Attorneys general say DuPont, spinoffs need to pay more in PFAS settlement

OAKLAND, Calif.—A coalition led by California Attorney General Rob Bonta is looking for DuPont and two spinoff companies to pay more than the $1.18 billion that was stipulated in a proposed class action settlement related to PFAS drinking water contamination.

The group of five attorneys general filed an amicus letter Aug. 7 with U.S. District Court Judge Richard Gergel in the Charleston Division of the District of South Carolina, claiming the proposed settlement was flawed in several ways, including that the amount the three companies were ordered to pay.

The attorneys believe the $1.18 billion falls short of what is needed for cleanup costs caused by PFAS.

Besides California, the coalition includes the attorneys general of Arizona, Pennsylvania, Wisconsin and the District of Columbia.

DuPont and spinoff companies Chemours Co. and Corteva Inc. in early June agreed to a resolution of all their PFAS-related drinking water claims with a defined class of public water systems, mainly in the U.S.

Chemours is to pay half, or $592 million, with DuPont contributing $400 million and Corteva paying $193 million. The contribution percentages were determined by a memorandum of understanding that the companies reached in January 2021. Chemours is the producer of Viton, one of the leading fluoroelastomers used in high-end rubber goods.

The $1.18 billion agreement involving Chemours, DuPont and Corteva covers water systems that have detected PFAS at any level, as well as those water districts that require monitoring under U.S. EPA monitoring rules.

This includes systems within the South Carolina aqueous film-forming foam, multi-district litigation, however it is not limited to it.

The five attorneys general said that while the settlement proposal has been improved in several ways, the three companies have declined to pay more than the $1.18 billion stipulated, arguing that the penalty is far less that what is needed to remedy the PFAS contamination caused by the DuPont-related entities to the U.S. drinking water supply.

A revised proposed settlement was filed with the U.S. District Court on Aug. 7 as well, and will need court approval. The attorneys general said they will not oppose it.

"As a result of our negotiations with DuPont, the revised proposed settlement is a better deal for the American people and I am supportive of it moving forward," Bonta said in a news release. "But DuPont must pay far more to address the damage its toxic products have caused, and California will vigorously prosecute its own PFAS lawsuit to ensure the company is held accountable.

"When reviewing future settlements with DuPont or other PFAS manufacturers, we urge the court not to consider the DuPont settlement as a point of reference."

Bonta in July led a coalition of 22 attorneys general in opposing the $10.3 billion settlement 3M Co. agreed to pay over 13 years to assist with drinking water mitigation efforts related to the "forever chemicals."

3M produces Dyneon-brand FKMs and fluoropolymers, but said late last year it will exit all PFAS-related business by the end of 2025.

He said he pushed for changes to both agreements to "protect the interests of Californians, the rights of all states, and to advance a lawsuit that he filed in November 2022 against 20 PFAS manufacturers.

Regarding the case involving DuPont, Chemours and Corteva, litigators said the revised agreement did bring a number of positive revisions that include:

• Providing public water providers with a method for estimating the payout amounts they would receive, rather than having to make opt-out decisions without that information;
• Giving public water providers 90 days to opt out, instead of the 60 days included in the original proposed settlement;
• Withdrawing a requested nationwide injunction, or temporary halt, of other PFAS lawsuits by the states against the three firms; and
• Clarifying that the proposed agreement will not prevent states like California from recovering more money from DuPont.
• But the coalition still argues in its amicus letter that the proposed settlement still falls short in a number of areas. In particular:
• The $1.18 billion does not fully account for the liability of DuPont and the two spinoff firms. They claim it only reflects DuPont's share of the aqueous film forming foams (AFFF) market from 2002 to 2014. Although AFFF is made using PFAS, DuPont has mostly manufactured and sold non-AFFF PFAS products since the 1950s;
• A recent study by the American Water Works Association, an organization that includes public water systems, predicts nationwide costs for PFAS regulatory compliance easily will exceed $1.18 billion figure. If water utilities are unable to cover the full costs of drinking water monitoring and treatment, the AWWA said the costs would need to be passed onto the American residents and businesses; and
• The costs for public water systems in California alone to investigate, test, purchase additional real property to install treatment infrastructure, install that infrastructure, and operate and maintain that equipment for decades also would greatly dwarf the $1.18 billion figure.

"The market-share liability analysis does not reflect DuPont's relative culpability in developing numerous PFAS-containing products and understanding the chemicals' toxic effects well before other defendants," the attorneys general wrote in the letter.

"Despite this knowledge, DuPont continued to sell PFAS-containing products to third parties and consumers without providing adequate notice or warning of the substantial risks PFAS pose to human health and the environment."

Rubber News was not immediately able to reach representatives of DuPont, Chemours or Corteva for comment.

PFAS is the umbrella term given more than 10,000 per- and polyfluoroalkyl substances that are used in a wide range of goods, including high-end applications such as automotive, aerospace, a variety of green initiatives and many others. Some forms of PFAS, mainly long-chain types, have been linked to a variety of harmful effects to both humans and the environment.

The materials currently are under fire on a number of different fronts. The European Union is considering a proposal that could ban all PFAS chemicals if the initiative as currently worded is approved.

The U.S. EPA and a number of states also are at various states of regulatory review, and companies involved in the production and use of PFAS also are the subject of a wide variety of litigation.

Firms that produce and use FKMs and fluoropolymers argue that the PFAS products they utilize are the short-chain variety and should be treated in a different manner than the PFAS chemicals found to be harmful.