California-led group of AGs gives nod to deal but say Dupont, spinoffs should pay more for ‘forever chemicals’ in public waters

California Attorney General Rob Bonta and four of his colleagues filed an amicus letter Monday, expressing strong concerns about a $1.18 billion sum that DuPont — and spinoffs Chemours and Corteva — said they would agree to pay affected providers.

The attorneys general say they support moving forward with the settlement, but they argue in the new filing that DuPont and the other chemical companies should actually be paying more to address the pollution in public waters caused by “forever chemicals.”

“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 statement, a nod to how the settlement terms have been revised in several important ways since its July 10 filing date.

“But DuPont must pay far more to address the damage its toxic products have caused,” he added.

Joining Bonta in submitting amicus letter were the attorneys general of Arizona, the District of Columbia, Pennsylvania and Wisconsin.

In response to the letter, DuPont spokesperson Daniel Turner explained that “in 2019, DuPont de Nemours was established as a new multi-industrial specialty products company.”

That company, he stressed, is different from legacy E. I. du Pont de Nemours and its history of operations.

“DuPont de Nemours has never manufactured PFOA, PFOS or firefighting foam,” Turner said, referring to two of the most notorious types of PFAS. 

“While we don’t comment on litigation matters, we believe this complaint is without merit, and we look forward to vigorously defending our record of safety, health and environmental stewardship,” he added.

The Hill has reached out to Chemours and Corteva for comment.

The negotiations in question involve a massive class action settlement with public water suppliers that have already detected the presence of cancer-linked compounds known as PFAS, as well as those that might do so in the future.

Known for their ability to linger in both the human body and in the environment, these so-called forever chemicals — or per- and polyfluoroalkyl substances — are found in certain kinds of firefighting foam and in a variety of household items.

DuPont, Chemours and Corteva announced the preliminary version of the $1.18 billion deal with water suppliers in June — separate from another $10 billion settlement proposed by the company 3M to the same providers a few weeks later.

The tentative settlements pertain to multi-district litigation that consolidated thousands of cases against the manufacturers of a PFAS-laden firefighting foam before a federal judge in South Carolina.

The product, known as aqueous film forming foam (AFFF), has long been used to fight fuel-based fires at military bases, civilian airports and industrial sites.

Last month, a group of 22 attorneys general took bipartisan legal action against 3M’s proposed deal — stressing that providers would be bound to the agreement unless they took proactive measures to opt out, without necessarily knowing how much money they could receive.

The group, also led by Bonta, filed a motion to intervene and a document of opposition, also taking issue with 3M’s insistence that the proposal “is not an admission of liability.”

Bonta and his colleagues filed no such motion with regards to DuPont, Chemours and Corteva — and instead filed the Monday amicus letter in which they expressed concern about one element of this settlement’s revised terms: the payout amount.

Their letter, submitted to the U.S. District Court for the District of South Carolina, argued that the $1.18 billion fails to fully count for DuPont’s liability and only reflects the company and its partners’ share of the AFFF market from 2002 to 2014.

With water utilities unable to cover the entire costs of related drinking water monitoring and treatment, they will need to pass costs on to American ratepayers, according to the writers.

The costs for California water systems alone to take samples, install new infrastructure and maintain equipment could easily surpass the $1.18 billion figure, they contended.

Nonetheless, the attorneys general recognized several improvements made by DuPont and its partners in the revised proposal.

“To its credit, DuPont negotiated with a large and bipartisan coalition of states and territories in an effort to address a number of that group’s concerns,” they wrote in the amicus letter.

The officials expressed support for DuPont’s willingness to provide water suppliers with tools for estimating the payouts that they would receive. Under the original deal, they would have had to opt out of the settlement without such data — similar to the terms of the tentative 3M deal.

The public water providers would now also have 90 days to opt out, instead of the 60 days included in the original proposal.

The revised settlement also withdrew a requested nationwide injunction of other PFAS lawsuits by the states against DuPont, while clarifying that the deal would not prevent states from recovering more money from the company.

This clause was particularly important to Bonta, who in November 2022 launched a case that accuses PFAS manufacturers of endangering public health, inflicting irreparable harm upon states’ resources and deceiving the public.

“California will vigorously prosecute its own PFAS lawsuit to ensure the company is held accountable,” Bonta said Monday.

“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,” he added.

This story was updated at 9:38 a.m.