By Greg Barnes
North Carolina Attorney General Josh Stein filed a lawsuit Tuesday saying the Chemours and DuPont chemical companies need to be held accountable for contaminating the state’s natural resources with per- and polyfluoroalkyl substances, known as PFAS.
“DuPont and Chemours dumped PFAS into our state’s drinking waters when they knew that these forever chemicals are dangerous to humans,” Stein said in an interview with NC Health News. “It puts profits ahead of people and that’s why I’m taking this action against these companies. I want them to pay for the mess they created.”
Chemours, which operates a chemical plant along the Cape Fear River in Bladen County, said in a statement Tuesday evening that it is reviewing the lawsuit and touted its ongoing PFAS cleanup efforts. DuPont had operated the plant from the early 1970s until 2015, when a new company, Chemours, spun off from Dupont.
Polluting since the 1980s
Since at least the early 1980s, Dupont and later Chemours discharged GenX and other potentially cancerous PFAS into the river, contaminating drinking water for residents of New Hanover, Brunswick and Pender counties. The compounds also were released in the emissions from the companies’ vent stacks, contaminating private drinking water wells for more than 3,000 people who live near the plant.
What are PFAS?
Per- and polyfluoroalkyl substances (PFAS) are a group of man-made chemicals that includes PFOA, PFOS, GenX, and an estimated 5,000 types of PFAS, none of which are federally regulated. PFAS have been manufactured and used by industries worldwide since the 1940s, used in everything from Teflon pans to raincoats to dental floss. They are also used in firefighting foams.
The two most extensively produced and studied, PFOA and PFOS, have been phased out in the U.S., but they don’t break down easily and can accumulate in the environment and in the human body. There is evidence that exposure to PFAS can lead to adverse human health effects.
In February 2019, the state Department of Environmental Quality, along with the Southern Environmental Law Center and Cape Fear River Watch, entered into a consent order with Chemours that requires the company to pay $12 million in civil fines and remove virtually all PFAS from the air and the river.
On Monday, Bladen County Superior Court Judge Douglass Sasser approved an addendum to the consent order that requires Chemours to take significant additional action to reduce PFAS from entering the river.
Stein said that action is related to but separate from his lawsuit, which seeks an unspecified amount in monetary damages against Chemours and DuPont.
“My action is a separate and additional action against DuPont and Chemours for the damage done to the state of North Carolina and our natural resources,” Stein said.
Amount Stein seeks not yet determined
The 58-page lawsuit was filed in Cumberland County Superior Court. Stein said he expects to provide a value of the damages caused by the companies once more investigative work has been completed and the cost of remediation can be determined.
“The State seeks a judgment requiring Defendants pay all past and future costs necessary to investigate, assess, remediate, restore, and remedy the harms the PFAS Defendants caused in North Carolina as a result of operations at the Fayetteville Works (plant),” the lawsuit reads. “This includes, but is not limited to, any and all damages available for injuries to all natural resources; for property damages; for economic damages; for punitive damages; for restitution; for disgorgement; and for any and all other damages, costs, and equitable relief to which the State may be entitled.”
This is the first lawsuit related to PFAS that Stein has filed since announcing in August that he would launch an investigation against manufacturers and others that pollute the state’s waterways with PFAS.
Stein would not say whether any other companies have been identified as polluters.
“At this point,” he said, “it would be premature to talk about any other actions. I will say this is the first action, the first case, that I brought as a result of this investigation that I announced In August, and there may be others.”
Stein said lawyers from his office, along with those from the international law firm Kelley Drye & Warren, will begin working on the lawsuit while the investigation into other polluters continues. Kelley Drye & Warren, which is based in New York, represents several other states in PFAS litigation against polluters.
Stein said Kelley Drye & Warren will be compensated through contingency fees, meaning the law firm would get a certain percentage of any monetary awards. But Stein said he did not know the percentage.
“I do not know what it is precisely,” he said. “I know that it varies depending on the amount of the award and that it is fully compliant with North Carolina law.”
In a similar contract with New Jersey, Kelley Drye & Warren would get 10 percent of any amount recovered above $300 million if the case is resolved before trial. It would get 15 percent for an award between $100 million and $300 million, and 20 percent for an award between $3 million and $100 million, according to Legal Newsline. The figures would go up some if the case goes to trial.
Stein said the state Department of Justice does not have enough lawyers with environmental expertise to handle the case by itself.
Stein also alleges in his lawsuit that DuPont withheld financial information from Chemours and the state on the cost of environmental cleanup.
“We allege that DuPont engaged in a series of corporate transactions, which were a complex scheme designed to shield billions of dollars and assets from the state,” Stein said. “Essentially, they left Chemours holding the bag with all the liabilities and stripped out a large percentage of the assets into the new DuPont company.”
Chemours sued DuPont last year over the same allegations. A Delaware judge in March granted DuPont’s request to dismiss the lawsuit, finding that he had no jurisdiction because a separation agreement between the companies says that all disputes arising from the spinoff of Chemours are subject to binding arbitration, according to The Associated Press. Chemours has appealed to the Delaware Supreme Court.
Stein said his lawsuit is motivated by the need to hold DuPont and Chemours accountable. He said it has nothing to do with the Nov. 3 election against Republican opponent Jim O’Neill.
The issue of PFAS contamination in North Carolina waterways does not pertain solely to DuPont and Chemours. State regulators have discovered elevated levels of the compounds — as well as a probable carcinogen called 1,4 dioxane — throughout much of the Cape Fear River Basin, from Greensboro to the coast.
The state has known about PFAS in the basin at least since 2007, when researchers from the U.S. Environmental Protection Agency published a report on them in Environmental Science & Technology Letters. In 2016, N.C. State researcher Detlef Knappe and his colleagues published another study about PFAS in the lower Cape Fear River.
But it was not until June 2017 that the public became widely aware of the contamination after the Wilmington StarNews wrote a series of articles about it.
Since then, the DEQ has taken action to stop Chemours from polluting and has looked for — and found — PFAS coming from industries and wastewater treatment plants throughout the river basin.
Meanwhile, university researchers have been studying the potential human health effects caused by GenX and other PFAS. DuPont and Chemours manufactured GenX and its predecessor — PFOA — for use in making Teflon and other nonstick products, including food packaging, rainproof clothing, stain-resistant carpeting, firefighting foam and a wide array of other household products. Chemours is believed to have produced at least 54 different types of PFAS.
Studies on laboratory animals show that GenX and other PFAS can cause liver and kidney damage, high cholesterol, ulcerative colitis, preeclampsia, low birth weight and reduced vaccine response in offspring. Less is known about the effects in humans. The compounds don’t break down easily in the environment and accumulate in the body, which is why they are called “forever chemicals.”
“Among other things, this case involves contamination of a large portion of North Carolina by chemicals that scientists continue to study, seeking to further understand the scope and extent of their adverse effects on human health and the environment, as well as remedial measures to minimize their impacts on the people and ecology of the state.” the lawsuit says.
In its response to the lawsuit, Chemours said “it has taken definitive action to address active emissions and historic deposition at our Fayetteville site, and continues to do so. Chemours has cooperated with the State of North Carolina to address PFAS concerns, and has agreed to a court- approved Consent Order and its addendum, which was entered by the court yesterday.
“Our investment in emissions control technology has significantly decreased GenX emissions by 99% and our thermal oxidizer continues to destroy PFAS with greater than 99.99% efficiency. We continue to decrease PFAS loading to the Cape Fear River and began operation on September 30, 2020 of a capture and treatment system for one pathway at the site. Under the CO Addendum, Chemours will take a number of measures to address PFAS loadings from other pathways, including onsite groundwater to the Cape Fear River.”