Chemours and DuPont are named defendants in more than a thousand legal cases in North Carolina, but North Carolina is just the tip of the iceberg.
Editor’s Note: Four years ago, a StarNews investigation revealed toxic levels of GenX in Wilmington’s drinking water. This is the third in a series of stories that will take a deep dive into what’s happened since then. In the coming weeks, we will explore what we know about health effects, chemical dumping regulations and the status of lawsuits, among other topics.
For nearly 40 years, DuPont and Chemours polluted the Cape Fear River with toxic chemicals. More than 300,000 North Carolinians drank that contaminated water and now face the risk of developing various diseases, including cancer.
Chemours paid a $12 million fine to North Carolina as a result of the water crisis and is required to clean up its Fayetteville Works plant, but most of the 300,000 victims have yet to get anything from either company.
Many have decided to sue to get justice.
In North Carolina, Chemours and DuPont must take responsibility, said Ted Leopold, an attorney involved in a class-action lawsuit filed on behalf of the thousands of North Carolinians who’ve been affected by the disaster.
The class-action lawsuit accuses Chemours and DuPont of “recklessly” dumping toxic, “cancer-causing chemicals” into the Cape Fear River, according to the lawsuit. The lawsuit seeks damages in excess of $5 million from the multi-billion-dollar corporations for their negligence, private and public property nuisance, trespass and unjust enrichment.
Chemours and DuPont knew what they were doing, Leopold said. They consciously knew they were contaminating the environment and dumping toxic chemicals into people’s drinking water, he said.
“Absent litigation and getting the full measure of justice, they will continue to do these types of activities unless they know that there are guardrails that force companies such as DuPont to stay in the right lane,” Leopold said. “A company like DuPont just through their history of litigation, West Virginia being example, evidently, doesn’t get it.”
Chemours and DuPont are named defendants in more than a thousand legal cases in North Carolina, according to court records, corporate filings and various attorneys. But North Carolina is just the tip of the iceberg. Lawsuits in at least a dozen states accuse Chemours and DuPont of negligence, deception and fraud in relation to numerous water disasters beyond the Cape Fear.
Since 2017, at least seven states have filed lawsuits against DuPont, according to the company’s 2020 Form 10-K filed with the U.S. Securities and Exchange Commission. DuPont is facing at least one class-action lawsuit in New York, several lawsuits by private residents in New Jersey and New York and litigation by numerous public water utilities in California, West Virginia, New York, New Jersey and elsewhere.
In addition to the lawsuits its fighting alongside DuPont, Chemours is facing an additional lawsuit by the state of Mississippi, according to its 2020 annual report. Chemours is also a named defendant in at least three class-action lawsuits in Delaware, Ohio and Georgia, roughly 27 lawsuits from public water suppliers in several states, as well as at least two lawsuits by local governments in West Virginia and Georgia.
Chemours declined to comment, stating through a spokesperson that the company doesn’t provide comments on specific active litigation.
In an emailed statement, DuPont said it will “vigorously defend its position” that “DuPont de Nemours has never made, used or sold PFOA, PFOS, GenX or any other perfluorinated compounds in North Carolina.”
DuPont, or DuPont de Nemours, is the current product of several financial transactions in the past few years. In 2017, E.I. duPont de Nemours and Company, which operated the Fayetteville Works plant until 2015, merged with Dow to create DowDuPont. Since then, the conglomerate has separated into three smaller companies including DuPont de Nemours.
The state of North Carolina and others believe these transactions were fraudulent, and orchestrated by DuPont to help shield billions of dollars in assets from affected parties.
A mountain of lawsuits
Approximately 1,000 property owners and entities in North Carolina have filed legal cases against Chemours and DuPont, according to Baron & Budd, a Texas law firm involved in the litigation. The lawsuits have all been consolidated into one mass action, and the litigation is currently in the discovery phase.
Chemours and DuPont are fighting back against the class-action lawsuit “as hard as they can,” Leopold said. The companies are objecting to medical monitoring and other items that could help those who’ve suffered health-related issues as a result of the contamination.
“Whatever they’re doing is not voluntary,” Leopold said. “They’re doing it pursuant to the consent order that they were entered into and paid a multi-million dollar fine to the state of North Carolina.”
As required by the 2019 consent order, the chemical manufacturer is supposed to test wells in the area around its Fayetteville Works plant, Leopold said. For those who have contaminated wells, Chemours must provide clean drinking water either through bottled water or installing filters in the person’s home.
“But that’s a handful of people compared to the hundreds of thousands that are obtaining unfiltered high concentrations of PFAS chemicals in their drinking water,” Leopold said.
Cape Fear Public Utility Authority, Brunswick County, Lower Cape Fear Water and Sewer and the town of Wrightsville Beach are also suing DuPont and Chemours for the “extensive” damage done to their infrastructures, according to their lawsuit filed in May 2019.
CFPUA is currently spending $46 million to renovate its Sweeney Water Treatment Plant to prevent the PFAS chemicals from reaching people’s taps in New Hanover County. In Brunswick County, officials have budgeted $167 million for a project to upgrade and expand its Northwest Water Treatment Plant because of the water crisis.
CFPUA has spent $30 million to date to address Chemours’ and DuPont’s pollution, according to a statement from CFPUA.
“So far, neither company has paid or offered to pay any of the costs our community has borne and will bear to address problems that no one disputes were caused by Chemours and DuPont,” according to the statement. “Instead, Chemours and DuPont have left our community to fend for ourselves and forced CFPUA to ask a court to make them do what is right.”
Currently the lawsuit is in the discovery phase, meaning lawyers for both sides are reviewing “millions of documents, emails and other records” for any relevant information, according to the statement.
Decades of deception, cover-ups
Across the country, Chemours and DuPont are facing allegations of negligence, fraudulence and other claims stemming from their unlawful discharge of PFAS chemicals, also known as per- and polyfluoroalkyl substances.
The main allegations of negligence stem from the company’s decades-long knowledge that PFAS were toxic and dangerous to humans. Despite knowing that, DuPont actively hid this information and engaged in various business transactions to prevent states from seeking damages, according to various lawsuits filed by states across the country.
As early as 1961, researchers at DuPont concluded PFOA, a type of PFAS that leaked into the Cape Fear River, was toxic and should be “handled with extreme care,” according to a 2018 lawsuit between the state of Ohio and Chemours and DuPont. Ohio sued Chemours and DuPont for negligence, public nuisance, trespass and punitive damages in relation to the company’s contamination of the Ohio River from its Washington Works chemical plant in Parkersburg, West Virginia.
The state of Ohio alleges DuPont became so concerned about its toxic chemical leaking out into public drinking water that it began covertly collecting water samples in 1984, according to the lawsuit. Testing of those samples revealed that PFOA, also known as C8, was in public drinking water, yet company officials didn’t warn the public.
DuPont employees held a meeting at the company’s headquarters in Wilmington, Delaware, that same year to discuss the PFOA issues, according to a 2019 lawsuit filed by the state of New Hampshire against Chemours, DuPont and others. New Hampshire sued the chemical manufacturers for negligence, fraud and a host of other allegations.
“During the 1984 meeting, DuPont employees in attendance spoke of the PFOA issue as ‘one of corporate image, and corporate liability,’” according to the lawsuit.
Despite the concern, DuPont decided against using available technology in 1984 to contain PFOA releases from its chemical plants, according to the lawsuit.
DuPont allegedly made the same decision with the Fayetteville Works site outside Fayetteville, according to a 2019 lawsuit Chemours filed against DuPont. Chemours’ lawsuit accused DuPont of purposefully and unfairly offloading the company’s environmental liability onto Chemours and then indemnifying itself against any claims.
Chemours alleged DuPont had several options ranging from $20 million to $60 million that would reduce or possibly end PFAS discharges into the Cape Fear River, according to the lawsuit. Instead, DuPont chose to spend $2.3 million to eliminate one stream of pollution before it ultimately decided to terminate the rest of the project in late 2013.
“Why bother spending money to fix the problem, DuPont apparently reasoned, when it could be conveniently passed on to Chemours,” Chemours alleged of DuPont in the lawsuit.
DuPont hid billions from victims
North Carolina’s lawsuit against Chemours and DuPont claims the companies purposefully misled state and federal regulators for years to avoid legal trouble. The state also alleges DuPont tried to shield itself from paying out billions of dollars for its chemical contamination across the country by restructuring and spinning off certain product lines.
DuPont’s fraudulent transactions were motivated by greed and profit maximization, said Josh Stein, North Carolina’s attorney general. The state wants the court system to unwind those transactions.
“DuPont over the last five years engaged in a series of corporate transactions designed to shield billions of dollars of their assets from the state of North Carolina, and from others, because they don’t want to pay for the damage they’ve done,” Stein said.
In its lawsuit against DuPont, Chemours didn’t accuse DuPont of fraud, but alleged DuPont purposefully spun off Chemours as a way to jettison its environmental liabilities and fund a massive stock buyback.
The idea of shifting the environmental liability began in 2013 when DuPont’s management came up with an initiative named “Project Beta,” according to Chemours’ lawsuit.
Project Beta took on greater importance later in 2013 after an “activist hedge fund” called Trian Fund Management took a stake in DuPont and began advocating for the conglomerate to be dismantled, according to Chemours’ lawsuit.
“Hoping to ward off Trian, DuPont planned a $5 billion stock buyback,” according to Chemours’ lawsuit. “To fund the repurchase, DuPont decided to move forward quickly with the Project Beta/performance chemical spinoff.”
The lawsuit between Chemours and DuPont was eventually dismissed in Delaware state court, and earlier this year the two companies entered into a cost-sharing agreement in which Chemours and DuPont would split the future costs of any PFAS liability, according to DuPont’s 2020 Form 10-K filing. In exchange, Chemours agreed to release the claims it made in its lawsuit against DuPont.
DuPont believes its transaction with Chemours was lawful, despite allegations stating otherwise, according to its statement. The company added, “DuPont will continue to defend itself when we believe we have been wrongfully named in PFAS cases.”
Fighting to take responsibility
The state of North Carolina is currently in a “motions battle” with Chemours and DuPont, Stein said. Both companies are trying to get the case dismissed while the state has argued it should proceed. A judge has yet to make a ruling.
Once the case moves past the preliminary motions, the state will begin an “extensive and aggressive discovery” phase to uncover evidence to back up its claims, Stein said.
“We all want instant gratification, but deep-seated challenging issues that involve substantial resources take time,” Stein said.
Ryke Longest expects a lot more litigation to be filed against chemical companies who manufactured PFAS throughout the proceeding decades. Longest, a professor and director of clinical programs at Duke School of Law, also expects chemical manufacturers will likely have to pay for much of the damage they caused.
“I don’t think there’s a risk to participating,” Longest said. “I mean the only risk I think in the end would be the last person who’s unaware that they have been harmed. At that point, if you’ve run out of money in the settlement, or if you’ve run out of the ability to pay, that’s the issue.”
He added, “I think that’s why we’re seeing this big rush of lawsuits because people want to make sure that their claims get a chance to be heard.” Do you think it makes sense to keep Ryke Longest in this top section or move him all the way down to the bottom? In terms of flow I feel like he doesn’t really fit.
The motions to dismiss is just one of many different delay tactics corporate entities like to employ in large civil lawsuits, Longest said.
One tactic that’s also very common for corporations to use to slow lawsuits down is to argue the plaintiffs haven’t filed the litigation in the current court, Longest said. There can be delays if lawyers start arguing over whether the litigation is in the correct venue.
Lawyers can also slow cases down by deposing every plaintiff in a lawsuit, especially if there are many, Longest said. Deposing every plaintiff adds a lot of time because defense attorneys can require plaintiffs to bring documentation proving their claim.
“Any given side that has enough resources can use the rules of the game to greatly increase the cost to the other side,” Longest said.
At some point, Chemours and DuPont have to take responsibility for what they did, Leopold said. That either means they need to make their case before a jury, agree to a settlement or find another way to help those impacted in North Carolina.
Companies like DuPont don’t seem to get that their actions have affected people’s lives, Leopold said. Because of that communities have to keep forcing them into court until they understand.
“It’s very important that corporate governance and ethics are followed,” Leopold said. “Citizens and communities have to rely upon corporate conduct being right, ethical and corporations being responsible. Oftentimes unfortunately we have seen that companies don’t act the right way.”