Stephen C. Krieble II
Staff Editor, Delaware Journal of Corporate Law, Volume 50
Introduction
Originally invented by 3M in 1938 under the auspices of the Manhattan Project, a class of chemicals commonly referred to as per- and polyfuoroalkyl substances (“PFAS”) have been a major component of modern industrial production.[1] PFAS are commonly referred to as a “forever chemical” because of their remarkable durability and resistance to degradation. The two primary producers of PFAS chemicals historically have been 3M, through its patent, Scotchgard™; and E. I. du Pont de Nemours and Company (“DuPont”), through its line of Teflon™ products.[2] From nonstick cookware and stainproof fabrics, to hydraulic fluid in aircraft, manufacturers have utilized the unique resilience of PFAS in a panoply of products. After over 75 years of mass production, however, the consequences of exposure to PFAS are beginning to crystallize in public consciousness.[3] Further, as recent federal regulations to remediate the chemical’s toxic effects on human health and the environment are implemented, the parties that bear responsibility now struggle to allocate liability. This blog seeks to survey the state of the PFAS-related liability, where the persistent and pervasive industrial chemical is poised to be the subject of the costliest litigation in history, potentially rivaling the sums paid under the historic $200 billion settlements against Big Tobacco.[4]
DuPont’s Conscious Disregard to the Risks of PFAS Exposure
Litigation aimed at recovering harm caused by PFAS exposure began in the early 2000s, when West Virginia farmer Wilbur Tennant alleged that DuPont’s disposal of an unidentified chemical into a local waterway caused the deaths of hundreds of his cows downstream.[5] Discovery in the Tennant suit forced DuPont to turn over decades of internal toxicology research on the chemical.[6] While this documentation was the first time the public was made aware of the harmful effects of PFAS chemicals, it additionally demonstrated DuPont’s consistent attempts to conceal findings adverse to the marketability of its product.[7]
This trove of documentation revealed that DuPont studied the toxicity of PFAS since 1954.[8] By the 1960s, tests performed by both DuPont and 3M indicated the toxic effects of PFAS exposure on animal subjects, including damage to the kidney, liver and spleen.[9] In 1978, 3M informed DuPont that it confirmed the presence of PFAS in the blood of 3M workers.[10] A 1979 DuPont study found that PFAS binds to blood protein rather than breaking down and exiting the body, rendering the chemical “biopersistant”.[11] That same year, an internal survey of DuPont employees at a Teflon plant found heightened instances of liver damage, however the exposed employees were not notified of these findings.[12] By 1980, both DuPont and 3M reassigned female workers from their PFAS-related assignments and duties in response to animal studies indicating a risk of fetal defects.[13]
Starting in 1984, internal documents reveal that DuPont detected unsafe PFAS levels in the drinking water surrounding its Teflon plant in Parkersburg, West Virginia; the same plant charged with polluting Tennant’s farm.[14] In May 1984, DuPont executives held an emergency meeting to discuss the viability of the PFAS product line in light of “incremental liability from this point on if we do nothing as we are already liable for the past 32 years of operation.”[15] DuPont’s decision to not notify the public of the findings of PFAS’ toxicity and pervasiveness are the basis for the imposition of punitive damages.[16] By 1989, 3M’s internal studies found heightened levels of cancer in workers exposed to PFAS.[17] Three years later, DuPont would confirm the 3M cancer studies, finding increased cancer rates among DuPont workers exposed to PFAS.[18]
The Scope of PFAS Exposure
Following settlement of Tennant’s claims, residents of Parkersburg filed a class action against DuPont, seeking the establishment of an extensive community health study to determine the effects of exposure to the PFAS that DuPont had dumped into Parkersburg’s water supply.[19] The results were intended to be the first public confirmation of the causal connection between exposure to PFAS and certain health ailments.[20] The recognized health risks from exposure to PFAS chemicals include fetal defects; developmental effects or delays in children; increased risk of prostate, kidney, and testicular cancers; reduced immune response; ulcerative colitis; and interference with hormones.[21]
The pervasiveness of these forever chemicals has resulted in 98% of Americans having at least one type of PFAS in their system.[22] Compounding the issue of the chemical’s durability, industrial discharge and runoff from widespread use of PFAS products like firefighting foams has led to long-term contamination of public waterways.[23] An estimated 45% of the nation’s tap water is contaminated with at least one type of forever chemical.[24]
A 2024 study found that Wilmington, Delaware residents had elevated levels of PFAS compared to the average concentration of the chemical, detecting at least one type of PFAS in the blood of each resident tested.[25] The study concluded that the heightened levels of PFAS among Wilmington residents were likely a result of common source of contamination, most likely the city’s drinking water.[26]
PFAS Classified as a Hazardous Substance
In addition to liability for the health consequences of exposure to PFAS, producers of the hazardous chemicals will also be liable for the cleanup of contaminated waterways under federal law.[27] In April 2023, the Environmental Protection Agency announced its first regulatory standards for PFAS concentration in drinking water.[28] The Biden Administration urged that these standards will “prevent thousands of deaths and reduce tens of thousands of serious PFAS-attributable illnesses.”[29]
In July 2024, the EPA classified PFOA and PFOS–two of the most widely used forever chemicals–as hazardous materials under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), also known as Superfund.[30] The funds required to remediate hazardous materials under CERCLA will eclipse the liability that manufacturers have since faced for the consequences of exposure to PFAS chemicals.[31] The EPA currently identifies 180 locations as PFAS contaminated sites, including the Dover Air Force Base and the Delaware Sand & Gravel Landfill.[32] As federal PFAS regulations begin implementation, the cost of a historic environmental remediation begin to materialize.
The EPA estimated that the implementation of the PFAS remediation would cost approximately $1.5 billion per year, however the report acknowledges the possibility of “additional unquantifiable costs” associated with implementation of the PFAS regulation. [33] A 2023 report from the Minnesota Pollution Control Agency estimates that the removal of PFAS from the state would cost $14 billion over twenty years.[34]
Current estimates of PFAS remediation are subject to evolving definitions and standardization promulgated by the federal government, identification and classification of additional PFAS contaminated Superfund sites, alterations in the aggressiveness of remediation actions, and potential improvements in technological media and methods. As the EPA is set to initiate enforcement of PFAS regulatory standards in 2025,[35] the parties liable for PFAS pollution come into focus.
Who Bears the Cost of PFAS Clean-up?
While the federal government is largely protected from liability for its role in directing use of PFAS chemicals,[36] congress has committed to allocating significant sums of taxpayer money to address PFAS contaminated drinking water.[37] However, the bulk of remediation funds will be paid by polluters liable under the Superfund law.[38]
Coinciding with increasing public concern regarding forever chemical contaminated drinking water, DuPont opted to spin off its PFAS operation to Chemours in 2015.[39] As part of this transaction, Chemours was assigned all PFAS-related environmental liabilities and agreed to indemnify DuPont for these liabilities.[40] Additionally, the separation agreement provided that the “Indemnification Provisions seek to preclude Chemours from having any recourse against DuPont”, as the parties agree that arbitration “shall be the sole and exclusive remedy for any Dispute.”[41] In 2019, Chemours sued DuPont vastly underestimated PFAS-related liability and seeking limitation of Chemours’ duty to indemnify DuPont.[42]
In assuming DuPont’s environmental liability, Chemours relied on DuPont’s “High End (Maximum) Realistic Exposure” estimations of total PFAS-related environmental liabilities.[43] However, Chemours’ true exposure to PFAS liability is considerably higher than DuPont’s $128 million estimate.[44] For example, DuPont estimated liability relating to PFAS originating from its Fayetteville Works in North Carolina to be $2 million.[45] In February 2019, Chemours reached a settlement with the North Carolina, agreeing to pay over $200 million for remediation of water contaminated by Fayetteville Works.[46]
During this time, DuPont merged with Dow Inc., forming DowDuPont.[47] The world’s largest chemical conglomerate was short lived, however, undergoing another spinoff in 2019.[48] In what has been dubbed “the most complicated action in corporate history”, DuPont separated from Dow, and spun off an additional entity known as Corteva.[49] The transaction resulted in three independent companies: Dow, DuPont, and Corteva.[50]
Congruent with the Chemours’ allegations against DuPont, New Jersey, Ohio, New Hampshire and Vermont commenced actions that similarly claimed that DuPont’s committed fraud in divesting its PFAS liability.[51] New Jersey specifically alleged that the Chemours spinoff was “designed to shield billions of dollars in assets from the PFAS and environmental liabilities that DuPont tried to isolate in Chemours.”[52] New Jersey emphasized that the execution of the Corteva spinoff coincided with the states’ commencement of “four lawsuits against some or all of Old DuPont, Chemours and DuPont Specialty Products, and had warned those entities that remediation would be extremely expensive, exceeding [their] published reserves.”[53] New Jersey additionally asserted that the Chemours spinoff was “purposely designed for bankruptcy” and “a bankruptcy waiting to happen.”[54]
In January 2021, DuPont, Corteva, and Chemours announced a resolution to outstanding PFAS liability.[55] The essential terms of the agreement allocate 50% of DuPont’s legacy PFAS-related liability to be divided among Dupont and Corteva, with Chemours responsible for the remaining 50% of liability.[56] The agreement is not to exceed twenty years or $4 billion of settlement spending, including escrow contributions.[57] Therefore,both DuPont and Corteva will be limited to $2 billion in forever chemical liability under the current agreement, with Chemours set to assume the remaining $2 billion.[58]
Conclusion
Since the Tennant case, approximately $15 billion in settlements have been reached to remediate the continued contamination of the nation’s drinking water and to compensate those injured by exposure to a growing list of recognized forever chemicals.[59] In 2023, 3M agreed to pay $12.5 billion to those injured by firefighting foam that used PFAS, the largest sum under in the history of PFAS litigation.[60] That same year, DuPont, Chemours, and Corteva reached a $1.2 billion settlement to remediate drinking water contaminated by PFAS-laden firefighting foams.[61] Pursuant to the January 2021 resolution of liability, Chemours was responsible for 55% of the total settlement, with DuPont liable for approximately 33% and Corteva with approximately 16%.[62] In conclusion, the company responsible for contaminating North Carolina’s drinking water with a carcinogenic substance was only responsible to pay a third of the damage it caused.
About the Author
Stephen is a second-year law student at Widener University Delaware School of Law and is a Staff Editor for Vol. 50 of the Delaware Journal of Corporate Law. He is the incoming Styles Editor for Vol. 51 of the Delaware Journal of Corporate Law. He graduated from Eastern University, earning his bachelor’s degree with a major in Political Science. While in law school, Stephen has worked at Doroshow, Pasquale, Krawitz & Bhaya in Wilmington, Delaware as a Law Clerk and plans to return for the summer of 2025. Currently, Stephen serves as a Judicial Extern for the Honorable Judge Calvin L. Scott Jr. in the Superior Court of Delaware.
[1] Rudy Molinek, The Long, Strange History of Teflon, the Indestructible Product Nothing Seems to Stick to, Smithsonian Mag. (Aug. 20, 2024), https://www.smithsonianmag.com/science-nature/the-long-strange-history-of-teflon-the-indestructible-product-nothing-seems-to-stick-to-180984920/.
[2] The Devil We Know (Cinetic Media 2018).
[3] See Dark Waters (Participant Media 2019).
[4] Jeffrey Kluger, ‘Forever Chemical’ Lawsuits Could Ultimately Eclipse the Big Tobacco Settlement, Time (July 12, 2023, 7:00 AM), https://time.com/6292482/legal-liability-pfas-chemicals-lawsuit/.
[5] Tennant v. DuPont., No. 99-cv-00488 (S.D.W. Va., filed June 11, 1999); see also Robert Bilott, Exposure: Poisoned Water, Corporate Greed, and One Lawyer’s Twenty-Year Battle Against DuPont, (Atria Publ’g Grp. 2019).
[6] Bilott, supra note 5, at 105–20.
[7] Id. at 250–69, 272; see also CynthiaBergman, EPA Takes Enforcement Action Against DuPont for Toxic Substances Reporting Violations, EPA Newsroom (July 8, 2004), https://www.epa.gov/archive/epapages/newsroom_archive/newsreleases/afdc5785fd9ee05585256ecb00522cee.html.
[8] Bilott, supra note 5, at 282.
[9] Id. at 128–30, 282–84; Jared Hayes, For Decades, Polluters Knew PFAS Chemicals Were Dangerous but Hid Risks from Public, EWG (Aug. 29, 2019), https://www.ewg.org/research/decades-polluters-knew-pfas-chemicals-were-dangerous-hid-risks-public.
[10] Bilott, supra note 5, at 284.
[11] Id. at 289–90.
[12] Id. at 128; Hayes, supra note 9.
[13] Bilott, supra note 5, at 318–19; Hayes, supra note 9.
[14] Bilott, supra note 5, at 124, 139.
[15] Id. at 320.
[16] Id. at 320–24, 386, 560–61; see also Erica Teichert, Jury Orders DuPont to Pay $10.5 Million in Punitive Damages Over Leaked Chemical, Reuters (Jan. 5, 2017, 12:02 PM), https://www.reuters.com/article/markets/us-jury-orders-dupont-to-pay-105-mln-in-punitive-damages-over-leaked-chemica-idUSL1N1EV0Y5/.
[17] Bilott, supra note 5, at 360; Hayes, supra note 9.
[18] Hayes, supra note 9.
[19] See Leach v. E.I. Du Pont de Nemours & Co., No. 01-C-608, 2002 WL 1270121 (W. Va. Cir. Ct. Apr. 10, 2002).
[20] Bilott, supra note 5, at 404–05; see also Stephanie J. Frisbee, et al., The C8 Health Project: Design, Methods, and Participants, 117 Env’ Health Perspectives 1873 (2009).
[21] Human Health Toxicity Assessment for Perfluorooctanoic Acid (PFOA) and Related Salts (2024), Env’t Prot. Agency, https://www.epa.gov/system/files/documents/2024-05/final-human-health-toxicity-assessment-pfoa.pdf (last visited Feb. 20, 2025).
[22] Id.
[23] Kelly L. Smalling et al., Per- and Polyfluoroalkyl Substances (PFAS) in United States Tapwater: Comparison of Underserved Private-Well and Public-Supply Exposures and Associated Health Implications, 178 Env’t Int’l 108033 (2021).
[24] Id.
[25] See Per- and Polyfuoroalkyl Substances (PFAS) Exposure Assessment Report, at 35–36, Nat’l Ctr. for Env’l Health Agency for Toxic Substances and Disease Registry (Feb 2, 2022), https://www.atsdr.cdc.gov/pfas/docs/ATSDR-PFAS-EA-Site-C-NewCastleCounty-Report-508.pdf.
[26] Id. at 40–41.
[27] Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) (Superfund Act), 42 U.S.C. § 9603.
[28] PFAS National Primary Drinking Water Regulation Rulemaking, 88 Fed. Reg. 18638 (Mar. 29, 2023) (to be codified at 40 C.F.R. pts. 141, 142).
[29] Exec. Off. of the President White House Press Release, EPA Announces First-Ever National Standard to Address PFAS in Drinking Water, 2023 WLNR 9480835 (2023).
[30] Designation of Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS) as CERCLA Hazardous Substances, Fed. Reg. 39124 (May 8, 2024) (to be codified at 40 C.F.R. pt. 302).
[31] Bilott, supra note 5, at 169–70.
[32] Superfund Sites Identified by EPA to have PFAS Contamination, U.S. Senate Comm. On Env’t & Pub. Works, https://www.epw.senate.gov/public/index.cfm?p=Superfund-Sites-Identified-by-EPA-to-have-PFAS-Contamination; see also PFAS Contamination in the U.S., Ewg (Nov. 20, 2024), https://www.ewg.org/interactive-maps/pfas_contamination/ (identifying 2,394 sites with PFAS contaminated drinking water).
[33] Benefits and Costs of Reducing PFAS in Drinking Water at 1–3, EPA, https://www.epa.gov/system/files/documents/2024-04/pfas-npdwr_fact-sheet_cost-and-benefits_4.8.24.pdf (last visited Feb. 25, 2025).
[34] Evaluation of Current Alternatives and Estimated Cost Curves for PFAS Removal and Destruction from Municipal Wastewater, Biosolids, Landfill Leachate, and Compost Contact Water at 3, 159, Minn. Pollution Control Agency (May 2023), https://www.pca.state.mn.us/sites/default/files/c-pfc1-26.pdf.
[35] FY 2024 – 2027 National Enforcement and Compliance Initiatives at 4, EPA (Aug. 17, 2023), https://www.epa.gov/system/files/documents/2023-08/fy2024-27necis.pdf.
[36] Sharon Udasin & Rachel Frazin, Formidable Legal Bar Shields Military from PFAS Lawsuits, The Hill (Jan. 27, 2022, 6:00 AM), https://thehill.com/policy/equilibrium-sustainability/590643-formidable-legal-bar-shields-military-from-pfas-lawsuits/.
[37] Superfund Sites, supra note 32 (announcing $9 billion to address PFAS contaminated drinking water).
[38] 40 C.F.R. § 107(a)(3) (holding those liable that “arranged for the disposal or transport of hazardous substances.”).
[39] Chemours Co. v. DowDuPont Inc., No. CV 2019-0351, 2020 WL 1527783, at *2–3 (Del. Ch. Mar. 30, 2020), aff’d, 243 A.3d 441 (Del. 2020).
[40] Id. at *4–5.
[41] Id. at *6.
[42] Id. at *1.
[43] Chemours Co., 2020 WL 1527783 at *4–5.
[44] Id.; see also Suzanne Yohannan, Chemours’ Fraud Charges Against DuPont Could Aid PFAS Damages Claims, 26 Inside EPA’s Risk Pol’y Rep., No. 29 (July 23, 2019).
[45] Chemours Co., 2020 WL 1527783 at *4.
[46] Id.
[47] Al Root, DowDuPont’s 3-Way Split Is Finally Wrapping Up. Here’s What You Need to Know, Barron’s (May 31, 2019, 5:45 AM), https://www.barrons.com/articles/dowdupont-dow-corteva-split-51559252111.
[48] Id.
[49] Id.
[50] Id.
[51] Yohannan, supra note 44.
[52] N.J. Dep’t of Env’t Prot. v. E.I. du Pont de Nemours & Co., No. CV 19-14758, 2021 WL 6064842, at *2 (D.N.J. Dec. 20, 2021) (noting New Jersey’s allegations that DuPont “orchestrated a web of transactions over the past decade to shield significant assets from the State and other creditors”).
[53] Id.
[54] Yohannan, supra note 44.
[55] DuPont, Corteva, and Chemours Announce Resolution of Legacy PFAS Claims,Chemours (Jan. 22, 2022), https://www.chemours.com/en/news-media-center/all-news/press-releases/2021/dupont-corteva-and-chemours-announce-resolution-of-legacy-pfas-claims.
[56] Id.; see also N.J. Dep’t of Env’t Prot. v. E.I. DuPont De Nemours & Co., No. CV 19-14766, 2024 WL 4834906, at *2 (D.N.J. Nov. 20, 2024) (noting that “Corteva is responsible for 29% of Old DuPont’s PFAS liabilities once certain conditions are satisfied”).
[57] Supra note 55.
[58] Id.
[59] Kluger, supra note 4.
[60] Kris Maher & John Keilman, 3M Settles ‘Forever Chemicals’ Litigation for Up to $12.5 Billion, Wall St. J. (June 22, 2023, 10:11 AM).
[61] See Kris Maher, Chemours, DuPont, Corteva Settle PFAS Litigation for $1.185 Billion, Wall St. J. (June 2, 2023, 11:12 AM).
[62] Id.
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