Seeking damages for decades of contamination, North Carolina sues Chemours and DuPont
North Carolina filed a lawsuit in a Fayetteville court Tuesday alleging that DuPont and then Chemours knew for decades the threats to human health posed by GenX and other perfluorinated chemicals that they were discharging into the Cape Fear River.
“My job as attorney general is to protect the people of North Carolina and our natural resources,” N.C. Attorney General Josh Stein told The News & Observer. “I am offended that DuPont has dumped PFAS into our drinking water even as they knew these forever chemicals threatened human health. I am taking them to court so that they pay for this mess they have created.”
DuPont opened the Fayetteville Works plant near the Bladen-Cumberland county line in 1968, spinning part of the facility off to Chemours as part of a 2015 restructuring. That move was widely viewed as an effort to mitigate the original company’s exposure to lawsuits around C8 and other PFAS chemicals, something the North Carolina suit alleges.
“Old DuPont knew that Chemours was undercapitalized and could not satisfy the massive liabilities that it caused Chemours to assume,” the suit states. “Old DuPont also knew that the Chemours Spinoff alone would not isolate its own assets from its PFAS liabilities and that DuPont still faced direct liability for its own conduct.”
Attorneys for North Carolina are requesting relief including all costs “to investigate, locate, assess and address PFAS and other hazardous substances, pollution and contamination” released from the Fayetteville Works plant.
The North Carolina lawsuit moves to reverse some of the protections afforded by DuPont’s split, asking the court to create a constructive trust for the assets that were part of pre-2015 DuPont. Those assets would then be available for any relief the court would deem appropriate.
“Defendants should not be permitted to hide behind corporate machinations intended to avoid responsibility for the injuries they caused in North Carolina,” the lawsuit states.
Stein announced in August that he was launching an investigation into manufacturers and “other parties” that contaminated North Carolina with PFAS, a class of chemicals known as “forever chemicals” because of their long-lasting qualities. At the time, Stein said his investigation would seek to understand the extent of the damage GenX and other PFAS caused to the state’s natural resources while also evaluating contamination in groundwater, soil and surface water elsewhere.
Tuesday’s lawsuit is the first action to come out of that investigation. But Stein said it is “not an end point” and that he is investigating PFAS contamination elsewhere in the state.
The lawsuit was met with approval Tuesday by downstream utilities and statewide environmental groups.
In a written statement, Grady McCallie, the N.C. Conservation Network’s policy director, wrote, “By including DuPont in this suit as well as Chemours, the state of North Carolina has taken an uplifting step toward justice for the many thousands of people exposed to dangerous forever chemicals in their drinking water.”
History of contamination in drinking water
In 2017, after the Wilmington StarNews reported that GenX had been found in the drinking water used by much of the city, a Chemours official told local elected officials that the process that created GenX as a byproduct started in 1980.
Lisa Randall, a Chemours spokeswoman, said in an emailed statement Tuesday that the company is still reviewing the filing. Chemours has, Randall noted, been 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. ... 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,” Randall wrote.
North Carolina’s suit comes a day after the company, Cape Fear River Watch and the N.C. Department of Environmental Quality finalized an updated consent order. The updated order requires Chemours to treat on-site stormwater in a manner that removes 99% of PFAS and to address four groundwater seeps that are discharging contaminated groundwater into the nearby Cape Fear. That will result in a subsurface barrier wall and a groundwater extraction system being put in place by March 2023.
Spinoff companies
The lawsuit lays out a series of maneuvers, starting with DuPont’s move in 2015 to transfer its performance chemical division, including Teflon and GenX, into Chemours and then spin that company off. As part of the spinoff, Chemours assumed all liability for the chemical facilities that were transferred to it, including part of the Fayetteville Works plant.
Then, in December 2015, DuPont and Dow Chemical agreed to merge, becoming subsidiaries of DowDuPont. Assets in the new company were shifted over time, ultimately resulting in three separate product lines: an agricultural line, a specialty products line and a materials science line.
“While, again, the details of these transactions remain hidden from the State and other judgment creditors, it is apparent that the transactions were intended to frustrate and hinder creditors with claims against Old DuPont, including with respect to its PFAS liabilities,” the North Carolina suit states.
In April 2019, Dow, the materials science business, was spun off.
Then, on May 31, the company then known as DowDuPont transferred the agricultural business line to Corteva, spinning the company off the next day. DowDuPont then renamed itself Du Pont de Nemours Inc.
The North Carolina lawsuit alleges that Du Pont de Nemours is responsible for 71% of the PFAS liabilities, while Corteva is responsible for 29% based on the separation agreement with DowDuPont.
In an emailed statement, Daniel Turner, a DuPont spokesman, wrote, “DuPont de Nemours has not heard from Attorney General Stein. That said, such action would be disappointing and without merit. DuPont has never made, used or sold PFOA, GenX or any other perfluorinated compounds in Fayetteville. We look forward to vigorously defending our position in this matter.”
When a reporter responded with publicly available evidence that the company then known as DuPont had, in fact, manufactured PFOA and then GenX at Fayetteville Works, Turner responded again.
“I’m referring to DuPont de Nemours that was formed in June 2019,” he wrote. “You may be referring to E.I. DuPont de Nemours, which is currently part of Corteva Agriscience.”
This reporting is financially supported by Report for America/GroundTruth Project and The North Carolina Local News Lab Fund, a component fund of the North Carolina Community Foundation. The News & Observer maintains full editorial control of the work. To support the future of this reporting, subscribe or donate.
This story was originally published October 13, 2020 at 3:01 PM with the headline "Seeking damages for decades of contamination, North Carolina sues Chemours and DuPont."