On November 29, Ohio Attorney General (AG) Dave Yost and Governor Mark DeWine announced a proposed $110 million settlement with Du Pont De Nemours and Co. and The Chemours Company over alleged chemical contamination from DuPont’s Washington Works facility in Parkersburg, WV, right across the border from Washington County, OH.
On February 8, 2018, Ohio became the first state to challenge Dupont in court when Governor DeWine, then the Ohio AG, filed a lawsuit against the company, alleging that over the course of six decades it had released at least 500,000 pounds of perfluorooctanoic acid, which is known as PFOA or C8, into the Ohio River and the air, causing significant damage to human health and the environment. PFOA has been connected to kidney and testicular cancer, thyroid disease, low birth weight, and high cholesterol, and persists for a long time once it is in the environment.
The complaint alleged that Dupont continued to release vast quantities of PFOA in the groundwater, drinking water, soil, and air surrounding its plant even after it knew that PFOA was toxic to humans and the environment. Further, the lawsuit claimed that DuPont intentionally concealed the dangers of PFOA from governmental entities, and the public at large, in an effort to protect its profits and avoid responsibility for any resulting injuries or damage. In 2017, DuPont and Chemours agreed to pay $670 million to settle thousands of personal injury lawsuits citing health problems related to the company’s use of PFOA.
The settlement, which is currently pending court approval, calls for a lump sum payment to ensure that the state will have assets to address the issues should the company become insolvent. The agreement establishes an environmental restoration fund, allocating the $110 million as follows: (i) 80% to address pollution from the Washington Works plant; (ii) 16% to address damages from firefighting foam; and (iii) 4% to mitigate damages to natural resources. The settlement also grants the state authority to set, regulate, and enforce more stringent drinking water standards in the future, whether dictated by the U.S. Environmental Protection Agency or the Ohio Environmental Protection Agency, for any per- and polyfluorinated substances (PFAS) or other hazardous substance.
Why It Matters
Ohio’s lawsuit is one of many against DuPont and others who used PFAS in the manufacturing process. This action demonstrates the emphasis that many state AGs place upon maximizing their authority to hold PFAS manufacturers financially liable for their alleged roles toward environmental contamination linked to PFAS. More broadly, this action is consistent with the traditional role that AGs play in seeking to both stop and/or mitigate harm to the environment and the health of citizens, and to hold companies financially responsible for the impact of industrial activity that has resulted in extensive damage.
Troutman Pepper State Attorneys General Team
|Ashley Taylor – Co-leader and Firm Vice Chair
Ashley is a partner in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group and co-leader of the State Attorneys General practice. He focuses primarily on federal and state government regulatory and enforcement matters involving state attorneys general, the Consumer Financial Protection Bureau (CFPB), and the Federal Trade Commission (FTC). Drawing upon his experience as a deputy attorney general, Ashley has developed an extensive consumer practice with regard to the consumer financial services industry.
|Clay Friedman – Co-leader
Clay is a partner in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group and co-leader of the State Attorneys General practice. Informed by nearly a decade in a state attorneys general office, and more than 25 years in private practice, Clay spends much of his time representing clients in singular or multistate regulatory actions. Clay has repeatedly led teams before all 50 state attorneys general and also handles matters with the Federal Trade Commission, the Consumer Financial Protection Bureau, and other local, state and federal agencies.
Judy is a partner in the firm’s Regulatory Investigations, Strategy and Enforcement (RISE) practice, based in the Richmond office. She brings experience serving as chair and commissioner of the Virginia State Corporate Commission (VSCC) from 2006 through 2022, which includes regulating the utilities, insurance, banking, and securities industries. She also served as Virginia’s attorney general from 2005-2006.
Stephen represents clients interacting with, and being investigated by, state attorneys general and other enforcement bodies, including the CFPB and FTC, as well as clients involved with litigation, particularly in heavily regulated industries.
A former deputy attorney general of New York, Avi applies his experience in bet-the-company matters, representing clients in criminal and civil investigations and enforcement actions before state and federal regulators, prosecutors and enforcement agencies.
Michael handles high-profile state attorneys general, FTC, and CFPB investigations by advising clients through these complex government inquiries. He assists clients through the entire life cycle of investigations, from regulatory enforcement through formal litigation.
|Samuel E. “Gene” Fishel
Gene is a member of the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) practice, based in the Richmond office. He brings extensive regulatory experience, having most recently served as senior assistant attorney general and chief of the Computer Crime Section in the Office of the Attorney General of Virginia, and as special assistant U.S. attorney in the Eastern District of Virginia for 20 years.
Tim is an attorney in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group, with a primary focus on financial services litigation.
Chris represents clients in regulatory, civil and criminal investigations and litigation. In his practice, Chris regularly employs his prior regulatory experience to benefit clients who are interacting with and being investigated by state attorneys general.
Natalia is an associate in the firm’s business litigation practice. She recently received her J.D from the University of California, Davis School of Law.
Namrata is an associate in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group, based in the Washington, D.C. office. Her work includes advising clients in regulatory investigations and compliance matters, in addition to representing clients in civil litigation matters.
Michael is an associate in the firm’s Regulatory Investigations, Strategy, and Enforcement Practice Group. Based out of the firm’s Boston office, Mike has deep experience in litigation, investigations, and other regulatory matters involving state-level regulators and state attorneys general.
Susan is an associate in the firm’s Consumer Financial Services Practice Group, and focuses her practice on consumer financial services matters. She has defended several of the nation’s largest and most influential financial institutions in individual and class action litigation involving the Telephone Consumer Protection Act (TCPA), Fair Credit Reporting Act (FCRA), Fair Debt Collection Practices Act (FDCPA), and other consumer privacy statutes. Susan also represents banks, fintechs, and financial services companies in connection with regulatory examinations and investigations brought by the CFPB, state attorneys general, and the California Department of Financial Protection and Innovation.
John represents clients in a wide variety of general and complex litigation matters, shareholder disputes, products liability, and privacy claims.
Whitney is an attorney in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group. She represents clients facing state and federal regulatory investigations and enforcement actions, as well as related civil litigation.
Trey is an associate in the firm’s Regulatory Investigations, Strategy + Enforcement practice. His experience includes serving as a summer associate at the firm in 2021.
An experienced litigator, Daniel advises and represents regional, national and international companies, financial institutions and insurers in all facets of business, complex commercial and insurance coverage litigation. He is committed to working with his clients to find creative solutions to meet their needs.
Stephanie is Troutman Pepper’s senior government relations manager in the state attorneys general department.