A recent DuPont settlement in Ohio triggers additional payments to Delaware under a 2021 agreement.  In June 2021, (i) E. I. du Pont de Nemours and Company, (ii) Corteva, Inc., (iii) The Chemours Company, and (iv) DuPont de Nemours, Inc. (collectively, “DuPont”) entered into a broad settlement agreement resolving Natural Resource Damage claims with the State of Delaware regarding per- and polyfluoroalkyl substances (“PFAS”) and a host of other chemicals.

While Delaware never filed a complaint before reaching the settlement, the State alleged in the settlement that the companies manufactured PFAS-containing products and operated in (and around) Delaware for over 200 years. The State claimed some or all of the companies engaged in various operations, including “(i) manufacturing operations at facilities such as Chambers Works, the Newport Plant, Stine Haskell Lab, and the Glasgow facility; (ii) disposal practices at facilities such as Army Creek Landfill, Delaware Sand & Gravel, and Tybouts Corner; (iii) other use of chemical and materials research facilities such as the Experimental Station; and (iv) administrative operations at their headquarters in Wilmington.” As such, Delaware contended the companies developed, used, and disposed of PFAS and other chemical substances in the State.

The companies settled with Delaware for $50 million, with the money entering a “Natural Resources and Sustainability Trust.” The fund was earmarked to cover environmental media assessments, natural resource enhancement projects, environmental and natural resource research and development, and environmental justice grants. Importantly, the settlement agreement contained a trigger for a conditional future payment if the same companies settled with any other U.S. state over PFAS Natural Resource Damages for more than $50 million within eight years of the 2021 agreement and if the terms of that settlement were similar to the 2021 agreement. If these conditions are satisfied under the 2021 settlement, the companies are required to pay Delaware an additional sum not to exceed $25 million. Delaware must reasonably and exclusively determine whether the future potential settlement with another state was so similar to the 2021 agreement to fall under this provision.

In 2023 (i.e., less than eight years from the 2021 agreement), DuPont companies settled with the State of Ohio over a 2018 lawsuit stemming from allegations that the companies released PFAS-containing emissions into the air and PFAS-containing discharges into the Ohio River. Specifically, the parties settled for $110 million (i.e., more than $50 million) for chemical contamination from DuPont’s former Washington Works facility in Parkersburg, West Virginia (near Ohio’s border). As a result of the Ohio settlement, Delaware will now receive an additional $25 million under the DuPont settlement, bolstering its capacity to enhance its natural resources.