By: Melissa Rheinstadter
After the years of litigation following the DuPont – Chemours spin-off, “PFAS” and “PFOA” gained significant attention in Delaware.[1] The settlement resulting from these actions created an escrow account holding over $1 billion in funding from DuPont, Corteva and Chemours to be used for PFAS clean up, research and litigation.[2] The question posed is whether the large settlement amount overshadows a realistic push towards an actual solution to the “forever chemical.”
I. Per- and Polyfluoroalkyl Substances (“PFAS”)
PFAS (per- and polyfluoroalkyl substances) is an amalgamation of over 5,000 synthetic chemicals.[3] PFAS encapsulates chemicals such as perfluorooctanoate (PFOA), and perfluorooctane sulfonate (PFOS) which have been manufactured since the 1940s to improve the functionality of nonstick coatings on cookware and water-resistant fabrics.[4] PFAS is constantly leeched into the groundwater and agricultural processes through air emissions, spills, and disposal of waste.[5] Because these chemicals are a bio-accumulant they may grow after being discarded, causing substantial frustration within the environmental community towards companies who continue to manufacture PFAS materials.[6] PFAS is found in all three counties of Delaware, the Delaware River and Bay.[7] Recently, scientists have found a correlation, and possible causation, between PFAS exposure and increased cholesterol, birth and developmental defects and increased risks of terminal cancers.[8]
II. The “Spin Off” & Environmental Litigation
DuPont created PFAS by accident, in the late 1930s, which DuPont then called PFOA.[9] Issues ensued significantly later, in 2017, during the “Spin-Off” of Chemours, which led to plenty of suits on its own.[10] Within these suits, Chemours and DuPont disputed the acquisition of DuPont’s environmental liabilities by Chemours.[11] Chemours was effectively a dumping ground for not only DuPont’s environmental suits, but its PFAS as well.[12] When the liability concerns were settled between DuPont and Chemours, both entities were charged with (i) the release of PFAS into the Delaware Bay and River, (ii) the design, marketing, sale, distribution, use or disposal of PFAS, (iii) failure to warn others about the hazards of PFAS and (iv) the corporate transfer of assets and liabilities by the companies.[13] After the accumulation of individual and state suits, it was estimated that Chemours’ environmental liabilities were approximately $4-$6 billion.[14] The suits eventually culminated in a mass settlement on January 22, 2021, during which $4 billion in damages were agreed upon, including a $1 billion escrow account aimed to mitigate the prior PFAS issues, specifically installation of abatement technology and remediation efforts.[15] This is the largest environmental damages recovery Delaware has ever received.[16] Ed Breen, Executive Chairman and CEO of DuPont has stated that,
“this settlement could not have been achieved without the goodwill and assistance of all parties…[which] is borne out of the Companies’ more than 200-year relationship to the State….”[17]
III. Impacts of PFAS Litigation & Settlement Amount
The consistent reference to the monetary settlement amount tends to overshadow the overarching concern of individuals; what happens now? There are currently no federally enforceable limits on PFAS under the Environmental Protection Agency’s Superfund law, and only a handful of states have instituted restrictions on PFAS.[18] Presently, ninety-five cases sit pending in courts around the United States involving harms caused by PFAS damages from DuPont and Chemours.[19] There are 2,300 PFAS contaminated sites within the United States; twelve alone sit within Delaware.[20] Without a substantial effort, we will most likely see a heightened PFAS exposure rate due to increased disposal of chemicals into water sources used for agriculture or drinking, thus further contaminating humans, animals and the environment.
DuPont now has a significant responsibility to all residents of Delaware. Due to this settlement the company will be looked towards for a solution to
“the most insidious pollutant in the last half century.”[21]
State officials acknowledge this responsibility; Collin O’Mara, former secretary of the Delaware Department of Natural Resources and Environmental Control stated,
“this is the most significant environmental cleanup settlement in Delaware’s history.”[22]
DuPont has stated that they plan to eliminate the use of long-chain PFAS, the purchase of firefighting foams, support EPA regulatory efforts, pursue PFAS remediation and research efforts and continue to share their progress in these areas.[23]
About the Author
Melissa Rheinstadter is a third-year law student at Widener University Delaware Law School and serves as the Delaware Journal of Corporate Law’s Pro Bono Chair. She is a member of the Richard S. Rodney American Inn of Court and participates in weekly pro bono activities in Delaware. She hopes to further her career in policy and regulatory work after graduation.
She can be reached at: marheinstadter@widener.edu with any questions or comments.
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[1] In re Chemours Co. Derivative Litigation, C.A. No. 2020-0786-SG, 2021 WL 5050285, at *3 (Del. Ch. Nov. 1, 2021).
[2] John Gardella, $4 Billion PFAS Settlement: Why Downstream Commerce Companies Should be Wary, The National Law Review (Jan. 26, 2021), https://www.natlawreview.com/article/4-billion-pfas-settlement-why-downstream-commerce-companies-should-be-wary; Monica Amarelo, DuPont, Chemours and Corteva Reach $4 Billion Settlement on ‘Forever Chemicals’ Lawsuits, Environmental Working Group (Jan. 22, 2021), https://www.ewg.org/news-insights/news-release/dupont-chemours-and-corteva-reach-4-billion-settlement-forever-chemicals.
[3] § 48:1. Overview of PFAS, 4 Toxic Torts Litigation Guide § 48:1 (Dec. 2021).
[4] Id.
[5] Id.
[6] In re Chemours, 2021 WL 5050285, at *3.
[7] Sophia Schmidt, Delaware Settles with PFAS-Linked Companies to Fund Testing, Cleanup, Delaware Public Media (July 13, 2021), https://www.delawarepublic.org/politics-government/2021-07-13/delaware-settles-with-pfas-linked-companies-to-fund-testing-cleanup.
[8] Schmidt, supra note 7; PFAS in Delaware: Waste and Hazardous Substances, The Department of Natural Resources and Environmental Control (DNREC), https://dnrec.alpha.delaware.gov/waste-hazardous/remediation/pfas/.
[9] Gardella, supra note 2.
[10] Gardella, supra note 2.
[11] Gardella, supra note 2.
[12] In re Chemours, 2021 WL 5050285, at *5-6.
[13] Schmidt, supra note 7.
[14] Schmidt, supra note 7 (State suits included North Carolina, New Jersey and Ohio. In the New Jersey suit, DuPont/Chemours admitted to $1.7 billion in damages. In the Ohio suit DuPont/Chemours admitted to $335 million in damages).
[15] Gardella, supra note 2 (The $1 billion escrow account will only be used for PFAS liabilities before the “spin-off.” This account will not be used for future liabilities.); The Chemours Co. v. DowDuPont Inc., C.A. No. 2019-0351-SG, 2020 WL 1527783, at *4 (Del. Ch. Mar. 20, 2020).
[16] Schmidt, supra note 7.
[17] Schmidt, supra note 7.
[18] Amarelo, supra note 2.
[19] Amarelo, supra note 2.
[20] Amarelo, supra note 2.; PFAS in Delaware, supra note 8.
[21] Michael Clark, Explained: Important Update to PFOA Contamination of Public Drinking Water, Tapinto Rahway (Dec. 20, 2021), https://www.tapinto.net/towns/rahway/sections/health-and-wellness/articles/explained-important-update-to-pfoa-contamination-of-public-drinking-water.
[22] Schmidt, supra note 7.
[23] DuPont Announces New and Sustained Commitments Related to PFAS Chemicals, DuPont (August 28, 2019), https://www.dupont.com/news/dupont-announces-new-and-sustained-commitments-related-to-pfas-chemicals.html.