North Carolina PFAS Lawsuit Alleges Fraud
On October 13, 2020, a significant North Carolina PFAS lawsuit was filed by North Carolina Attorney General Josh Stein filed suit against DuPont and Chemours for the discharge of per- and polyfluoroalkyl substances (PFAS) from Fayetteville Works. The complaint alleges PFAS contamination from Fayetteville Works has dispersed over 20 miles through water and air emissions, and threatens human health because exposure to PFAS has been linked with multiple illnesses ranging from kidney and testicular cancer to high cholesterol.
The North Carolina PFAS lawsuit comes one day after Bladen County Superior Court Judge Douglass Sasser approved an Addendum to a Consent Order that requires Chemours to take additional action to reduce PFAS from entering Cape Fear River. The original Consent Order was entered into by the North Carolina Department of Environmental Quality, the Southern Environmental Law Center, Cape Fear River Watch, and Chemours in February 2019. The original Consent Order required Chemours to pay $12 million in civil fines and remove virtually all PFAS from the air and Cape Fear River. With the Addendum and newly filed lawsuit, Chemours can expect to fund more than $12 million in remediation.
The North Carolina PFAS lawsuit brought by Attorney General Stein seeks a judgment requiring Defendants to pay all past and future costs necessary to investigate, assess, remediate, restore, and remedy the harms of PFAS caused in North Carolina as a result of Fayetteville Works operations. This includes damages for injuries to natural resources, property damages, economic damages, and punitive damages, among others. At this time, Attorney General Stein has not put a dollar amount on the amount of damages sought, and instead relies upon further investigation to ascertain the full cost of remediation.
More significantly, the North Carolina PFAS lawsuit also seeks to void “certain transactions and enjoin New DuPont and Corteva from transferring assets that formerly belonged to Old DuPont.” The suit alleges that DuPont engaged in a corporate reorganization intended to shield assets from liability by moving its PFAS-related product lines, including Fayetteville Works, and associated liabilities to Chemours and Chemours FC. This shielded billions of dollars of assets from the state and left Chemours with significant liabilities. Chemours sued DuPont in 2019 alleging the same, however, the case was dismissed due to a binding arbitration clause within the separation agreement. Chemours has appealed this dismissal to the Delaware Supreme Court, however, it will be interesting to see how Chemours responds to the lawsuit brought by Attorney General Stein which echo’s Chemours own allegations against DuPont.
Attorney General Stein indicated that this is the first PFAS suit brought as a result of the PFAS investigation he announced in August 2020. He stated, “it would be premature to talk about any other actions” but “there may be others,” implying we can expect more lawsuits against additional defendants to arise from his investigations in North Carolina. It will be interesting to monitor Attorney Stein’s formal investigation into manufacturers and “other parties responsible” for PFAS contamination in North Carolina to stay apprised of future lawsuits against companies in addition to Chemours and DuPont.