Friday, April 19, 2024

CFPUA files second lawsuit against DuPont, Chemours

CFPUA filed a second lawsuit against DuPont on March 24. (PCD/Shea Carver).

SOUTHEASTERN N.C. — Cape Fear Public Utility Authority has filed a lawsuit against DuPont, the parent company of Chemours, on Friday to hold the companies accountable for its Cape Fear contamination. 

According to the suit, DuPont’s restructurings with Chemours, Dow Chemical Company, and Corteva shields the company from liability resulting from its part in contaminating the Cape Fear River. Its Fayetteville Works plant dumped per- and polyfluorinated substances, otherwise referred to as “PFAS,” into the body of water, which supplies 80% of drinking water to CFPUA’s more than 200,000 customers.

READ MORE: ‘Dog and pony show’: State officials, some local representatives and community rally against Chemours’ latest expansion

First, CFPUA is asking the court to satisfy its damage claims. The company estimates protecting its consumers from PFAS has cost the authority more than $64 million, with future costs and punitive damages exceeding $174 million. 

The public utility authority reports $43 million spent on granular activated carbon filters at its Sweeney Water Treatment Plant last year. The new technology filters 99% of toxic chemicals from that water.  

The public utility authority is also asking the court to prevent further restructuring, transfers or similar actions related to assets formerly owned by Chemours or DuPont.

CFPUA spokesperson Vaughn Hagerty told Port City Daily the decision to file the lawsuit was made following a recent North Carolina Supreme Court ruling that found DuPont’s offloading of assets was an attempt to evade accountability, but they are still liable.

DuPont purchased the Fayetteville Works Facility in 1970; 10 years later, the manufacturing plant began dispersing toxic PFAS, including Gen X, into the Cape Fear River, infecting nearby soil, groundwater, plants, animals and humans. 

PFAS are associated with numerous health detriments to the liver, endocrine system and immune system, along with neurological effects, neonatal toxicity and death and organ tumors. The toxins can persist in soils, groundwater and the air for thousands of years, earning it the name “forever chemicals.” 

The lawsuit claims DuPont knew its chemical dumps were harmful to the environment and failed to notify regulators or the public or change its practices. 

In 2005, 70,000 Ohio and West Virginia exposed to PFAS residents filed a class-action lawsuit against DuPont Ohio and West Virginia residents exposed to PFAS. In the settlement, DuPont agreed to fund millions of dollars in studies and medical monitoring. By 2012, more than 3,5000 individual personal injury and punitive damages claims were filed against DuPont from the two states. 

In 2013, DuPont and Dow Chemical Company began a merger discussion where Chemours would “spin off” from its parent company. The two entities entered into a separation agreement in 2015, with Chemours holding the Performance Chemicals Business and subsequent PFAS liabilities. 

CFPUA claims the transfer was DuPont’s attempt to avoid responsibility for its PFAS contamination. 

The lawsuit also alleges Chemours did not have enough capital to cover the liabilities; the company reported $6.298 million in assets and $6.168 million in liabilities at the time of separation. 

“DuPont or Chemours knew or should have known [its liabilities] would be billions in addition to other environmental liabilities for other contaminants discharged at DuPont and Chemours,” the lawsuit states. 

CFPUA claims Chemours should have been rendered insolvent due to its inability to cover PFAS responsibilities. 

In 2016, a water test conducted on the Cape Fear River revealed high levels of PFAS downstream from Chemours’ Fayetteville facility. Wilmington residents publicly learned about GenX in their tap water the following year from a StarNews story titled “Toxins Taint CFPUA Drinking Water.”

Also in 2017, DuPont merged with Dow Chemical to become DowDuPont. The company created two new subsidiaries: Corteva to hold DuPont and New Dow to hold the original Dow Chemical. The effect of this realignment resulted in many of DuPont’s assets to be transferred out of the company. 

In the lawsuit, CFPUA describes DuPont’s restructurings as an attempt to distance DuPont from the PFAS contamination and its consequences.

CFPUA issued a lawsuit in 2017 to recoup costs and damages related to Chemours’ and DuPont’s PFAS releases. A resolution has yet to be reached. This lawsuit aims to prevent DuPont from skirting responsibility from those damages. 

It filed its second lawsuit to hold DuPont, Chemours and the other companies involved with PFAS liabilities accountable on March 24 in the Court of Chancery in Deleware, DuPont’s home state. 

Claiming it’s been harmed by the “fraudulent” transfers, CFPUA states they should be voided and it should be allowed to recover the property and value of those transfers. CFPUA also requests New DuPont and Corteva be liable for any debts DuPont owes for PFAS violations. 

The public authority wants a court injunction to prevent further disposition of Chemours and DuPont assets. It also wants to see the creation of a constructive trust, which is created to own a property when a court determines the current owner managed it unjustly.

CFPUA filed the lawsuit days after Chemours missed its deadline to construct an underground barrier wall around the Fayetteville Works plant that would prevent GenX and other types of toxic PFAS from entering the Cape Fear River. 

Per a 2019 consent order the North Carolina Department of Environmental Quality and Cape Fear River Watch entered with the company, the wall was supposed to be complete March 15. In October, Chemours said it could not adhere to the deadline under DEQ’s permit restrictions issued the month before. It also attributed the delays to “two significant mechanical breakdowns in trenching equipment,” according to a March 1 letter from the company to DEQ. 

However, DEQ responded Chemours will still comply with the order if the project wraps ahead of May 31. If not, the company could incur more fines. 

When finished, the wall along with a groundwater extraction and treatment system, is designed to capture 99.9% of PFAS contamination. 

Until then, contaminated groundwater from the plant will continue to flow untreated into the Cape Fear River.

Reach journalist Brenna Flanagan at 

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