In February 2018, Ohio become the first state to sue DuPont alleging that the company had released perfluorooctanoic acid (PFOA) into the environment.[1] Since then, multiple state attorneys general (AG) have continued to weigh in on DuPont’s alleged role in contaminating the environment with per- and poly-fluoroalkyl substances (PFAS), including recent lawsuits filed by Tennessee[2] and North Carolina.

The various forms of PFAS are commonly referred to as toxic “forever chemicals” because they do not break down in the environment and are a particular problem for public drinking water systems. The owners and operators of sites that are alleged sources of PFAS contamination are subject to an evolving regulatory landscape. Indeed, on February 1, the U.S. Environmental Protection Agency (EPA), announced two proposed rule changes related to PFAS: the first rule would modify its current definition of “hazardous waste” under the Resource Conservation and Recovery Act as it applies to cleanups at permitted hazardous waste facilities to include “emerging chemicals of concern, such as PFAS.” The second rule would add nine PFAS compounds as hazardous constituents that may be regulated.[3]

A multidistrict litigation involving numerous states, cities, towns, counties, and private plaintiffs is pending before Judge Richard M. Gergel in the U.S. District Court for the District of South Carolina in association with thousands of lawsuits by and on behalf of public water suppliers against PFAS manufacturers such as 3M, DuPont, Chemours, and Corteva over their use of PFAS in a wide range of consumer products and firefighting foams. On February 8, Judge Gergel allowed a motion for final approval of a $1.8 billion class settlement involving DuPont, Chemours, and Corteva and many of the public water provider plaintiffs, while a $12.5 billion deal with 3M — which a bipartisan coalition of 22 state AGs initially opposed (since withdrawn after 3M dropped the indemnification clause that drew their objection) — remains pending.

The North Carolina lawsuit centers on allegations that Fayetteville Works, a chemical manufacturing facility associated with DuPont, contaminated the environment by using and discharging PFAS. In turn, two co-defendants in the action — Dupont de Nemours (New Dupont) and Corteva — argued that the claims against them lacked merit because they never contractually assumed the liabilities of their predecessor and fellow co-defendant, E.I. du Pont de Nemours (Old Dupont).

Most recently, on February 7, the North Carolina Superior Court issued an order[4] that will significantly affect the trajectory of North Carolina’s lawsuit moving forward. Specifically, it clarified that “Corteva and New DuPont will be held liable if, at a later point in this litigation, Old DuPont is found liable for conduct related to its use, manufacture, and discharge of PFAS.”

Why It Matters

The state AGs have been focused on claims against PFAS manufacturers for some time. This court decision follows a long series of litigation targeting alleged environmental contamination and opens the door to holding a broader swath of companies responsible for the actions of associated entities. Companies in this industry — and beyond — should take note and work to mitigate the risks associated with contractually assuming liability for another entity’s actions.

[1] Ohio AG and DuPont Reach $110M Settlement Over Chemical Contamination | Regulatory Oversight

[2] Tennessee AG Sues More Than 20 PFAS Manufacturers | Regulatory Oversight

[3] Additionally, the EPA has proposed to designate two forms of PFAS, perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS), as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability (Superfund) Act, while an EPA final rule designating maximum contaminant levels in drinking water for PFOA and PFOS is slated for promulgation in September 2024.

[4] NC Department of Justice – ShareFile

Troutman Pepper State Attorneys General Team

	Ashley Taylor – Co-leader and Firm Vice Chair Ashley is co-leader of the firm’s nationally ranked State Attorneys General practice, vice chair of the firm, and a partner in its Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group. He helps his clients navigate the complexities involved with multistate attorneys general investigations and enforcement actions, federal agency actions, and accompanying litigation.
	Clay Friedman – Co-leader Clayton is a partner in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group and co-leader of the State Attorneys General practice, multidisciplinary teams with decades of experience crafting effective strategies to help deter or mitigate the risk of enforcement actions and litigation.
	Judy Jagdmann 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 Piepgrass Stephen leads the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group. He focuses his practice on enforcement actions, investigations, and litigation. Stephen primarily represents clients engaging with, or being investigated by, state attorneys general and other state or local governmental enforcement bodies, including the CFPB and FTC, as well as clients involved with litigation, with a particular focus on heavily regulated industries.
	Avi Schick 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 Yaghi Michael is a partner in the firm’s State Attorneys General and Regulatory Investigations, Strategy + Enforcement (RISE) Practice Groups, nationwide teams that advise clients on consumer protection enforcement matters and other regulatory issues.
	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 Bado Tim is an associate in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group, where he represents corporations and individuals facing potential civil and criminal exposure. Tim’s experience in government investigations, enforcement actions, and white-collar litigation spans a number of industries, including financial services, pharmaceutical, health care, and government contracting, among others.
	Chris Carlson Chris Carlson 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 Jacobo Natalia is an associate in the firm’s Regulatory Investigations, Strategy and Enforcement (RISE) practice. She focuses her practice on two primary areas: government contracting and state attorney general work.
	Namrata Kang Namrata (Nam) is an associate in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group, based in the Washington, D.C. office. She routinely advises clients on a wide variety of state and federal regulatory matters, with a particular emphasis on state consumer protection laws relating to consumer financial services and marketing and advertising.
	Michael Lafleur 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 Nikdel 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.
	John Sample John is an associate in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group. He focuses his practice on a wide range of general and complex litigation matters, including shareholder disputes, fraud, products liability, breach of contract, and Biometric Information Privacy Act claims.
	Whitney Shephard Whitney is an associate 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 Smith Trey is an associate in the firm’s Regulatory Investigations, Strategy + Enforcement Practice. He focuses his practice on helping financial institutions and consumer facing companies navigate regulatory investigations and resulting litigation.
	Daniel Waltz Daniel is a member of the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group and State Attorneys General team. He counsels clients in connection with navigating complex government investigations, regulatory compliance, and transactions, involving state and federal government contracting obligations. Drawing on his broad experience as a former assistant attorney general for the state of Illinois, Daniel is a problem solver both inside and outside the courtroom.
	Stephanie Kozol Stephanie is Troutman Pepper’s senior government relations manager in the state attorneys general department.