DuPont says US government made it pollute

In documents filed last month in New Jersey federal district court, DuPont acknowledges it left fluorochemical and explosive contaminants behind at four major New Jersey operations. But the firm claims that it did so as a result of work required by the federal government during World Wars I and II.

DuPont’s assertion came to light as the firm attempts to shift suits filed in state courts by New Jersey attorney general Gurbir S. Grewal to federal jurisdiction.

The dispute dates back to March when New Jersey ordered DuPont and Chemours—the DuPont spin-off that owns the contaminated sites—to investigate and clean up poly- and perfluoralkyl substances (PFAS). Scientific studies suggest that exposure to some PFAS may cause serious health problems.

At about the same time, the state filed four lawsuits against DuPont and Chemours in state court seeking clean up at the sites of PFAS contamination as well as contaminants which include volatile organic compounds, metals, pesticides, and polychlorinated biphenyls.

In attempting to move the state lawsuits to federal court, DuPont now argues that its work on behalf of the government shields it, in part, from having to pay damages and remediate the four sites—Carney’s Point, Repauno, Parlin, and Pompton Lakes—most of which date back to the 19th century.

A DuPont official said the firm wouldn’t comment on the pending litigation. He did acknowledge a $500,000 natural resource damage settlement with New Jersey in 2005 but would not say whether that could shield the company from some state claims.

DuPont appears to be using a “government contractor defense,” says William L. Warren, an environmental attorney at the law firm Drinker Biddle & Reath. In the most famous example, Dow Chemical, Monsanto, and other chemical makers successfully used the defense against Vietnam veterans who claimed that exposure to the defoliant Agent Orange made them ill.

But even if DuPont wins on the government-work defense, Warren says, the state will likely still sue on emissions not related to that work.