On November 23, 2022, a lawsuit brought by the state of North Carolina was removed to federal court. With the lawsuit, North Carolina became the latest state to file a PFAS environmental remediation lawsuit against manufacturers of certain PFAS and PFAS-containing aqueous film-forming foam (AFFF). The North Carolina PFAS lawsuit only pertains to contamination from two PFAS types – PFOA and PFOS; however, the damages alleged are likely to be extensive, as the state is alleging contamination of groundwater, surface water, soil and biota. The North Carolina PFAS lawsuit will be closely watched by states who are contemplating suing for PFAS remediation and companies who either manufactured PFAS or utilized PFAS as part of their manufacturing process. While the lawsuit targets a narrowly tailored set of companies, lawsuits in other states have already demonstrated that downstream commerce corporations are at risk of being involved in lawsuits seeking hundreds of millions of dollars.

North Carolina PFAS Lawsuit

The lawsuit targets three distinct groups of companies – (1) PFAS manufacturers; (2) PFAS distributors and (3) aqueous film forming foam (AFFF) manufacturers and suppliers. The state Attorney General alleges that the defendants manufactured AFFF (or the PFAS used therein), which was then used extensively at Marine Corps Base Camp Lejune and Marine Corps Air Station New River. The lawsuit details that the bases house over 170,000 people, 33 daycare centers, 34 medical centers, and 29 schools combined. The damages sought by the Attorney General include costs associated with the state’s past, present and future efforts to tackle PFAS environmental pollution. The future costs would include investigative costs to determine the full scope of the pollution, remediation costs, proper disposal of PFAS-contaminated water and solids, and monitoring for future pollution.  The state is also seeking to void asset transfers DuPont made to its spinoff companies, which it alleges were done in an attempt to avoid liability.

Implications For Downstream Manufacturers

While the North Carolina PFAS lawsuit targets PFAS manufacturers and AFFF manufacturers, companies should not dismiss the lawsuit as an event unlikely to impact them in any way. On the contrary, in other states, including California, companies have been directly named as defendants in lawsuits seeking billions of dollars in PFAS remediation costs. Corporations should not ignore the pollution and environmental contamination issues that PFAS pose, as states, federal and state regulatory agencies, and even private citizens are actively seeking damages from companies that they believe placed PFAS into the environment. All companies of all types would be well advised to conduct a complete compliance audit to best understand areas of concern for PFAS liability issues, and ways to mitigate PFAS concerns.