By Heather S. Kennealy and Edmund Woloszyn

The Chemours Company plant in Fayetteville produces a wide variety of films, fibers, and specialty chemicals at a 2,000-acre facility on the border of Cumberland and Bladen Counties along the banks of the Cape Fear River. E. I. du Pont de Nemours and Company (DuPont) owned and operated the Fayetteville Works Facility from around 1971 until around 2015, when DuPont formed Chemours and transferred ownership to it. DuPont currently leases a portion of the Fayetteville Works Facility from Chemours and has ongoing operations at the Facility.

One of the byproducts of Chemours’ operations at the Fayetteville Works Facility (the “Facility”) is found in its waste stream. Ammonium 2,3,3,3-tetrafluoro-2-(heptafluoropropoxy) propanoate, known by the patented term “GenX,” is included in a group of compounds referred to as per- and polyfluoroalkyl substances (PFAS). GenX was initially invented to replace the use of the fluorinated compound PFOA (Perfluorooctanoic acid or C8). The purpose of GenX, like C8, is to provide a slippery surface in products such as Teflon, fast food wrappers, waterproof clothing, pizza boxes, microwave popcorn bags, carpet, dental floss, cosmetics, and hundreds of other products.

Since 2009, DuPont and Chemours have been producing GenX at their Facility.. In 2016, a team of NC State researchers, led by Dr. Detlef Knappe, working with the EPA laboratory in RTP discovered GenX in the Cape Fear River in North Carolina. Their research indicated that levels of GenX in one sample area in the Cape Fear River were as high as approximately 4500 ng/L. Within the year, GenX was found in the drinking water being supplied to the Brunswick County Public Utilities (BCPU), Cape Fear Public Utility Authority (CFPUA), and Pender County Utilities, which serve a combined population of over 770,000 people. As of May 2018, the GenX plume has not fully been delineated. Groundwater wells near the plant and upgradient are impacted. GenX has been found in rain samples as far away as UNC-Wilmington Campus, roughly 70 miles away from the Facility.

In June 2017, Governor Roy Cooper directed DEQ and the N.C. Department of Health and Human Services (DHHS) to launch an investigation into Chemours’ discharge of GenX. The U.S. Attorney’s Office for the Eastern District of North Carolina issued a subpoena to the N.C. Department of Environmental Quality on July 28, 2017. The subpoena requested that by August 22, 2017 DEQ provide to a grand jury in Wilmington records and documents, including permits, environmental compliance information, reports, emails, research and notes, related to the Chemours Company’s Fayetteville Works facility, GenX and other fluorinated chemicals. Governor Cooper also directed the State Bureau of Investigation’s Diversion and Environmental Crimes Unit to assess whether a criminal investigation is warranted in this case. To date, no criminal charges have been made against Chemours or DuPont. See generally https://deq.nc.gov/news/hot-topics/genx-investigation.

DHHS developed a preliminary assessment on GenX consumption via drinking water based on the European Chemical Agency (ECHA) study titled Evaluation of substance used in the GenX technology by Chemours, Dordrecht.

However, current treatment processes in water treatment plants do not remove the chemical out of the water. There is no direct regulation or permit standard for GenX and little is known about what level is truly “safe” for human and animal consumption. What is known is that GenX is in the same chemical family as DuPont’s previous chemical C8. The safe level of C8 also is unknown, but the EPA has put the figure at 0.07 parts per billion or 70 parts per trillion. Other scientists believe concentrations as low as 0.0003 parts per billion/ 0.3 parts per trillion can be life threatening. Yet, GenX has been found in the CFPUA drinking water at an average of 0.631 parts per billion/631 parts per trillion, which is at least nine times the advisory level for C8, and as much as 2,000 times the recommended level.

More information about GenX, how it is generated, and the studies that have been conducted on the impacts it causes can be found in Edmund Woloszyn’s article GenX: Health Goals and Ongoing Investigations, published in the February 2018 edition of the Environment, Energy & Natural Resources Section Newsletter.

Enforcement and Civil Litigation

State officials on September 5, 2017 formally ordered Chemours to stop releasing all fluorinated compounds into the Cape Fear River and to comply with the state’s other demands or face legal action and suspension of its discharge permit. This followed three months of water testing and information gathering from the EPA and institutional researchers. Two days later, the DEQ filed an injunction action in Bladen County Superior Court. The state claims DuPont told regulators in 2010 they had a closed loop system in place to ensure that no trace of GenX would ever make it to the river. The state also claims that neither DuPont nor Chemours ever informed regulators that they were, in fact, dumping GenX into the river prior to 2017. See generally https://deq.nc.gov/news/hot-topics/genx-investigation/investigations-and-enforcement-actions.

In November 2017, DEQ took steps to partially revoke Chemours’ wastewater permit. “It is unacceptable that Chemours has failed to disclose information required by law, information we need in order to protect the public,” said Michael S. Regan, secretary of the N.C. Department of Environmental Quality. “We’re taking action to suspend Chemours’ wastewater permit and moving to permanently revoke it because the company has repeatedly failed to follow the law.”

More recently, on February 12, 2018, the State issued another Notice of Violation (NOV)  citing Chemours’ failure to take action following a December 15, 2017 letter from DEQ that directed the company to terminate or control sources of contamination and mitigate onsite hazards. The NOV requires Chemours to take immediate measures to mitigate any hazards resulting from exposure to GenX and other pollutants. This NOV comes in the wake of four spill incidents in recent weeks at the Bladen County facility. Clean-up efforts began immediately following each spill and no contaminated wastewater is believed to have reached the Cape Fear River. State officials do not believe the spills caused subsequent GenX spikes in water samples taken from the facility’s discharge pipe at the river. However, DEQ notes there is a correlation between rain events and elevated levels of the chemical in water samples taken at that location.

In addition to these enforcement actions, various parties have begun filing lawsuits in response to the recent findings. On April 9, 2018, N.C. Department of Justice and DEQ filed its first Amended Complaint and Motion for Preliminary Injunctive Relieve in its action against DuPont and Chemours Company. In this pleading the state methodically lays out all the testing data against DuPont and Chemours gathered over the past year. It represents the culmination of a months-long investigation by the DEQ’s Division of Water Resources (DWR), Division of Waste Management (DWM), and Division of Air Quality (DAQ), into Chemours’ unlawful release of chemical products, intermediaries, and byproducts from its manufacturing processes into the environment. The Amended Complaint states, “Chemours has contaminated and continues to contaminate North Carolina’s air, surface water, and groundwater through the release of ‘GenX’ or ‘C3 Dimer Acid,’ which the U.S. Environmental Protection Agency (‘EPA’) and the North Carolina Department of Health and Human Services (‘DHHS’) have recognized may present an unreasonable risk of injury to human health and the environment.” See Amended Complaint and Motion for Preliminary Injunctive Relief, Bladen County Superior Court, April 2018, available at https://files.nc.gov/ncdeq/GenX/2018-04-09%20FINAL%20Amended%20Chemours%206C%20Complaint.pdf.

Two public utilities and three class action groups have also filed suit against DuPont and Chemours over the GenX contamination. Brunswick County and Cape Fear Public Utility Authority (CFPUA) sued the companies in the U.S. District Court in the Eastern District of North Carolina, Southern Division. See Cape Fear Public Utility Authority, et al. v. The Chemours Company FC, LLC, et al., Case No. 7:17-CV-195D and Brunswick Country, et al. v. DowDuPont, Inc. et al., Case No. 7:17-CV-209-D.

Similarly, three (now consolidated) plaintiff class actions were filed against Chemours and DuPont in the same court. The original toxic tort class action is styled Victoria Carey, et al. v. E.I. DuPont de Nemours and Company, et al., Case No. 7:17-CV-201-D, and the others are Brent Nix, et al. v. The Chemours Company FC, LLC, et al., Case No. 7:17-CV-189-D and Roger Morton, et al. v. The Chemours Company, et al., Case No. 7:17-CV-197-D. The three plaintiff class action suits were filed on behalf of thousands of people who claim they are ill or could get ill, because they drank water from the Cape Fear River and from wells surrounding the plant.

In January 2018, Judge James C. Dever III ordered plaintiffs to file two master consolidated complaints. One master consolidated complaint concerns the Nix, Morton, and Carey plaintiffs (the class action plaintiffs (Victoria Carey, et al. v. EI DuPont De Nemours & Company, et al., Case Nos. E.D.N.C. (Southern Div.) 7:17-CV-00189, 7:17-CV-00179; 7:17-cv-00201)). The Victoria Carey, et al. v. EI DuPont De Nemours & Company, et al., consolidated class action lawsuit seeks monetary damages and injunctive relief for physical injury, property damage and reduced property values, and the cost of filtering contaminated water and air sustained by residents in New Hanover, Bladen, Brunswick, Cumberland and Pender counties who have been or are currently exposed to the contaminants.

The other master consolidated complaint will cover the Cape Fear Public Utility Authority and Brunswick County plaintiffs (styled Master Complaint of Public Water Suppliers). The 37-page consolidated Master Complaint from the ‘public water supplier’ plaintiffs details extensive findings of GenX and PFOS in the Cape Fear River. This consolidated complaint alleges that as early as 2014 and 2015, water testing established the presence of C8 and PFOS compounds at the Northwest Treatment Plant operated by Brunswick County. In June 2017, “Public Water Supplier” Plaintiffs state, raw water samples showed levels ranging from 629 ppt to 830 ppt at the King’s Bluff intake and 605 to 910 ppt at the Northwest Treatment Plant. Master Complaint at 27, 7:17-cv-00209-D (Doc. 35).   The Complaint also cites recent testing data, that they allege, demonstrates an association between GenX and various health effects in laboratory animals that are consistent with the effects of the PFASs, including liver, kidney, pancreas, testicles, and immune system impacts. Id. The consolidated suit charges that DuPont/Chemours Defendants dumped potentially toxic fluorosurfactants from the plant starting in the 1980s and claims DuPont knew that some of those fluorosurfactants, such as perfluorooctanoic acid (PFOA), had toxic effects on laboratory animals as far back as the 1960s.

In February 2018, a sixth lawsuit was filed in the Eastern District Federal Court on behalf of 70 residents who live near the Chemours/DuPont plant. It alleges that Chemours and its predecessor, DuPont, secretly released GenX and similar compounds into the groundwater, lakes, air, soil and Cape Fear River. Most of the plaintiffs reside near the Marsh Wood Lake area, very close to the Chemours plant in Fayetteville. This case, James S. Dew, et al. v. EI DuPont De Nemours & Company, et al., Case No. 5:18-CV-0073-D, is separate from the class action litigation described above but Chief Judge Dever III is also the presiding judge. As they have in all of the other lawsuits, Defendants filed a Motion to Dismiss this Complaint in April 2018.

DuPont acknowledges that the lawsuits and ongoing federal and state investigations “could result in penalties or sanctions,” according to documents it has filed with the U.S. Securities & Exchange Commission (SEC). Chemours says in its SEC filings that it believes discharges from the Fayetteville site “have not impacted the safety of drinking water in North Carolina.” On March 2, 2018, Chemours filed its first 12(b)(6) Motion to Dismiss the Carey Class Action Consolidated Complaint and the CFPUA & Brunswick County Consolidated Complaint. In part, Chemours’ argument is the health “goal” of 140 ppt established by the SAB, “is not an enforceable standard, and its exceedances does not establish injury.” In the first paragraph of its Motion to Dismiss CFPUA & Brunswick County Consolidated Complaint counsel for DuPont/Chemours writes “nowhere in their Master Complaint do Plaintiffs allege that they are required by law to remove or treat the chemicals at issue in this case.”

Carey Plaintiffs’ class counsel and counsel for CFPUA and Brunswick County responded on April 13th with their own separate arguments on why the cases should each move forward. At the heart of this case is whether or not a non-regulated chemical can be litigated or proven, in the court of law, that there is a breach of duty and subsequent injury. DuPont & Chemours filed its reply brief on April 27, 2018. Plaintiffs’ counsel in the Dew groundwater case requested extra time to file their response brief to the 12(b)(6) Motion. On May 1, 2018 this request was granted. Plaintiffs now have up to and including May 30, 2018 to file their response. Although the court has not calendared oral arguments yet for these motions, we may see oral arguments sometime this summer.

For the Court battle(s), this phase has just begun.

Edmund Woloszyn has over 28 years of experience in environmental consulting and is currently a Principal Scientist at S&ME, Inc., an employee-owned, ENR Top 100 engineering firm headquartered in Raleigh, NC. He received his undergraduate in Marine Biology at the College of Charleston and his Master’s degree from North Carolina State University’s graduate school of Marine, Earth and Atmospheric Sciences.

Heather S. Kennealy is an attorney with 15 years of environmental law experience working for both private law firms and the federal government. Mrs. Kennealy is serving as Of Counsel, and working on GENX matters, with the Law Offices of F. Bryan Brice, Jr. in Raleigh. Mrs. Kennealy also maintains her own shop (Kennealy Law Practice) in Hillsborough. She received her undergraduate degree in Public Health and Environmental Science from UNC-CH and her law degree from Vermont Law School. Mrs. Kennealy holds a Masters in Environmental Law and is licensed to practice law in North Carolina and Massachusetts.