General - Law

Senior figures from Dupont, Chemours and Corteva have welcomed a binding memorandum of understanding as the conclusion of a series of long-running and costly legal battles in the US, concerning financial liabilities linked to PFAS. However, experts say that the settlement is likely to be far from the end of the story. 

Globally, the value of the PFAS remediation market has been estimated at some $1 trillion by PFAS lead for consultancy AECOM, Rosa Gwin. PFAS chemicals, and their PFOA and PFOS variants, have been used in non-stick and fire fighting applications for several decades (EA 29-Apr-20). They are also used for metal plating, car waxes and coatings for fabrics and furniture. The compounds, which are highly persistent in human tissue and the environment, have been associated with adverse human health effects, including cancers. DuPont developed a range of PFAS products under the trade name GenX in 2009.

Jake Hurst, principal consultant for global Dutch-based consultancy Arcadis, notes that litigation related to perceived PFAS impacts is becoming more common outside the US. He comments: "While the implications of this latest agreement are hard to predict, they reflect the magnitude and growing awareness of PFAS contamination, particularly with respect to drinking water supplies, and the need for proactive and pragmatic management of potential liabilities."

Environmental consultant Ian Ross, who has advised both the UK and Australian governments and acted as an expert witness on the subject, adds: "The widespread sales of PFAS for use in multiple applications across most industrial and public sectors means that the litigation against DuPont is only the start. A greater understanding of the impact of PFAS on human health and the environment is developing with extremely low standards being set in drinking water, groundwater, soils and surface waters globally."

Trends in litigation

A number of US states are pursuing legal actions against corporations responsible for PFAS contamination. There have been large class actions in Australia (EA 01-Nov-19), where compensation lawyers Shine brought three cases against the Department of Defence amounting to a settlement total of A$212.5m (US$162m) last year. 

In the UK, the Buncefield oil storage plant explosion in Hertfordshire in 2005 led to PFAS ground contamination from fire fighting foam. The chemicals are commonly found in UK public water supplies, at levels above quality standards set by EU law, and it is known that they occur around training sites for firefighters. Extinguishers and fire suppression systems containing PFAS are still widely in use.

Hurst said: "PFAS litigation risks are highly country-specific, reflecting differences in receptor sensitivity and standards, as well as involving companies outside primary manufacturing. Use of advanced PFAS analysis and forensics can be valuable in distinguishing between multiple PFAS sources and understanding background concentrations."

He notes that potential PFAS sources in the UK - and in other countries - include military, wastewater, waste management and industrial sites and said: "Here we are seeing increased regulatory awareness and activity around PFAS, supported by growing groundwater and surface water datasets, for example, from the Chemical Investigations Programme."

He added: "Proposed restrictions of a wider range of PFAS chemicals under the EU’s REACH regulation and revisions to the drinking water directive, reflecting recent lower tolerable weekly intakes values, provide an important backdrop. Tools and expertise are increasingly available, supporting risk-based management of PFAS and the transition to fluorine free products."

From Parkersburg to Hollywood

Featured in a recent high-profile Hollywood film, Dark Waters, in which actor Mark Ruffalo plays real-life environmental attorney Rober Billot, the Wilmington-headquartered company DuPont has been locked in litigation involving residents exposed to contaminated water supplies since the early 2000s. 

Since 2015, class actions have also involved a DuPont spin off company, Chemours, and Corteva, which was formerly DowDuPont’s chemicals division. In 2019, Chemours sued DuPont, alleging that the settlement creating it had potentially saddled the company with unlimited liabilities.

The MoU between the companies follows a ruling by Delaware’s Supreme Court in December. This dismissed Chemours’ legal financial claim against DuPont and said that the disagreement should be settled by arbitration. The MoU creates a 50/50 split of future liabilities over the next 20 years, valued at up to $4bn, relating to pre-2015 conduct. The three companies are to set up a $1bn escrow account.

A joint statement from companies’ CEOs stated: "We are pleased to have reached a settlement agreement related to potential legacy PFAS liabilities. It will provide a measure of security and certainty for our respective shareholders using a transparent process to address and resolve any potential future legacy PFAS matters." Over the past year, the share prices of all three companies have risen.

The trio of firms have also agreed to settle pending Ohio litigation on PFOA, involving 3,500 people, with claims amounting to $83m. The class action relates to emissions from DuPont’s Washington Works, in Parkersburg West Virginia, where Teflon was made. DuPont will contribute $27m, Corteva $27m and Chemours $29m.  But the MoU does not include a $50m jury verdict made against DuPont in Michigan, which DuPont is appealing.

A statement on DuPont’s website says: "DuPont does not make PFOA, PFOS or GenX.  Further, DuPont never manufactured or sold firefighting foam. Across our portfolio, DuPont’s use of other PFAS is a small fraction of the total PFAS used in the world. While our use is extremely small, we’re actively pursuing alternatives to PFAS where possible in our manufacturing processes."