[co-author: Stephanie Kozol]
In February 2018, Ohio become the first state to sue DuPont alleging that the company had released perfluorooctanoic acid (PFOA) into the environment.[1] Since then, multiple state attorneys general (AG) have continued to weigh in on DuPont’s alleged role in contaminating the environment with per- and poly-fluoroalkyl substances (PFAS), including recent lawsuits filed by Tennessee[2] and North Carolina.
The various forms of PFAS are commonly referred to as toxic “forever chemicals” because they do not break down in the environment and are a particular problem for public drinking water systems. The owners and operators of sites that are alleged sources of PFAS contamination are subject to an evolving regulatory landscape. Indeed, on February 1, the U.S. Environmental Protection Agency (EPA), announced two proposed rule changes related to PFAS: the first rule would modify its current definition of “hazardous waste” under the Resource Conservation and Recovery Act as it applies to cleanups at permitted hazardous waste facilities to include “emerging chemicals of concern, such as PFAS.” The second rule would add nine PFAS compounds as hazardous constituents that may be regulated.[3]
A multidistrict litigation involving numerous states, cities, towns, counties, and private plaintiffs is pending before Judge Richard M. Gergel in the U.S. District Court for the District of South Carolina in association with thousands of lawsuits by and on behalf of public water suppliers against PFAS manufacturers such as 3M, DuPont, Chemours, and Corteva over their use of PFAS in a wide range of consumer products and firefighting foams. On February 8, Judge Gergel allowed a motion for final approval of a $1.8 billion class settlement involving DuPont, Chemours, and Corteva and many of the public water provider plaintiffs, while a $12.5 billion deal with 3M — which a bipartisan coalition of 22 state AGs initially opposed (since withdrawn after 3M dropped the indemnification clause that drew their objection) — remains pending.
The North Carolina lawsuit centers on allegations that Fayetteville Works, a chemical manufacturing facility associated with DuPont, contaminated the environment by using and discharging PFAS. In turn, two co-defendants in the action — Dupont de Nemours (New Dupont) and Corteva — argued that the claims against them lacked merit because they never contractually assumed the liabilities of their predecessor and fellow co-defendant, E.I. du Pont de Nemours (Old Dupont).
Most recently, on February 7, the North Carolina Superior Court issued an order[4] that will significantly affect the trajectory of North Carolina’s lawsuit moving forward. Specifically, it clarified that “Corteva and New DuPont will be held liable if, at a later point in this litigation, Old DuPont is found liable for conduct related to its use, manufacture, and discharge of PFAS.”
Why It Matters
The state AGs have been focused on claims against PFAS manufacturers for some time. This court decision follows a long series of litigation targeting alleged environmental contamination and opens the door to holding a broader swath of companies responsible for the actions of associated entities. Companies in this industry — and beyond — should take note and work to mitigate the risks associated with contractually assuming liability for another entity’s actions.
[1] Ohio AG and DuPont Reach $110M Settlement Over Chemical Contamination | Regulatory Oversight
[2] Tennessee AG Sues More Than 20 PFAS Manufacturers | Regulatory Oversight
[3] Additionally, the EPA has proposed to designate two forms of PFAS, perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS), as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability (Superfund) Act, while an EPA final rule designating maximum contaminant levels in drinking water for PFOA and PFOS is slated for promulgation in September 2024.
[4] NC Department of Justice – ShareFile
*Senior Government Relations Manager
