Source: https://www.nj.com, August 2, 2019
By: Michael Sol Warren
They only did it to help win the war. Well, both wars.
Facing major lawsuits filed by New Jersey, chemical giant DuPont is making the argument that its toxic legacy in the Garden State was created at the behest of Uncle Sam as part of war efforts in World War I and World War II.
In court filings, the company says the federal government ordered millions of pounds of chemicals to be produced at four sites across New Jersey during the two World Wars. Because that work was done under a federal contract, DuPont argues that it does not have liability in recent lawsuits filed against the company by New Jersey Attorney General Gurbir Grewal.
The argument helped DuPont get the cased moved from state to federal court, though it’s unclear whether it will be enough to clear the company of liability in the case.
A DuPont spokesman could not be reached for comment.
Earlier this year, New Jersey sued chemical giants DuPont, 3M and Chemours for decades of pollution at four of New Jersey’s most toxic sites, from Carney’s Point to Pompton Lakes.
The resulting contamination left the sites soaked with a mess of health-threatening substances ranging from lead and mercury to volatile organic compounds and per- and polyfluoroalkyl substances (PFAS), according to the state.
The lawsuits seek unspecified millions from the companies in natural resource damages claims — the same kind of legal action that the state took against ExxonMobil, a case settled for $225 million.
DuPont’s federal contract defense offered a glimpse into how it will fight the suit.
In the move, which DuPont filed on July 5, the company argued that it was required to dramatically increase chemical production at all four sites as part of contracts with the U.S. government to support to war efforts in World War I and World War II. Because of this, DuPont asserts was an agent of the federal government.
Removing the cases from state court to federal court is in line with common legal defense strategy, according to Steve Gold, an environmental lawyer who teaches at Rutgers law school.
“A lot of defendants in these cases would prefer to be in federal court,” Gold said “State courts, and in particular state court juries, many defendants view as a risk.”
A spokesman for the state Attorney General’s Office declined to comment. Among its legal options, the state could seek to have the cases remanded back to New Jersey Superior Court.
In the removal filings, DuPont also set up the defense that it is protected from liability for actions taken under government contract. The Federal Tort Claims Act restricts situations in which federal agencies, and civilian contractors acting on behalf of federal agencies, can be sued, Gold said.
This defense still leaves DuPont liable for pollution done by activities not related to a federal contract. But Gold said that the reality of figuring out just how much DuPont is liable could be tricky.
“If you have a giant contaminated mess, and if the court were to agree with DuPont on the government contractor defense, then what fraction of the total contamination ends up being DuPont’s liability and who has to prove that fraction?” Gold said. “That may be what their ultimate substantive strategy is.”
Here’s what happened at each DuPont site, according to court documents.
The Pompton Lakes site saw decades of production of munitions materials by DuPont. The byproducts of that work were dumped in pits and lagoons around the company’s property and found their way into the surrounding environment, according to the state’s complaint.
More than 300 homes in the small Passaic County town still have filtering devices installed to prevent harmful chemicals from seeping into their basements. The site was the subject of an investigation by The Record newspaper and NorthJersey.com last year, which showed contamination was far worse than DuPont had acknowledged.
DuPont entered into multiple contracts with the U.S. during both World Wars according to court filings, for the production of chemical compounds and explosives at the Pompton Lakes site.
DuPont manufactured a wide array of products at this Sayreville site, including camera film and car paint, since the early 20th century. The state said that the company’s activity left the site tainted with PFAS chemicals.
The Parlin site was used to manufacture a variety of products, from gun cotton to insect repellant, under government contracts during World War I and World War II, according to court filings.
This roughly 1,800 acre site in the Gibbstown section of Greenwich Township is the location of DuPont’s first research laboratory. Here the company produced, stored and transported industrial chemicals and explosives like dynamite starting in 1880, according to the state’s complaint.
In court filings, DuPont said that the U.S. government asked the company to produce more than 82,000 pounds of the toxic chemical diphenylamine at Repauno during World War I, and 584,000 pounds of the chemical during World War II.
The country also contracted with DuPont for more than 250,000 pounds of the explosive Pentolite to be produced at Repauno during World War II, according to the filings.
Called “one of the most contaminated sites in New Jersey” by state authorities, the Chambers Works site in Salem County, has manufactured gunpowder explosives and various other chemicals since operations began in 1892. This location is now polluted with metal contaminants, pesticides, PFAS and other cancer-causing materials, according to the state’s complaint.
According to court filings, Dupont was contracted by the federal government to produce a variety of chemicals in massive quantities at Chambers Works during World War II. This included a contract for 1.5 million pounds of dinitrotoluene, which is a cancer-causing chemicalused in explosives, and 20,000 pounds of perfluoroheptane, which is part of the PFAS family of chemicals.