By Will Atwater
On Friday, three large chemical manufacturers agreed to contribute $1.19 billion to a fund to settle lawsuits brought by water utilities across the country that allege that the companies contaminated drinking water supplies with per- and polyfluorinated chemicals, or PFAS.
This announcement comes as lawsuits — filed by state governments, environmental advocacy groups, water utilities and others — accusing Chemours, DuPont and Corteva of poisoning the environment and causing illness among people with long-term exposure to PFAS are piling up.
Seven years after the Wilmington Star-News first published the announcement about the presence of GenX compounds in Cape Fear River deposited there by DuPont spinoff Chemours, the settlement agreement was met with skepticism by many in the environmental community.
“I am extremely concerned about this, as lawyers are going to make a ton of money off the backs of contaminated communities — and giant chemical corporations are getting out easy,” said Dana Sargent, executive director of Cape Fear River Watch, a Wilmington-based environmental advocacy group.
Cape Fear River Watch sued Chemours in 2018 for discharging the chemical GenX into the Cape Fear River. The action led to a consent order among Cape Fear River Watch, Chemours and the North Carolina Department of Environmental Quality.
The order required Chemours, among other things, to develop and execute a PFAS remediation plan for contaminated air, soil and water for the affected lower Cape Fear River Basin communities.
This area includes New Hanover, Brunswick, Columbus and Pender counties. Like many critics, Sargent believes the pledged funds represent a small fraction of what’s required to address the nationwide problem.
“This settlement comes nowhere near the amount needed to cover the devastation they have caused. It is clear they’re coming out on top; their stocks have gone up as their shareholders see this as their liability issues being behind them,” Sargent said. “I am grateful that, to my knowledge, lower Cape Fear utilities are not participating in this settlement.”
Since the 1940s, PFAS — referred to as “forever chemicals” for their persistence in the environment and the human body — have been used in the manufacturing of oil and water-resistant products, as well as products that resist heat and reduce friction.
More than 12,000 PFAS compounds are almost ubiquitous in nonstick cookware, cosmetics, cleaning products, dental floss, water-resistant clothing and textiles, and in some firefighting foams and firefighting turnout gear.
While there is no definitive evidence about PFAS posing health risks to humans, there is mounting research that suggests links between extended exposure to forever chemicals and weaker antibody responses against infections in adults and children, elevated cholesterol levels, decreased infant and fetal growth, and kidney and testicular cancer in adults.
Settlement funds are only available to municipal water systems with detectable levels of PFAS and systems required to monitor for PFAS per “EPA monitoring rules or other applicable laws,” according to the news release.
Water systems not eligible include those managed by state and federal governments and small systems that currently have no PFAS detected and are not required to be monitored. Also, water utilities in the Cape Fear River Basin are ineligible unless they request to opt in, the release says.
In response to the recently announced settlement, the Cape Fear Public Utility Authority, which would be allowed to opt in based on the guidelines outlined in the agreement, posted a response on its website that states, in part:
“Unfortunately, CFPUA has not been provided with the terms of the agreement and we do not know what compensation CFPUA should expect if it were to participate. Our utility’s financial losses and future financial commitments to address our upstream neighbor’s pollution are substantial, and any settlement must substantially address these damages.
“Litigation will continue until the polluter provides solutions that meet our community needs. CFPUA must consider the best interests of the Authority and the community it serves.”
In 2019, CFPUA, which provides drinking water to more than 200,000 customers in the Wilmington area, started construction on a $43 million granular activated carbon filtration system (now operational) at its Sweeney Water Treatment Plant to remove GenX and other PFAS compounds from the drinking water supply.
CFPUA anticipates spending “$3.7 million for Fiscal Year 2023 [and] $5 million in subsequent years,” according to the utility’s 2022 annual report.
The millions of dollars spent by CFPUA and the ongoing financial burden required to maintain the system are examples of why critics argue that the settlement amount falls short of what’s needed.
“Chemours, DuPont and Corteva’s recent $1.19 billion agreement will not cover the installation of reverse osmosis filters to all 101 water providers in North Carolina, let alone the over 150,000 public water systems in the U.S.,” said Beth Kline-Markesino, founder of North Carolina Stop GenX in Our Water, a grassroots advocacy organization based in Wilmington.
A closer look at the agreement
The following are key points outlined in the agreement, according to the release:
- Chemours will contribute 50 percent (about $592 million), DuPont about $400 million and Corteva about $193 million. The court ordered the money to be deposited in a fund and made available within 10 business days of being approved by the court.
- If the agreement is finalized in 2023, a final ruling will be delivered by the U.S. District Court for the District of South Carolina. Then, those wishing to join the settlement will have a certain amount of time to do so. If not enough water systems join the settlement, the chemical companies can decide to opt out of the agreement.
- If an agreement can’t be reached with plaintiffs, the chemical companies have vowed to defend themselves in court against pending litigation.
Though many environmental advocates argue that the best way to address the issue of PFAS contamination is for manufacturers to stop producing the chemicals, there was a sliver of optimism coming from the North Carolina Attorney General’s office after first hearing about the settlement agreement. Attorney General Josh Stein has filed several lawsuits against Chemours.
“Our office is pleased to see Chemours/DuPont/Corteva beginning to take some responsibility for their actions,” said Laura Brewer, Stein’s communications director.
“We look forward to reviewing the details of the proposed settlement. Based on initial reports, this proposed settlement does not address all of the issues in A.G. Stein’s lawsuit,” she said. “A.G. Stein’s case against these companies continues, and he will continue his work to ensure that the water North Carolinians drink is clean and safe.”