February 01, 2018

New research suggests Cape Fear pollutants are more toxic than originally thought and may be airborne

WILMINGTON, N.C. –DuPont (NYSE: DD) and its former wholly-owned subsidiary, the Chemours Company (NYSE: CC), disregarded internal test results before illegally dumping hazardous chemicals into North Carolina’s Cape Fear River and then mislead the  government regulators about its conduct, according to a Consolidated Complaint filed late Wednesday in a closely-watched class-action lawsuit against the chemical giant. The new allegations come just days after independent researchers suggested that GenX, the chemical dumped into the water for decades, is even more toxic than previously known and may also be airborne. Residents, many suffering from cancer and other life-threatening illnesses, are now demanding further independent testing in the wake of these new findings.

The Complaint highlights the discovery of new Fayetteville-region groundwater wells showing significant traces of GenX. As at least one of these wells is situated uphill from the Fayetteville Works industrial facility, the plaintiffs want to determine whether the chemical can be dispersed through the air, as new research suggests is possible.

“It seems that every day we learn more about the danger these substances pose and the extent of Dupont’s and Chemours’ callous disregard for the lives of thousands of North Carolinians,” said Theodore J. Leopold, Co-Chair of the Consumer Protection Practice and Chair of the Catastrophic Injury & Defective Products Practice at Cohen Milstein Sellers & Toll and lead plaintiffs’ attorney in the case. “The scope of the pollution and horrible effects of these chemicals are much more significant than originally thought. We look forward to getting justice for the families who have been harmed by these companies’ irresponsible acts.”

Officials from Chemours seemed to indicate the severity of the GenX pollution last month, announcing their intentions to provide filters to people in the Fayetteville region who get their water from ground wells. Last Thursday, the Environmental Protection Agency announced that it has asked Chemours to test the drinking water by its production facility in West Virginia for GenX, citing GenX contamination near the Fayetteville plant.

"For decades, DuPont and Chemours have failed their basic duty to safely control and dispose of the toxic chemicals used in the Fayetteville Works plant," said Steve Morrissey, Partner at Susman Godfrey and Interim Co-Lead Counsel for the plaintiffs. "Through this lawsuit, we will make these companies take responsibility for what they have put in the local air and water, for ensuring that the air and water are safe going forward, and for addressing the serious harms their actions have caused."

The Consolidated Complaint details extensive health problems of many Cape Fear residents who have now joined the case, including diagnoses of colon and stomach cancer, as well as ulcers and cysts on an individual’s liver and intestines, which led to surgeries, hospitalizations and lost income.

Citing a new study by independent researchers at Stockholm University, which suggests that GenX is even more toxic than PFOA, the amended lawsuit filed today alleges that DuPont overlooked the results of its own testing on GenX and illegally discharged the chemical into North Carolina’s Cape Fear River from its Fayetteville Works plant.

On December 15, 2017, plaintiffs’ counsel filed a motion for expedited discovery to take on-site wastewater samples to further determine the extent of GenX water contamination and potential ill health effects in the Fayetteville, N.C. area. Earlier that month, a sampling by North Carolina’s Department of Environmental Quality showed GenX levels in the water by the Fayetteville Works plant had spiked to levels more than 16 times higher than the state’s standards.

DuPont introduced GenX in 2009 as a supposedly safer alternative to PFOA, a chemical it had used for decades to manufacture Teflon and other products in places like North Carolina and West Virginia. The chemical raised health concerns after it seeped into drinking water sources and locals developed cancers, hormonal dysfunction and autoimmune diseases.

Case Background

Since 1980, DuPont and Chemours have been dumping toxic waste from its 2,000-acre Fayetteville Works plant, including GenX and Nafion byproducts, into the Cape Fear River which supplies drinking water to five North Carolina counties with a combined population of over 770,000. According to the U.S. Centers for Disease Control and Prevention, the affected counties -- New Hanover, Bladen, Brunswick, Cumberland and Pender -- have among the highest concentration of liver disease in the United States. The North Carolina Department of Health and Human Services says the rates of liver, pancreatic, testicular and kidney cancers are higher in certain of the five counties than the state averages, and DuPont’s own testing has shown that these chemicals can cause liver, pancreatic, testicular and kidney cancer, liver disease, fetal and birth defects.

Despite conducting multiple internal tests that confirmed the toxicity of GenX, DuPont dismissed its own findings, continued the dumping and never disclosed the existence of the toxic waste or the related test results to residents or local utility companies. The class action lawsuit asserts that DuPont lied to government regulators, claiming it was disposing of GenX safely when in fact it was not. As detailed in the lawsuit, the company even represented to the U.S. Environmental Protection Agency and state regulators that GenX was sent to an off-site incinerator, a claim later proven to be false.

Chemours admitted publicly to discharging GenX into the North Carolina public water supply in June 2017, after a team of researchers from the North Carolina State University detected the chemical downriver from the Fayetteville Works plant. In September 2017, the North Carolina Division of Water Resources sought to suspend Chemours’ National Pollutant Discharge Elimination System (NPDES) permit, citing the company’s years-long misrepresentation and failure to disclose the dumping of GenX and Nafion byproducts.

The toxic dumping has not only polluted more than 100 miles of the river but also caused extensive damage to thousands of miles of municipal and residential piping. Chemicals like GenX and Nafion are nearly impossible to eradicate from the water supply once contamination has occurred. They are known to bond with pipes, microbes, plants, animals and sediments and water authorities are not able to filter out the chemicals. To mitigate risks, extensive water filtration is needed at the municipal and residential levels, with removal and replacement of plumbing and appliances inside the home considered the safest and most effective option, potentially costing thousands of dollars for each home. 

The 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 plaintiffs are represented by partners Theodore J. Leopold and S. Douglas Bunch of Cohen Milstein Sellers & Toll PLLC and Steve Morrissey and Jordan Connors of Susman Godfrey LLP.

About Cohen Milstein

Cohen Milstein Sellers & Toll PLLC is nationally ranked and recognized as one of the premier law firms in the country, handling major, complex plaintiff-side litigation. With more than 90 attorneys, Cohen Milstein has offices in Washington, D.C., Chicago, Ill., New York, N.Y., Palm Beach Gardens, Fla., Philadelphia, Pa., and Raleigh, N.C.  For additional information, visit www.cohenmilstein.com or call (561) 515-1400.

About Susman Godfrey

For more than forty years, Susman Godfrey LLP has focused its nationally recognized practice on high-stakes commercial litigation. Susman Godfrey is one of the nation's leading litigation boutique law firms with offices in Houston, Seattle, Los Angeles and New York. For more information, visit www.susmangodfrey.com or call (206) 373-7380.