FOIAengine: ProPublica Reporter Made Dozens of FOIA Requests to EPA Before Dropping a Bombshell
Minnesota-based 3M styles itself as a friendly, people-first company in the heartland of America, innovating through curiosity. Its 93,000 employees make all sorts of useful items found all over.
The company takes its innate inquisitiveness so seriously that it emblazoned this corporate maxim on the side of its global headquarters near St. Paul: “Curiosity is just the beginning.”
Sounds like plain old Midwestern common sense, right? – leading to discoveries of more than a thousand new products a year that we all use. Just think about it: What could be more ubiquitous in everyday life than 3M’s Scotch tape, or Post-its?
Well, how about the dangerous substances known as “forever chemicals?” That’s the common term for per- and polyfluoroalkyl substances (PFAS), a group of more than 4,700 man-made chemicals known for their persistence in the environment and resistance to degradation.
3M didn’t invent PFAS, but it used them to build some pretty impressive products back in the day. For example, the slipperiness and durability that made 3M’s PFAS-based Scotchgard so effective at repelling water and grease turned out to be the very thing that assured those chemicals would never break down.
We know a lot more today about forever chemicals. PFAS are found in so many different products and places – from cosmetics to fish, nonstick cookware to public water supplies – that nearly all people in the U.S. today have some level of PFAS in their blood. Health problems connected to PFAS include liver damage, thyroid disease, obesity, fertility issues, and cancer.
Until recently, scientists didn’t know how bad PFAS could be – or did they?
As it turns out, there’s a lot more to 3M’s story – and to the woeful saga of PFAS. Readers of The New Yorker learned that a few weeks ago, in a collaborative article with Pro Publica entitled “How 3M Discovered, Then Concealed, the Dangers of Forever Chemicals.” (In the May 27 print edition of the magazine, the title was, simply, “You Make Me Sick.”)
The subhead on Pro Publica journalist Sharon Lerner’s story was similarly blunt, and damning: “The company found its own toxic compounds in human blood—and kept selling them.” Lerner built her story around a former 3M scientist named Kris Hansen. Early in her career, Hansen conducted ground-breaking research on the dangers of what years later would be known as forever chemicals.
In 1999, Hansen was asked by her superiors to brief 3M’s board on the toxicity of PFAS in 3M’s various product lines. By then, 3M was using PFAS in what was likely thousands of its own products. (In a recent radio interview, Lerner said 3M “acknowledged [in 2022] having more than 16,000 products that contain them.”)
Hansen told the board how she’d found the toxin in every sample of human blood she tested, which meant the forever chemical already was everywhere. Her efforts were unavailing. “Men in suits sat around a long table. . . . The executives seemed to view her diligence as a betrayal: her data could be damaging to the company. . . . The CEO appeared to have fallen asleep.” Hansen was told to stop her research.
Hansen lived with the secret for more than two decades before finally agreeing, in January 2023, to tell her story to Lerner.
The resulting New Yorker story was exhaustive and fact laden. We had an immediate hunch that Lerner would have sought documents under the Freedom of Information Act. Regardless of what, if anything, the Pro Publica journalist later received in response, the FOIA requests themselves would have been early warnings of reputational damage to come.
We were right.
A search of FOIAengine, PoliScio Analytics’ competitive-intelligence database that tracks FOIA requests in as close to real-time as their availability allows, turned up 31 requests from Lerner dating back to January 2021 – all but one to the Environmental Protection Agency, which has regulatory authority over forever chemicals.
It’s unclear how many of Lerner’s FOIA requests might have been related to her New Yorker research, but at least one was clearly on point with the story that she eventually broke. In June 2023, four months after her first visit to Hansen’s home, Lerner made a FOIA request for six years’ worth of “records, letters, meeting notes, texts and emails (including attachments) sent or received by Anna Lowit that contain the following key terms: 3M, PFAS, PFBS, PFOS or PFHxS. I also request copies of all messages, including texts, emails and attachments sent or received by Anna Lowit to or from email addresses ending in ‘@mmm.com.’ In addition, I request copies of all messages, including emails, texts, and attachments sent from Anna Lowit to Lawrence (Larry) Milchak or from Mr. Milchak to Ms. Lowit.”
Lerner certainly seemed to be on to something. For avoidance of any doubt, she provided the EPA with Milchak’s contact details, including his personal gmail account and cell number.
Why was Lerner asking about Milchak and Lowit?
Milchak, a Ph.D. toxicologist, was a central PFAS player at 3M. At the time of Lerner’s request, Milchak had recently left his job as the leader of 3M’s Strategic Toxicology Lab. After more than 16 years with 3M, he joined Kimberly-Clark in late 2022 as a global product safety officer. Lowit is a career scientist in EPA’s Office of Chemical Safety, involved in assessing the toxicity of PFAS as well as gathering input from industry. Neither was named in Lerner’s recentreporting for the New Yorker. Through her editor, Lerner declined all comment.
The EPA documents sought by Lerner provide one of the best examples we’ve seen of how FOIA requests can presage bad publicity and litigation to come: In the months before the New Yorker story ran, 3M saw its stock price crushed; got rid of its CEO; and resolved a sprawling PFAS lawsuit for $10.3 billion. According to Docket Alarm, 3M still faces hundreds of thousands of product-liability lawsuits – to say nothing of future uncertainty the company described in a recent SEC filing.
3M announced in 2022 that it would exit PFAS manufacturing by 2025. At the time of the announcement, the company said its PFAS-related product line was profitable, with annual revenue of $1.3 billion (less than 5 percent of its current worldwide revenue of $33 billion.) 3M continues to maintain that all of its products, “including those containing PFAS, are safe and effective for their intended uses in everyday life.”
Defense lawyers are predicting an astronomical wave of PFAS litigation, with judgments that could exceed the record damages – hundreds of billions of dollars – involving asbestos and tobacco. A recent New York Times story quoted one defense lawyer telling a room full of plastic-industry executives: “Do what you can, while you can, before you get sued. . . . Review any marketing materials or other communications that you’ve had with your customers, with your suppliers, see whether there’s anything in those documents that’s problematic to your defense. Weed out people and find the right witness to represent your company.”
Last January, lawyers from Thompson Hine made a similarly baleful prediction about what lies ahead for those with PFAS liability.
“The tip of the iceberg is way out of the water,” the lawyers said in their presentation. “Watch that iceberg. It keeps getting bigger.”
FOIAengine contains hundreds more PFAS-related FOIA requests. We plan to continue following this important FOIA story.
FOIAengine access now is available for all professional members of Investigative Reporters and Editors, a non-profit organization dedicated to improving the quality of journalism. IRE is the world’s oldest and largest association of investigative journalists. Following the federal government’s shutdown of FOIAonline.gov last year, FOIAengine is the only source for the most comprehensive, fully searchable archive of FOIA requests across dozens of federal departments and agencies. FOIAengine has more robust functionality and searching capabilities, and standardizes data from different agencies to make it easier to work with. PoliScio Analytics is proud to be partnering with IRE to provide this valuable content to investigative reporters worldwide.
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Next: Hedge fund requests to the FDA and SEC.
John A. Jenkins, co-creator of FOIAengine, is a Washington journalist and publisher whose work has appeared in The New York Times Magazine, GQ, and elsewhere. He is a four-time recipient of the American Bar Association’s Gavel Award Certificate of Merit for his legal reporting and analysis. His most recent book is The Partisan: The Life of William Rehnquist. Jenkins founded Law Street Media in 2013. Prior to that, he was President of CQ Press, the textbook and reference publishing enterprise of Congressional Quarterly. FOIAengine is a product of PoliScio Analytics (PoliScio.com), a new venture specializing in U.S. political and governmental research, co-founded by Jenkins and Washington lawyer Randy Miller. Learn more about FOIAengine here. To review FOIA requests mentioned in this article, subscribe to FOIAengine.
Write to John A. Jenkins at [email protected].
