In the ongoing battle against per- and polyfluoroalkyl substances (PFAS) contamination, U.S. District Judge James Dever of the Eastern District of North Carolina certified two classes of plaintiffs in a lawsuit claiming Chemours Co. and DuPont discharged wastewater containing PFAS and GenX chemicals, also known as “forever chemicals,” into the Cape Fear River, exposing as many as 100,000 residents to the toxic substances. The plaintiff classes in the case, Nix et al. v. The Chemours Co et al., include water utility customers and private well owners.

“The consolidated lawsuit claims that E.I. du Pont de Nemours & Co. and its spinoff business Chemours knew as early as the 1960s that per- and polyfluorinated alkyl compounds posed risks to human health. That only became clearer to them between 1970 and 2017, the years they operated the Fayetteville Works plant in North Carolina and discharged 17 different types of PFAS into the river, the lawsuit says,” according to Cohen Milstein Sellers & Toll PLLC.

PFAS are a group of manufactured chemicals that include chemicals known as perfluorooctanesulfonic acid (PFOS), perfluorooctanoic acid (PFOA), and GenX. There are nearly 5,000 different types of PFAS, some of which have been more widely used and studied than others, according to the U.S. Food & Drug Administration (FDA).
They’ve been produced by a variety of industries since 1940 for use in “water and stain repellant materials, as well as fast-acting firefighting products,” according to the EPA. These chemicals are also found in paint, nonstick Teflon, cleaning products, and food packaging materials. PFAS are known for their ability to repel oil and water.

“The plaintiffs sued in 2017, alleging that the 2,000-acre Fayetteville Works chemical plant has discharged massive amounts of PFAS since 1980, polluting more than 100 miles of river, contaminating their drinking water and causing extensive damage to thousands of miles of municipal and residential piping,” reports Reuters. “The plaintiffs claim that they have developed various diseases associated with PFAS exposure, including cancers and bowel disease, and that counties near the plant have higher rates of some of those diseases than is normal.

“The lawsuit seeks punitive and compensatory damages for various things including the cost to install and maintain water filtration systems, the cost of bottled water some residents have been forced to buy and the cost of replacing water pipes and plumbing fixtures.”

In the hearing for the class certification motion, attorneys for the chemical companies argued that finding individual class members would be too difficult and that each individual’s injuries were too unique to be settled in a class action suit. Those arguments were rejected by Dever.

“Theodore Leopold, an attorney for the class with the law firm Cohen Milstein Sellers & Toll, praised the decision on Thursday, saying it brings the case closer to a trial,” Reuters continues.

PFAS litigation history

Legal battles over PFAS have been waged for more than 20 years, The New York Timesnotes.

“In 1999, Wilbur Tennant, a farmer who lived next to a DuPont plant in West Virginia, sued the company after his cows started acting deranged and dying,” the Times article says. “During the discovery process in the litigation, Mr. Tennant’s lawyers unearthed DuPont documents showing that the company’s Washington Works factory in Parkersburg, W.Va., had been dumping a type of PFAS into the Ohio River and that the chemicals had contaminated drinking water supplies for more than 100,000 people.

“Other documents revealed that DuPont in the 1960s began conducting secret medical research that eventually found links between exposure to PFAS and health problems including cancer and liver damage.”

Fast-forward to 2001, when Dupont announced it would start developing PFOA, which the company said was safe, at Fayetteville works in North Carolina.

“But the company’s own research contradicted those assurances,” the Times adds. “The [EPA] later accused DuPont of failing to disclose that PFOA posed ‘substantial risk of injury to human health or the environment.’ The agency imposed a $10.25 million penalty in 2005.

“By then, DuPont had discovered PFOA in groundwater near the Fayetteville plant.”

The company then began to manufacture GenX at the North Carolina location, which was promoted as a safe substance to state regulators while acknowledging GenX health risks to the EPA.

“Even so, the [EPA] permitted DuPont to manufacture GenX at the Fayetteville plant,” the Times continues. “The caveat was that it was required to capture and destroy 99 percent of the GenX that the factory emitted.”

In 2013, DuPont decided to divest itself of its Performance Chemicals line, and Chemours was formed. It went public in July 2015.

“The transactions that created Chemours and reinvented DuPont laid the groundwork for a blame-shifting exercise that has made it difficult for regulators and others to hold anyone accountable for decades of contamination in North Carolina and elsewhere,” according to the Times. “In a court filing in Ohio, where the state has sued over pollution from the Washington Works factory on the West Virginia border, Chemours claimed that the contamination happened before ‘Chemours even came into existence.’ In a securities filing this summer, Chemours stated that it ‘does not, and has never, used’ PFOA. Yet Chemours continues to manufacture other versions of PFAS, including GenX.”

DuPont said it was a new company after the reformation and had never produced those harmful, pollution-causing substances.

“In 2019, Chemours, deep in debt, sued DuPont,” the Times notes. “Chemours contended that the spinoff was conceived to get DuPont off the hook for its decades of pollution.”

Meanwhile, also in 2019, Chemours settled with North Carolina. In the settlement, according to Reuters, the company agreed to:

• Work with public water companies to reduce PFAS in the Cape Fear River.
• Provide water treatment solutions for drinking water fountains in public buildings.
• Complete other measures to clean up the water contamination.
• Pay fines of $13 million.

“In June [2023], Chemours, DuPont de Nemours Inc [] and Corteva reached a $1.19 billion settlement with most U.S. public water systems over PFAS contamination,” Reuters adds.

PFAS litigation continues to heat up. Some analysts believe it has the potential to culminate in settlements in the billions of dollars. This potential is compared to the asbestos litigation that waged for decades with more than 500,000 claims before Halliburton reached a multi-billion-dollar class action settlement.  Halliburton became responsible for those claims when it bought Dresser Industries in 1998.

Many are frustrated with the legal defense in PFAS litigation that has been characterized as a game of corporate pass the buck.

“To avoid responsibility for what many experts believe is a public health crisis, leading chemical companies like Chemours, DuPont and 3M have deployed a potent mix of tactics,” adds the Times article. “They have used public charm offensives to persuade regulators and lawmakers to back off. They have engineered complex corporate transactions to shield themselves from legal liability. And they have rolled out a conveyor belt of scantly tested substitute chemicals that sometimes turn out to be just as dangerous as their predecessors.”