The Cape Fear Public Utility Authority is accusing Chemours/DuPont of “willful and wanton” conduct over the company’s secret discharge of GenX and other pollutants into the Cape Fear River. Those chemical compounds wound up in the drinking water of several communities near the Fayetteville Works plant and farther downstream, including Wilmington.
The allegation was one of several in a complaint filed this afternoon in federal court against the company. The utility is asking the court for a jury trial, which given widespread concern about the contamination, Chemours is likely to oppose.
The utility is basing its action on Chemours/DuPont’s alleged “nuisance, negligence, trespass, harm to riparian rights, failure to warn, and negligent manufacture (products liability).” The complaint also alleges Chemours and DuPont “recklessly disregarded the rights and safety of others.”
The filing contains several points regarding what DuPont knew concerning the health effects of GenX and similar compounds like C8, which has been linked to cancer. The company had begun studying the health effects of GenX no later than 1963, according to the court documents.
In addition, as part of their premanufacture notices for GenX under the Toxic Substances Control Act (“TSCA”), DuPont submitted health and safety data to the EPA. Those submissions — redacted to omit alleged confidential business information—show that GenX has been associated with various health effects in laboratory animals consistent with the effects of other perfluoronated compounds: harm to the liver, kidney, pancreas, testicles and immune system.
The precursor to GenX was C8, the subject of a successful class-action lawsuit in West Virginia against the company that was filed in 2001. That same year, in DuPont’s discharge permit renewal application to the NC Department of Environmental Quality, the company failed to disclose any studies or health data on C8. Instead, according to today’s filing, DuPont represented to the state that:
- based on “medical surveillance of its own employees and epidemiological data from others in the industry,” C8 “does not pose a health concern to humans or animals at levels present in the workplace or environment”;
- DuPont had used C8 for forty years “with no observed health effects in workers”;
- the compound “is neither a known developmental toxin nor a known human carcinogen.”
Those contentions later were proved false in the class-action suit. The litigation, representing 80,000 people, revealed that DuPont had discharged C8 into the drinking water supply in Parkersburg, W.V. and in communities along the Ohio River. There were statistically higher incidents of cancer among people who had been exposed to the compound.
Ten years ago, DuPont told state environmental officials that all C8 process wastewater was to be captured and disposed of off-site. But monitoring reports have documented discharges and/or releases of C8 to the Cape Fear River through at least March 2017.
In fact, a series of investigations by the EPA and state environmental officials from 2003–2014 show that there had been several releases of C8 into the Cape Fear. Soil and groundwater throughout the facility was contaminated, some of it possibly via the air.
And from 1979–1990, unlined lagoons were used to store biosludge from wastewater from throughout the facility. That contaminated sludge was then discharged to the Cape Fear River.
Cape Fear utility is asking for both compensatory — money for injury and loss — and punitive damages, which would be added to the judgment if the court finds the company acted with malice or neglect. The complaint was filed in US District Court, Eastern District of North Carolina.