the health impact of this chemical on human health. 

“Early pointers are that PFOS may have significant effects; it is certainly far too soon to say it is ‘safe’. This level of uncertainty makes it unwise for the States to assume that PFOS represents no threat to human health or to the environment when the Assembly considers this settlement.

“If the Deed of Settlement between the Harbours and Airport Committee and the manufacturer is ratified, the States of Jersey will be forever surrendering any opportunity to take legal action against the manufacturer. Such a decision would bind the hands of future States assemblies. 

“The manufacturer is a trans-national corporation with immense resources. It is therefore entirely unrealistic to imagine third parties, in the form of private individuals, mounting any serious legal action against the manufacturer. 

“If the nature of the problem posed by PFOS proved to be greater at some future date than that recognised at present, there is only one entity in Jersey that could remotely mount a case for any recompense from the manufacturer – and that is the States of Jersey.”

17 years after the signing of the deed, PFOS – and the PFAS family of carbon-based chemicals of which it is part – remains controversial, with many people, including scientists, claiming it is harmful to human health over long periods of ingestion.

The US Environmental Protection Agency is about develop and propose formal enforceable drinking water standards for PFOS and another of the PFAS group, PFOA.

It says that the “best available peer-reviewed studies” on rats and mice, and epidemiological studies on humans indicate that exposure to PFOA and PFOS over certain levels may result in adverse health effects.

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Pictured: St Peter resident Sarah Simon believes that the health of Islanders has been adversely affected by drinking water contaminated with PFOS.

St Ouen’s Bay resident Sarah Simon is campaigning for an independent committee of inquiry to look into claims that the health of Islanders, including hers, her family’s and neighbours, have been adversely affected by drinking PFOS-contaminated water.

She also wants the Government to test the blood of Islanders to assess PFAS (including PFOS) levels.

Responding to the deed of settlement details, she said: “It makes me sad to think that politicians adopted a policy to monitor the health of islanders known to have consumed elevated levels of PFAS in their drinking water knowing that they would not follow that policy. 

“They have deliberately spent years denying me, my family, fellow residents and now the wider population of Jersey proper medical care. It breaks my heart to know that people I have loved have lost their lives to PFAS poisoning and many more will follow.”

A Government spokesperson said that it could not comment on the deed of settlement for legal reasons.

However, the spokesman reiterated the Government’s position that “worldwide, there is considerable research into the relationship between PFAS exposure, health effects and safe levels. 

“The national public health authorities in Australia, Canada and the United States have all concluded that there is no evidence confirming adverse effects on human health caused by exposure to PFAS and that no specific health screening is appropriate or warranted. 

“There are, however, many causes of immunosuppression that maybe the result of a disease, or as a consequence of pharmaceutical agents used to fight certain conditions, like cancer.

“Individuals with any health concerns should consult their general practitioner, who might then refer them to an appropriate expert in toxicological medicine.”

The Government is, however, allocating money and resources to monitor levels of PFAS chemicals and clean up contaminated areas, including St Ouen’s Bay and Pont Marquet in St Brelade, which has been found to have high levels of the chemical. It has established a ‘Technical Officer Group’, which has published two interim reports.

Writing in the second report, from last November, Environment Minister John Young said: “PFAS compounds will be around for a very long time and will present significant risks and challenges going forward, not only for our Island, but also for many other countries. 

“We must work to mitigate these risks wherever possible in order to protect our environment and safeguard important water resources.”

READ MORE...

Islander tests own blood in bid to prove chemical contamination

PFOS campaigner backs calls for water contamination inquiry

Jersey Water calls for St. Ouen’s Bay pollution test

Government rejects chemical poisoning inquiry calls

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“I’ve already been poisoned...the Government needs to act to protect future generations”

Gov response to PFOS "nonsense and insulting"

Government "in denial" over chemical pollution of water

FOCUS: What has happened to Ministers' support on PFOS

Airport still used toxic firefighting foam up to this year

Latest PFOS report branded "a farce" by campaigner

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Posted by Steven Simon on
The States sold us down the river and still do so!!! After saying and still printing you can get help through your GP who can refer you to a Toxicologist is a load of rubbish. I have asked Deluty Huelin of St Peter and Health Minister R Renouf to clarify on numerous occasions they have failed to answer said question and still do so. They do quite how ever how difficult it is because of the agreement signed with 3M. Hence why we ( islanders of Jersey ) have been sold down the river yet again by our politicians!!! Shame on you.
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