NORTH CAROLINA — Chemours and DuPont are once again seeking to block public access to internal documents to be used in a lawsuit against them. This comes more than a decade after court documents revealed DuPont’s corporate strategy was to limit and control information related to environmental contamination.
READ MORE: NC State researcher finds high PFAS concentrations in sea foam along local beaches
The suit includes Cape Fear Public Utility Authority, Lower Cape Fear Water & Sewer Authority, Brunswick County and Wrightsville Beach’s ongoing charge to recoup PFAS costs and damages in the Cape Fear region. The plaintiffs seek to recover CFPUA’s $43-million investment in the Sweeney Treatment Plant’s granular activated carbon system and Brunswick County’s $167.3 million Northwest Water Treatment Plant’s repeatedly delayed reverse osmosis system.
As first reported by Coastal Review, Chemours and DuPont filed a Feb. 28 motion to seal thousands of internal communications used by attorneys representing local governments and utilities in the suit. The chemical manufacturers maintain the documents contain competitively sensitive information related to the firms’ operations.
CFPUA plans to file a motion opposing efforts to seal information by the April 14 response deadline.
“CFPUA’s legal team does not believe a good basis exists to seal most if not all of these documents, many of which already are publicly available elsewhere,” CFPUA spokesperson Vaughn Hagerty wrote in a statement to Port City Daily. “The documents Chemours and DuPont want to keep hidden comprise a comprehensive record of these companies’ decades of PFAS contamination of the Cape Fear River and the region. It’s a record our customers and the community deserve to see.”
According to Chemours’ motion, the documents it seeks to seal primarily consist of employees’ internal communications. Subjects of discussion include toxicity data, exposure assessments, medical monitoring programs, crisis management communications, and options for assessing and addressing environmental impacts of its operations.
Other examples include DuPont and Chemours’ email exchanges about the presence of PFAS in the Cape Fear River, a Chemours employee correspondences regarding toxicological studies on PFOA and GenX, Chemours’ investigation of emission controls and environmental impact of its Fayetteville Works facility, and the current state of the plant’s wastewater discharges.
This isn’t the first time the companies have tried to block internal documents in litigation. Chemours and DuPont took similar actions in Dew et. al. v. E.I. Du Pont de Nemours and Company et. al, filed by a group of Fayetteville residents in 2018; more than 2,500 plaintiffs have joined the case since. On Monday, March 31, U.S. District Judge for the Eastern District of North Carolina James Dever III ruled DuPont and Chemours will need to face trespassing claims for PFAS pollution with damages determined at trial.
The class action plaintiffs obtained and cited a broad range of internal documents in their legal briefs. DuPont and Chemours claim many of the documents contained sensitive business information and filed motions to prevent public access, but the court determined unsealed documents to be in the public interest in the case last November.
Port City Daily reached out to Chemours to ask about the lawsuit; a response was not received by press.
DuPont’s Fayetteville Works facility discharged PFOA in the Cape Fear River for decades before replacing it with GenX — which the EPA now believes is potentially even more toxic than its predecessor — before its spinoff Chemours took over the Fayetteville Works facility in 2015.
The Department of Environmental Quality and CFPUA received an EPA and NC State University research report about GenX contamination in the lower Cape Fear in 2016. Former DEQ secretary Donald van der Vaart — who remains influential over toxic chemical regulations as North Carolina’s Chief Administrative Law Judge — did not appear to include the report in transition documents to his successor, according to NC Newsline. Former DEQ air quality inspector Tom McKinney alleges the agency was aware of the Fayetteville plant’s PFAS contamination over a decade earlier in 2004.
The public did not become aware of high PFAS concentrations in the Cape Fear River until Hagerty — a former StarNews reporter before becoming CFPUA’s director of communications — broke the story in 2017. Wilmington-based nonprofit Cape Fear River Watch sued Chemours, culminating in a 2019 consent order putting a number of PFAS-reduction requirements on the multinational corporation.
“The fact that Chemours and DuPont are trying to hide from the public eye 20,000 pages of documents about their companies’ facility and its pollution is almost comically transparent, if it weren’t so dangerous and sinister,” Cape Fear River Watch executive director Dana Sargent said. “This attempt, in and of itself, should be considered profound proof that this information needs to see the light of day, especially considering Chemours is actively seeking to expand PFAS production at the site.”
Former West Virginia Supreme Court of Appeals judge Alan Moats found DuPont engaged in a broader strategy of “limiting and controlling information” to avoid liability, maximize profits, and sidestep cleanup efforts in a 2010 opinion for the class action suit Perrine v. E.I. DuPont. West Virginia residents sued the company for health impacts from toxic pollution originating at its former West Virginia zinc-smelting plant.
“DuPont constructed a team whose primary objective was to ‘minimize the potential for issues/dots to be connected,’” Moats wrote in a 2010 opinion. “Meaning to minimize the dissemination of information and ultimately thwart toxic tort claims.”
DuPont’s strategy of “Connecting the Dots” was explained in a power point slide show during a company meeting focused on management of its various hazardous sites. A West Virginia circuit court found DuPont sought to limit public interest by manipulating and controlling regulatory agencies and omitting vital information to mislead plaintiffs, environmentalist groups, media and government officials.
“There are multiple tactics the chemical industry has learned from the tobacco industry,” Natural Resources Defense Council senior strategic director for health Erik Olson said. “Including trying to keep all the documents that have been discovered in tort litigation under seal and creating fake institutions that are supposedly doing scientific studies but are actually under the control of companies.”
Wilmington-based Clean Cape Fear similarly seeks public access to the documents. The group started the “Stop Toxic Secrets” online petition Friday, requesting the court deny Chemours and DuPont’s motion.
“Chemours has a chronic problem of withholding information,” the petition notes. “In the nearly eight years since we learned about our PFAS tap water contamination crisis, Chemours has only held one public meeting in our area. We believe, at every turn, the defendants make it nearly impossible for the harmed and faultless community to seek basic forms of justice, remedies, and access to information.”
The grassroots group stated communities have been forced to rely on limited PFAS information provided from court filings, including documents cited in investigative journalist Sharon Lerner’s series on DuPont and 3M’s concealed internal studies, finding severe PFAS health hazards decades ago.
Clean Cape Fear noted United Nations experts criticized the Environmental Protection Agency and Department of Environmental Quality last year for failing to provide information and remedies regarding DuPont and Chemours’ PFAS contamination.
“Health and environmental regulators in the United States have fallen short in their duty to protect against business-related human rights abuses,” UN officials wrote, “including providing the public, particularly affected communities in North Carolina, with the type and amount of information necessary to prevent harm and seek reparation. Where legal action has been taken against the two companies, enforcement and remediation measures have been inadequate.”
Tips or comments? Email journalist Peter Castagno at peter@localdailymedia.com.
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