The State of Delaware and E. I. du Pont de Nemours and Company, The Chemours Company, DuPont de Nemours, Inc. and Corteva, Inc. (all “DuPont” related companies), businesses having operated in the State for more than 200 years, announced a sweeping settlement agreement last week.
Under the settlement agreement, the DuPont agreed to pay $50 million for environmental restoration, improvement, sampling and analysis, community environmental justice and equity grants, and other natural resource needs. The Companies will fund up to an additional $25 million if they settle similar claims with other states for more than $50 million. The settlement resolves the DuPont’s responsibility for damages caused by releases of historical compounds within or impacting the State, including per- and polyfluoroalkyl substances (generically referred to as “PFAS”), subject to certain limitations and preservations.
As I described in an earlier blog, PFAS in a Phase I Environmental Site Assessment?, a peer reviewed study cited approvingly by the EPA describes 99.7% of Americans have a detectable PFAS in their blood! The EPA reports, “there is evidence that exposure to PFAS can lead to adverse health outcomes .. studies indicate that PFAS can cause reproductive and developmental, liver and kidney, and immunological effects in laboratory animals, .. and have caused tumors in animal studies.”
And troubling is that after use in making things slippery, nonstick or waterproof, PFAS chemical bonds are so stable and PFAS is very persistent in the environment and in the human body, meaning these chemicals don’t break down, accumulating over time, and as such have been referred to ‘forever chemicals’ making them an emergent environmental catastrophe.
DuPont was and is involved in the development of PFAS and consumer and industrial products made with PFAS.
$50 million might sound like a big number, but in a cost allocation dispute among the DuPont related companies, according to media reports DowDuPont, Inc. agreed in January to pay agreed to pay Chemours $4 Billion in an arbitration.
And as part of that settlement, the DuPont related companies paid $83 million to resolve nearly 100 cases scheduled for trial in federal court in Ohio. That settlement brings to $753 million the total DuPont damages claim related companies have paid to resolve about 3,600 PFAS suits.
Some have suggested the history of DuPont, from the first gunpowder it made there through the manufacture of Teflon, is the history of Delaware, the first state to ratify the U.S. Constitution, and this ‘sweetheart’ settlement recognizes that. Moreover, while there is today no federal PFAS regulation, this is in advance of any rulemaking by the federal government, something the new Biden Administration has promised. However, many legal commentators observing that President Biden having represented Delaware for 36 years in the U.S. Senate and still calls the state home, is unlikely to implement any environmental policy that does real damage to Delaware’s favorite son, DuPont (including not to Chemours, who much of that liability, possibility more liability than is held by any other company, was transferred to when it was spun off from DuPont in 2015).
The settlement is the first time a Delaware Attorney General has resolved a natural resources damages claim on behalf of the state. These dollars will be used for “purifying drinking water” for all impacted state residents, including more sampling and testing to ascertain the presence of PFAS.
You care about this settlement because despite that the first PFAS case was commenced nearly 20 years ago, the number of cases is today growing exponentially including that new companies that are far downstream from the chemical manufactures are being sued. That type of judicial redress may be more efficacious than new, after the fact laws and regulations (i.e., PFAS is already permeated in nearly every body and every thing). For example, legislating PFAS as a hazardous substance under the Superfund law is not perceived as an efficient public policy.
The settlement agreement is a fascinating read about PFAS contamination.
Everyone should be aware of how pervasive PFAS is in the economy and the environment, and the associated risk associated with this forever chemical, including what will no doubt be emergent litigation as the legal system catches up to the science and balances the equities. And all of this a prime example of the judicial branch of government working well, using existing laws, to make bad corporate actors pay those who have been wronged. Maybe we should let this play out before attempting to enact new federal laws.