As early as 1961, scientists with the DuPont chemical company issued internal warnings about the toxicity of a certain type of “forever chemical” known as PFOA, saying the compound caused adverse liver reactions in rats and dogs.
DuPont’s toxicology section chief warned that such products should be “handled with extreme care” and that contact with the skin should be “strictly avoided.”
DuPont also knew back then that tens of thousands of people had been exposed to PFOA through public or private drinking water supplies, yet it never warned anyone until decades later.
That information is contained in a 49-page lawsuit that Cumberland County filed last week against the DuPont, Chemours and Corteva chemical companies, which all occupy space at the Fayetteville Works plant in neighboring Bladen County.
The lawsuit alleges that the “defendants have used the environment surrounding the Fayetteville Works facility as a dumping ground for hundreds of chemicals while assuring the E.P.A. and state agencies that they were doing no such thing.”
Like much of the information contained in the lawsuit, the internal warning DuPont scientists made in 1961 was reported long ago. But it bears repeating because it is just one of the many examples alleged in the lawsuit that show the great lengths DuPont took to conceal the environmental damage and potential human health problems it caused in Cumberland County.
“For nearly forty years, Defendants secretly pumped millions of pounds of per- and polyfluoroalkyl substances (PFAS) into the air above Fayetteville Works,” the lawsuit says. “Winds from the south carried the bulk of these PFAS compounds into Cumberland County, where they have fallen to the ground – landing on plants and trees along the way – and migrated to groundwater.
“As a result, groundwater in Cumberland County is contaminated by Defendants’ toxic chemicals, leaving devastated thousands of Cumberland County residents who use groundwater wells as their sole water source.”
More than 6,200 wells have been found to be contaminated with PFAS in Cumberland, Sampson, Bladen and Robeson counties. The vast majority of those wells are in Cumberland County, including some recently discovered 25 miles from the plant between the towns of Wade and Falcon. Testing for well contamination continues. No one yet knows just how far the pollution has spread.
“Cumberland County brings this suit to provide its residents with drinking water free of Defendants’ chemicals and to compensate the County for harm it has incurred and will incur as a result of Defendants’ actions,’’ the lawsuit says.
The lawsuit says the county seeks more than $25,000 in costs, damages and other relief, which is standard nomenclature. In reality, the county alleges that the chemical companies caused millions of dollars in damages.
A timeline of deception
The lawsuit provides a timeline that shows the extent DuPont went to conceal the health dangers of PFOA, which originally began to be produced in the 1950s to make nonstick pans.
According to the lawsuit, in 1978 the 3M Corp. passed along information to DuPont about elevated and persistent organic fluorine levels in workers exposed to PFOA.
DuPont then initiated a plan to review and monitor the health conditions of its own workers. It found in 1979 that workers who had been exposed had a “significantly higher incidence of health issues than did unexposed workers,” the lawsuit says.
“DuPont did not report this data or the results of its worker health analysis to any government agency or community at that time,” according to the lawsuit.
The following year, DuPont internally confirmed that PFOA “is toxic,” that humans accumulate the substance in their tissue and that “continued exposure is not tolerable,” the lawsuit says.
By 1981, DuPont also knew that PFOA could be passed on from mother to unborn child. That year, a blood sampling study of eight pregnant or recently pregnant female workers found that two children were born with birth defects. At least one of those children had PFOA in the umbilical cord.
According to the lawsuit, DuPont was also aware back then that PFAS – the collective name for more than 5,000 types of the substances – could contaminate the surrounding environment and cause human health problems.
“By 1980-1981 at the latest, DuPont knew that PFAS compounds could be emitted into the air from its facilities and that those air emissions could travel beyond facility boundaries,” the lawsuit says.
Furthermore, during a meeting in 1984, DuPont employees discussed available technologies that were capable of controlling and reducing PFOA releases from DuPont’s manufacturing facilities, as well as potential replacement materials, according to the lawsuit.
“DuPont chose not to use either available technologies or replacement materials, despite knowing PFOA’s toxicity,” the lawsuit says.
Exposure to PFOA in humans and animals is linked to a number of diseases, including kidney and testicular cancer, thyroid disease, ulcerative colitis, high cholesterol, pregnancy-induced hypertension and damage to the immune system.
Of the more than 5,000 types of PFAS, none has been studied more than PFOA, which is no longer produced in the United States because of its toxicity. But studies on animals show that at least some of the more than 50 types of PFAS Chemours has produced are associated with cancer and other diseases.
3M stops making PFOA
For decades, 3M had been the only company in the country to produce PFOA. It stopped doing so in 2002 because of health and environmental concerns. But that didn’t stop DuPont, which took over production at the Fayetteville Works plant for its profitable Teflon products.
DuPont continued to make PFOA at the plant until 2013, four years after it began to switch over to GenX, which at the time was thought to be safer because of its shorter carbon chain.
As part of the switch, the EPA, concerned about the bioaccumulative effects and potential toxicity of GenX, made DuPont enter into a consent order requiring the company to remove 99 percent of GenX from its waste streams and air emissions.
DuPont insisted that no GenX would be released because the manufacturing process kept it in a closed-loop system, and any wastes were hauled off site. Chemours, which spun off from DuPont in 2015, made the same claim.
But GenX was being released – at least partially as a byproduct of other chemical processes – into the river and the air and had been since at least the early 1980s.
“Only after substantial media coverage in 2017 regarding the presence of GenX in the Cape Fear River did Chemours inform DEQ that it and DuPont had discharged GenX and other PFAS as byproducts for decades at the Fayetteville Works and routinely discharged those byproducts into the Cape Fear River,” the lawsuit says.
The media coverage began when a team of researchers led by Detlef Knappe of N.C. State found GenX and other PFAS in the river in November 2016. In one sample area of the river, GenX measured 4,500 parts per trillion, more than 30 times higher than the current state health advisory for the substance.
The discovery led to a consent order entered into by Chemours, the state and Cape Fear River Watch in February 2019. The order fined Chemours $12 million and, among other things, requires it to determine the extent of contamination in private groundwater wells and to provide replacement drinking water for wells found to exceed specified contamination standards. Most people with contaminated wells are now using under-the-sink reverse osmosis filtration systems in their kitchens and bathrooms.
The consent order also required Chemours to remove 99.9 % of PFAS from its air emissions through the installation of a thermal oxidizer, which began operating in December 2019 at a cost to Chemours of $100 million.
The lawsuit says the thermal oxidizer should have been installed much earlier.
“Thermal oxidizer technology has been used by industry members for decades, and DuPont and Chemours could have installed the thermal oxidizer decades earlier,” the lawsuit says. “Had they done so, Cumberland County’s harm would have been lessened substantially, if not entirely.”
County’s costs adding up
Cumberland County has already incurred substantial costs associated with the contamination from the chemical plant and could soon be paying substantially more. The county is negotiating with the Fayetteville Public Works Commission to provide a bulk water system to serve the Gray’s Creek community, which has been hardest hit. In 2020, the system was estimated to cost $64 million.
Southpoint, a neighborhood in Gray’s Creek Township, has taken a double whammy. In 2013, 54 homes in and near Southpoint were hooked up to water lines that were extended from Bladen County’s water system after contamination from a leaking underground gasoline storage tank was found there.
According to the lawsuit, Chemours tested a well in Southpoint and found PFAS in the water. That contamination caused the county Board of Commissioners to require developers who want to connect to the water system to include a notice of the potential contamination on the recorded plat as a public notice to prospective homebuyers. Gray’s Creek has been among the fastest-growing areas of the county.
“The widespread level of contamination of the county’s groundwater and surface water sources, as demonstrated by the Southpoint and PWC examples, will require the development of new, clean water sources, such as deep wells with RO (reverse osmosis) filtration and treatment systems to fully remediate the groundwater contamination,” the lawsuit says.
The contamination has caused the county to have to lower property values for many homes with contaminated wells, according to the lawsuit. As a result, the county will collect “considerably less revenue’’ from property taxes.
The county has also found that leachate from its Ann Street landfill contains PFAS, which will have to be dealt with, the lawsuit says.
The county is being represented in the lawsuit by Baron & Budd of Texas, Crueger Dickinson of Wisconsin and Seagle Law of Asheville. County residents have joined separate class-action lawsuits.
“DuPont’s and Chemours’s liabilities for PFOA and other PFAS contamination account for a substantial portion of their environmental liabilities nationwide,” the lawsuit says. “DuPont sought to insulate itself from billions of dollars of legacy PFAS liabilities, especially those arising from PFOA and other PFAS contamination at chemical plants that it owned and operated throughout the country.
“Upon information and belief, DuPont’s potential cumulative liability related to PFOA and other PFAS is likely billions of dollars due to the persistence, mobility, bioaccumulative properties, and toxicity of these ‘forever chemicals,’ as well as DuPont’s decades-long attempt to hide the dangers of PFAS from the public.”
DuPont attempts to hide billions in assets
According to the lawsuit, DuPont’s in-house lawyers were concerned about the company’s legal exposure from PFOA as early as 2000. One of those lawyers wrote back then to his co-counsel regarding the exposure DuPont could have from contamination leaving its Parkersburg, West Virginia, plant:
“We are going to spend millions to defend these lawsuits and have the additional threat of punitive damages hanging over our head. Getting out in front and acting responsibly can undercut and reduce the potential for punitives . . . . Our story is not a good one, we continued to increase our emissions into the river in spite of internal commitments to reduce or eliminate the release of this chemical into the community and the environment because of our concern about the biopersistence of this chemical.”
By 2013, the lawsuit says, DuPont began to consider restructuring the company to “avoid responsibility for the widespread environmental harm that DuPont’s PFAS had caused and shield billions of dollars in assets from these substantial liabilities.”
According to the lawsuit, DuPont had made a three-part plan. In the first part, DuPont and The Dow Chemical Co. began discussing a merger, one DuPont sought to isolate its “massive legacy liabilities from its valuable tangible assets in order to shield those assets from creditors and entice Old Dow to pursue the proposed merger.”
DuPont then transferred its performance chemical business, including Teflon and other products, to its wholly owned subsidiary, Chemours. In July 2015, DuPont spun off Chemours as a separate public entity, saddling Chemours with DuPont’s massive liabilities, according to the lawsuit.
“DuPont knew that Chemours was undercapitalized and could not satisfy the massive liabilities that it caused Chemours to assume,” the lawsuit says. “DuPont also knew that the Chemours Spinoff alone would not isolate its own assets from its PFAS liabilities and that DuPont still faced direct liability for its own conduct.”
The second step of the plan, according to the lawsuit, was for DuPont to further distance itself from the exposure by merging with “Old Dow,” forming a new holding company called DowDuPont. Through a series of agreements, a substantial portion of DuPont’s assets were transferred to DowDuPont.
The third step involved DowDuPont spinning off two new companies, Corteva and Dow Inc. DowDuPont was then renamed DuPont de Nemours Inc., the lawsuit says. New DuPont and New Dow now hold the vast majority of the tangible assets that DuPont formerly owned.
“Many of the details about these transactions are hidden from the public in confidential schedules and exhibits to the various agreements,” the lawsuit says. “Upon information and belief, DuPont, New DuPont, and Corteva have intentionally buried these details in an attempt to hide from potential judgment creditors, like Cumberland County, details regarding where DuPont’s valuable assets went and the inadequate consideration that DuPont received in return.”
The lawsuit alleges that Corteva and New DuPont assumed DuPont’s liabilities and can be sued along with Chemours.
Chemours released a statement about the lawsuit Thursday afternoon.
“We are disappointed to learn that Cumberland County chose to file a lawsuit,” it reads. “Chemours has engaged with the County regularly, and continues to do so, in implementing the consent order agreement with the State of North Carolina Department of Environmental Quality.
“Our discussions with the County have included offering different alternative water systems to qualifying county properties. We are also working collaboratively with the County and PWC water to connect impacted Cumberland County residents to public water where feasible…We are committed to continued engagement with Cumberland County as we implement the terms of the consent order agreement.”
Cumberland County officials say they retained the three law firms that filed the lawsuit after Chemours backed out of negotiations to share in the costs of providing public water to Gray’s Creek.
Greg Barnes is an investigative reporter for CityView TODAY. He can be reached at email@example.com. Have a news tip? Email news@CityViewTODAY.com.