Attorney General Bonta Leads Coalition in Calling for DuPont to Pay More for Contaminating Americans’ Drinking Water Supply with Toxic PFAS

OAKLAND – Leading a coalition of five attorneys general, California Attorney General Rob Bonta today filed an amicus letter expressing strong concerns over the amount of money that DuPont and two spin-off companies would pay under a proposed class action settlement with public water providers. While the proposed settlement has been revised in several important ways at the request of states led by Attorney General Bonta, DuPont declined to pay more than the $1.18 billion set forth in the original proposed settlement filed on July 10, 2023. In their amicus letter, the five attorneys general underscore that $1.18 billion falls far short of the amount needed to remediate the PFAS contamination caused by DuPont to Americans’ drinking water supply. Revisions to the proposed settlement, which were also filed today, remain subject to court approval.

“As a result of our negotiations with DuPont, the revised proposed settlement is a better deal for the American people and I am supportive of it moving forward,” said Attorney General Bonta. “But DuPont must pay far more to address the damage its toxic products have caused, and California will vigorously prosecute its own PFAS lawsuit to ensure the company is held accountable. When reviewing future settlements with DuPont or other PFAS manufacturers, we urge the court not to consider the DuPont settlement as a point of reference.”

With his opposition to 3M’s proposed PFAS settlement last month, this marks the second coalition that Attorney General Bonta has led to prevent manufacturers from shirking their responsibilities to address PFAS contamination. The California Attorney General’s Office would not fall within the scope of either of the proposed settlement agreements. Attorney General Bonta pushed for changes to both agreements to protect the interests of Californians, the rights of all states, and to advance a lawsuit that he filed on November 10, 2022 against 20 PFAS manufacturers. He continues to vigorously prosecute that case. 

In their amicus letter to the U.S. District Court for the District of South Carolina, the California-led coalition writes that:

• $1.18 billion does not fully account for DuPont’s liability. Instead, the amount only reflects DuPont’s share of the aqueous film forming foams (AFFF) market from 2002 to 2014. Although AFFF is made using PFAS, DuPont has mostly manufactured and sold non-AFFF PFAS products since the 1950s.
• A recent study by the American Water Works Association, a major membership organization that includes public water systems, predicts nationwide costs for PFAS regulatory compliance that dwarf the $1.18 billion figure. With water utilities being unable to cover the full costs of drinking water monitoring and treatment, they will need to pass costs on to ratepayers — American residents and businesses.
• The costs for public water systems in California alone to investigate, test, purchase additional real property to install treatment infrastructure, install that infrastructure, and operate and maintain that equipment for decades would also easily dwarf the $1.18 billion figure.
• In California alone, statewide costs to investigate, monitor, and treat PFAS in drinking water will reach untold billions of dollars. The California State Water Resources Control Board operates financial assistance programs that assist water systems with certain PFAS remediation costs and has already received 18 applications, with a collective project cost of over $633 million.

In their letter, the attorneys general acknowledge that while the original proposed settlement suffered from several fatal problems, DuPont has agreed in the revised proposed settlement to:

• Provide public water providers with a method for estimating the payout amounts they would receive. Under the original proposed settlement, they would have had to make their opt-out decisions without that information. 
• Give public water providers 90 days to opt-out, instead of the 60 days included in the original proposed settlement. 
• Withdraw a requested nationwide injunction, or temporary halt, of other PFAS lawsuits by the states against DuPont.
• Clarify that the proposed agreement will not prevent states like California from recovering more money from DuPont. 

PFAS have been widely used in consumer products including food packaging, cookware, clothing, carpets, shoes, fabrics, polishes, waxes, paints, and cleaning products, as well as in firefighting foams designed to quickly smother liquid fuel fires. In 2021, the California Legislature passed and Governor Newsom signed Assembly Bill 1200, which restricts the manufacture, distribution, and sale of food packaging that contains PFAS and requires manufacturers of cookware to disclose the presence of certain chemicals on the internet or product label. 

Joining Attorney General Bonta in filing the amicus letter are the attorneys general of Arizona, the District of Columbia, Pennsylvania, and Wisconsin.

A copy of the amicus letter is available here, and a copy of the consent motion with the revisions to the proposed settlement is available here.