Environment

Attorney General Josh Stein suing DuPont, Chemours over toxic PFAS contamination in drinking water

(Illustration: EnviroScience Inc.)

Attorney General Josh Stein today filed a lawsuit against DuPont and Chemours, alleging they covered up the discharge and release of toxic PFAS, including GenX into the drinking water and air, even though the companies knew the compounds were harmful.

PFAS is short for perfluorinated compounds, of which there are at least 7,000, according to the EPA. They are commonly used in many consumer products, such as Teflon pans, microwave popcorn bags, water-resistant clothing, and stain-resistant furniture.

They are also present in firefighting foam, but that use is not part of today’s filing.

PFAS, also known as forever chemicals, resist biodegradation, are mobile, persist in the environment, such as water and compost, and accumulate in living organisms – including people. These chemicals are harmful to human health. They can cause kidney and testicular cancer, thyroid disease, ulcerative colitis, cholesterol, hypertension, and damage to the immune system.

The chemicals have been found in the drinking water, surface water, blood and urine of an untold number of North Carolinians who have been exposed to them.

The 58-page lawsuit, filed in Cumberland County Superior Court, seeks to hold both Chemours and DuPont accountable for the damages they have caused to North Carolina’s drinking water supplies, fisheries, and other natural resources. It also asks the court to void certain corporate transactions among the companies — a complex scheme designed to shield billions of dollars in assets from the State and others who the companies knew were damaged by their conduct.

Chemours could not be immediately reached for comment. Update: 5:11 pm with comments from Chemours:

“We are currently reviewing the filing in detail.  Chemours has operated as an independent company since July 1, 2015.  Since that time, Chemours 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.”

Attorney General Josh Stein

According to the complaint filed today, DuPont and Chemours have contaminated the land, air, water, and other valuable natural resources around their Fayetteville Works Facility, in the Cape Fear River, and in downstream communities with PFAS for decades.

“From the beginning of their operations at Fayetteville Works,” the defendants “knowingly concealed the true nature of the PFAS being manufactured and discharged,” the complaint reads. “… To make matters worse, Defendants used unconventional and ineffective procedures that caused the release and discharge of PFAS that they knew posed substantial risk of harm to human health and the environment, all while concealing their actions.”

Stein said DuPont’s actions “were driven by an overarching intent to maximize its profits and miniziae its liabilities at the expense of the people and natural resources of North Carolina.”

In 2015, as the EPA was scrutinizing DuPont’s release of PFAS into the environment in other states, DuPont spun off a separate company, Chemours, apparently to shield itself from any environmental liabilities. Since then, DuPont has merged with Dow and divested itself of Chemours.  “Defendants should not be permitted to hide behind corporate machinations intended to avoid responsibility for the injuries they cause in North Carolina,” the complaint reads.

DuPont began using two types of PFAS — PFOA and PFOS — in the late 1950s. According to the complaint, DuPont knew that the compounds were toxic to animals and humans, and that they accumulated and persisted in the environment. As early as 1961, DuPont warned that the products “should be handled with extreme care” and that contact with the skin “should be strictly avoided,” according to the complaint.

By 1980, DuPont officials confirmed in internal memos that PFOA is “toxic,” that humans accumulate it in their tissues and that “continued exposure is not tolerable.”

Meanwhile, in North Carolina, DuPont discharged PFAS and GenX into the Cape Fear River, a drinking water supply for thousands of people living downstream. Even in meetings with state officials in 2010, the company concealed its  GenX, discharges, and released tens of millions of gallons of contaminated wastewater from the Fayetteville Works plant until late 2017, when state regulators threatened to revoke their permit. Such a revocation would have shut down the plant.

Stein’s  office took Chemours to court on behalf of the North Carolina Department of Environmental Quality (“DEQ”) to stop Chemours from discharging PFAS, including GenX, into the Cape Fear River and emitting those substances into the air. As result of DEQ’s litigation, a Consent Order was issued by the court in 2019, and amended yesterday.

The Order requires Chemours to install air emissions control technology to reduce PFAS emissions by 99.9%; prevent discharge of PFAS to the Cape Fear River; provide clean drinking water to affected private well-users near the Fayetteville Works; assess the extent of existing contamination; and develop a plan to clean up historical contamination of soil and groundwater on an expedited basis. Yesterday’s amendment requires Chemours to take significant additional actions to reduce PFAS entering the Cape Fear River through residual groundwater contamination.

DEQ described its Consent Order as first steps in a broad strategy to address PFAS in the Cape Fear River Basin, and DEQ retained its authority to investigate other contributors to PFAS contamination, including contributors upstream of the facility and to take additional legal action if necessary based on new information. Attorney General Stein’s lawsuit filed today compliments DEQ’s regulatory actions.

Stein’s office is asking the court to require DuPont and Chemours to pay all past and future costs necessary to “investigate, assess, remediate, restore and remedy the harms” of PFAS contamination.

Earlier this year, Chemours proposed a cleanup plan for widespread GenX and PFAS contamination in Bladen and Cumberland counties. DEQ rejected the proposal as being inadequate. The company has yet to resubmit a plan.

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