PFAS State AG Lawsuits Update: Delaware Enters the Fray

2023 has proven to be an extremely busy year for PFAS state AG lawsuits seeking environmental pollution remediation costs from PFAS manufacturers and AFFF manufacturers. We previously wrote that Illinois (February), Maine (April), Kentucky (April),  Rhode Island, Arizona, Maryland, Oregon, and Washington (all in May), South Carolina (July), and Tennessee and Washington DC (August)  were the latest states seeking hundreds of millions of dollars in PFAS remediation costs. Now, Delaware has joined the fray, bringing the number of state PFAS lawsuits to close to 25 cases, with more expected to be filed. While the lawsuits target 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.

PFAS State AG Lawsuits

The Delaware Attorney General lawsuit seeks PFAS remediation costs from 3M and various AFFF manufacturers. The lawsuit specifically details the extent to which several types of PFAS are found in groundwater, surface water, drinking water, waste treatment byproducts, and various other environmental impact avenues. There is one unique aspect of the Delaware lawsuit as compared to other state lawsuits in that the Delaware case only specifically mentions PFAS contamination at New Castle County Airport and at the Dover Air Force Base. Other state AG lawsuits have more broadly claimed that PFAS contamination is widespread throughout the states. Delaware is seeking costs “in excess of $1,000,000” related to investigating, cleaning up, restoring, treating, and monitoring the state’s contaminated groundwater, surface water, soil and other natural resources.

Implications For Downstream Manufacturers

While the latest state PFAS lawsuit targets PFAS manufacturers and AFFF manufacturers, companies should not dismiss the lawsuits as events 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.

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National Law Review, Volumess XIII, Number 317