[co-author: Stephanie Kozol]*
On October 26, Delaware Attorney General (AG) Kathleen Jennings filed a lawsuit against fourteen chemical companies for allegedly contaminating the state’s natural resources with per- and poly-fluoroalkyl substances (PFAS) traceable to the use and disposal of aqueous film-forming foam (AFFF), a specialized firefighting foam product widely used at airports and military bases. The suit is the result of an investigation that was conducted over a two-year timeframe that involved environmental sampling, forensic analysis, and a review of corporate records.
According to the complaint, all of the defendants designed, manufactured, marketed, distributed, supplied, and/or sold PFAS-based AFFF products and/or AFFF components that contain or break down into toxic components that, when used as intended, result in significant environmental contamination and pollution with PFAS. As a result, the AFFF manufacturers are responsible for introducing PFAS into Delaware rivers, streams, groundwater, soils, and wildlife. The complaint goes on to say that safer alternatives were available at the time the defendants designed, manufactured, marketed, distributed, supplied, and/or sold the products.
The State also alleges that the defendants failed to provide adequate warnings and instructions and, had defendants been forthright about their products’ chemical properties and the environmental and human health hazards they posed, the Department of Defense (and regulatory agencies) would have taken steps to prevent, control, or minimize the environmental and human health threats from AFFF containing and/or breaking down into PFAS much sooner, or would never have used them in the first place. The complaint specifically calls out defendant 3M Company, claiming that corporate records show that it developed a sophisticated understanding of health and environmental hazards that PFAS posed no later than the 1960s. The AG claims that the remaining defendants likewise knew or, at a minimum, should have known of the dangers to human and environmental health posed by AFFF products, including through information they obtained as part of their participation in trade industry associations.
The AG request that defendants remedy their alleged misconduct in causing contamination of natural resources within the state and exposing Delaware residents to significant health risks, and seeks costs, expenses, and damages associated with the manufacturers’ misconduct.
Why It Matters
Jennings now joins the growing number of state AGs who have brought claims against chemical companies for their alleged roles in putting state residents and drinking water at risk. Continued action in this space demonstrates the emphasis that many state AGs place upon maximizing their authority to hold PFAS manufacturers financially liable for environmental contamination linked to PFAS.
*Senior Government Relations Manager
