Per- and polyfluoroalkyl substances (PFAS) are a category of man-made chemicals that include perfluorooctanic acid (PFOA), perfluorooctanesulfonic acid (PFOS), and GenX, among other chemicals. PFAS have been widely manufactured and used in numerous products in the United States since the 1940s.1 In recent years, PFAS have emerged as a contaminant of concern at sites throughout the United States, leading to increased attention by regulators and the plaintiffs' bar. As a follow-up to the recent article entitled PFAS Contamination Remains a Hot Button Issue: Overview of Recent Regulatory, Litigation, and Technical Developments, this article discusses the increasing focus on GenX, a more recent successor to PFOA and PFOS. This focus, which originates in North Carolina, has led to an influx of toxic tort and other litigation despite a lack of regulatory standards. As a result, the nascent effort to investigate and regulate GenX is occurring concurrently with litigation seeking damages associated with GenX—which, if allowed to continue, will inevitably influence the regulatory process.
Background of PFOA and PFOS
By way of background, PFOA and PFOS are fluorinated organic chemicals that are part of the larger PFAS chemical group. PFOA and PFOS have been extensively produced in the United States and were used to make consumer products such as carpets, clothing, fabrics, paper packaging, and other materials that are resistant to water, grease, and stains. Between 2000 and 2002, PFOS was voluntarily phased out of production in the United States. In 2006, a number of companies voluntarily agreed to phase out their production of PFOA and PFOA-related chemicals. According to the Environmental Protection Agency (EPA), studies indicate that exposure to PFOA and PFOS over certain levels "may result in adverse health effects[.]"[i] E.I. DuPont de Nemours and Company (DuPont) began using PFOA (also known as "C8") in 1951 to make consumer products, including Teflon, and continued to use C8 for decades. The production and use of C8 have led to a long history of liabilities for DuPont.
Emergence of GenX
GenX is the brand name of a chemical (CS dimer acid) that the Chemours Company (Chemours)—which spun out of DuPont in 2015—began producing at its facility in Fayetteville, North Carolina, in 2009 for use in food packaging, paints, cleaning products, nonstick coatings, outdoor fabrics, and firefighting foam. Most notably, GenX is used as a replacement for C8 in the manufacturing of Teflon. The potential health and environmental concerns attendant to C8 led DuPont to replace C8 with GenX, which is also a PFAS. GenX is based on a chain of six rather than eight carbons and is significantly less persistent and bioaccumulative than C8. GenX is currently unregulated by EPA, meaning there are no regulatory limits and no testing requirements. However, in 2009, DuPont entered into a consent order with EPA that allowed DuPont to produce GenX, provided that DuPont adhered to strict emissions controls and agreed to further testing of the health effects of GenX. Importantly, however, GenX can also be produced as a by-product of certain manufacturing processes that have existed at the Fayetteville facility before 2009. The lack of regulation and general uncertainty surrounding GenX are common among the class of "emerging contaminants," which, in some cases, lack EPA-approved testing methodologies.
Attempts to Regulate GenX
Although GenX is unregulated by EPA, a number of steps have been taken in recent years at both the state and federal level to investigate GenX. EPA scientists first detected GenX in Cape Fear River in 2012—water samples taken from the Cape Fear revealed a wide range of perfluorinated compounds. In November 2016, environmental scientists published the results of water testing that showed the presence of GenX, among other perfluorinated chemicals, in the Cape Fear River.2 The results of the testing also allegedly showed that some conventional water treatment technologies may not effectively remove such chemicals from drinking water.3
In June 2017, a local Wilmington newspaper obtained the research showing detections of GenX in the Cape Fear River and began to publish stories about these findings.4 During the course of meetings between Chemours and state and local officials, Chemours reportedly confirmed that the GenX detected was likely not from the production line.5 Rather, GenX was a by-product of other chemical manufacturing at the Fayetteville facility and may have been released into the Cape Fear River prior to 2009.6 Chemours purportedly maintained that the 2009 consent order covered only GenX's purposeful manufacture and because the contamination was the result of a by-product from other chemical manufacturing, it was under no obligation to disclose the presence of GenX in the waste stream.7
Shortly thereafter in July 2017 the North Carolina Department of Health and Human Services (NCDHHS) announced a provisional drinking-water health "goal" of 140 parts per trillion (ppt) applicable to finished drinking water (as opposed to source water). Prior to that announcement, the health goal for GenX in drinking water was 71,000 ppt.8 The DHHS was clear that "[t]his health goal [is] not a boundary line between a 'safe' and 'dangerous' level of a chemical. Rather, it represents the concentration of GenX at which no adverse non-cancer health effects would be anticipated in the most sensitive population over an entire lifetime of exposure."9
In September 2017, the North Carolina Department of Environmental Quality (NCDEQ) ordered Chemours to cease discharges of all fluorinated compounds into the Cape Fear River. And in November 2017, following a chemical spill from the prior month, NCDEQ cited Chemours for violating provisions of its National Pollution Discharge Elimination System wastewater discharge permit.10 At the same time that the state and federal regulatory agencies were investigating GenX, including its presence in potable wells and water resources near the Fayetteville Works facility, local citizens and governmental entities initiated lawsuits against Chemours and DuPont.
Since October 2017, at least six (6) lawsuits have been filed against DuPont and Chemours relating, at least in part, to the presence of GenX near the Fayetteville facility. The lawsuits fall into two general categories: individual plaintiffs and water providers. Four lawsuits, three of which seek class certification, have been initiated by individual property owners whose water supply originates from the Cape Fear River or an aquifer allegedly impacted by GenX.
The initial complaints, both class actions, were filed in October 2017 on behalf of residential property owners who receive water from the Cape Fear River. The first complaint ("Nix")11 sought damages on behalf of residents supplied with water via the Cape Fear Public Utility Authority. The second complaint ("Morton"),12 filed by the same attorneys, sought damages on behalf of residents supplied with water via the Brunswick County Northwest Water Treatment Plant.
Shortly thereafter, a separate group of plaintiff firms led by Cohen Milstein Sellers & Toll PLLC and Susman Godfrey, L.L.P., filed a broader toxic tort class action (hereinafter "Carey").13 The Carey plaintiffs sought damages and injunctive relief on behalf of all individuals and entities who, from 1980 to the present, fall into one of two categories: (1) individuals who have been or are exposed to GenX discharged from the Fayetteville Works; and (2) individuals who live in New Hanover, Brunswick, Bladen, Cumberland, or Pender Counties, North Carolina, and have been exposed to water drawn from Cape Fear River.
Also in October 2017, two water suppliers, Brunswick County14 and Cape Fear Public Utility Authority (CFPUA),15 filed separate lawsuits against Chemours and DuPont. The CFPUA complaint, which includes products liability claims for failure to warn and negligent manufacture, alleges that the defendants' decision to replace PFOA with GenX "amounts to a toxic chemical shell game, played at the expense of the lower Cape Fear River and those who use it for potable water." As of May 21, 2018, GenX has not been detected by CFPUA at levels exceeding the 140 ppt preliminary health goal.16
Recent investigations in West Virginia and by CFPUA itself indicate that granulated carbon filtration systems are effective in removing GenX from drinking water. CFPUA maintains, however, that its treatment plant "is unable to remove these compounds" and, in May 2018, CFPUA's board of directors voted to investigate potential equipment upgrades—which CFPUA estimates could cost approximately $50 million.17 In June, CFPUA also surveyed its customers asking them to "[s]elect the most (per bimonthly bill) you are willing to pay in addition to your current charges for the CFPUA plant upgrade[.]" Interestingly, the survey, which provides options ranging from $0 to $20+, is similar to those used in natural resource damages actions to prove and quantify loss of use or compensatory restoration damages.18
All of the above matters (i.e., Nix, Morton, Carey, and Brunswick County and CFPUA) are venued before Judge James Dever III in the federal District Court for the Eastern District of North Carolina. In January, Judge Dever ordered plaintiffs to file two master consolidated complaints—one for the individual property owners (Nix, Morton, and Carey) and a second for the public water utilities (Brunswick County and CFPUA). The consolidated class action complaint was filed on behalf of "all persons who from 1980 to the present lived within New Hanover, Brunswick, Bladen, Cumberland, or Pender Counties, or who currently own property there."
Subsequent to the filing of the consolidated complaints, the Baron & Budd law firm, which also represents Brunswick County, filed an additional toxic-tort action (hereinafter "Dew").19 Perhaps cognizant of the difficulties associated with class certification in a toxic tort action, where individual issues often overwhelm the common questions,20 the Dew matter seeks damages on behalf of approximately 70 individuals. Plaintiffs' counsel have recently indicated an intent to add more individual plaintiffs. Unlike the consolidated action for private property owners, the Dew action includes a failure-to-warn claim. Not to be ignored, the Cape Fear River Watch, a nonprofit organization whose aim is to protect and improve the water quality of the Lower Cape Fear River Basin, recently announced its intent to file suit against Chemours for Clean Water Act violations.21
DuPont and Chemours have filed motions to dismiss in both of the consolidated actions as well as the Dew matter.22 With respect to the individual property owners, the motions are largely consistent and maintain that plaintiffs have failed to adequately plead the elements of each claim. In the Dew matter, defendants pursued a new theory that seeks to leverage the premature nature of the litigation and the lack of regulatory standards. More specifically, defendants argue that, should the court decline to dismiss the claims, the court should stay the litigation proceedings pursuant to the primary-jurisdiction doctrine. Defendants argue that plaintiffs are implicitly asking the fact finder to establish a maximum contaminant level ("MCL") for GenX and other compounds before the state or federal government has completed its ongoing effort to consider such a standard: "Plaintiffs seek to have this case outpace these regulatory processes."
While North Carolina remains the epicenter for GenX litigation, other state environmental agencies are beginning to investigate and informally regulate GenX. In New York, for example, the state has sampled for GenX in Hoosick Falls. In West Virginia, GenX was recently found in the groundwater near a facility with preexisting PFOA impact. Additional testing is under way to see whether GenX is present in the drinking water. At the federal level, EPA is currently developing human health toxicity values for GenX, which are expected in summer 2018.
As demonstrated by the events in North Carolina (and elsewhere), regulated parties continue to face the difficult prospect of defending litigation concurrent with governmental investigations regarding how and whether to regulate an emerging contaminant. Litigating toxic tort matters in the absence of data evidencing human health effects—or whether the contaminant is (or ever was) actually present in drinking water—often inures to plaintiffs' benefit, who can rely on the local population's anxiety over the unknown. Courts should allow the regulatory process to further develop before litigating claims that, at least in part, require the fact finder to step into the shoes of the regulator.
2 See M. Sun et al., Legacy and Emerging Perfluoroalkyl Substances Are Important Drinking Water Contaminants in the Cape Fear River Watershed of North Carolina, 3 (12) Envtl. Sci. Tech. Letters 415–19 (2016), (available at https://pubs.acs.org/doi/abs/10.1021/acs.estlett.6b00398).
3 See Consol. Class Action Complaint, 7:17-cv-00201-D, ECF No. 42, ¶86.
4 See, e.g., Star News Online, Toxin Taints CFPUA Drinking Water (June 8, 2017), http://www.starnewsonline.com/news/20170607/toxin-taints-cfpua-drinking-water/1; Star News Online, So How Much GenX Goes into the Cape Fear? (June 16, 2017), http://www.starnewsonline.com/news/20170616/so-how-much-genx-goes-into-cape-fear.
5 See Star News Online, Chemours: GenX Polluting the Cape Fear Since 1980 (June 16, 2017), http://www.starnewsonline.com/news/20170615/chemours-genx-polluting-cape-fear-since-1980.
7 See id.; Ken Otterburg, Teflon's River of Fear, Fortune, May 24, 2018.
8 See N.C. Dep't of Health & Human Servs., GenX Frequently Asked Questions (July 14, 2017), https://files.nc.gov/ncdeq/GenX/DEQ-GenX%20FAQ%2008212017%201.pdf.
11 Bren Nix et al. v. Chemours Co. et al., Case No. 7:17-cv-00189-D.
12 Roger Morton et al. v. Chemours Co. et al., Case No. 7:17-cv-00197-D.
13 Victoria Carey et al. v. E.I. DuPont de Nemours and Co. et al., Case No. 7:17-cv-201-D.
14 Brunswick County v. DowDuPont et al., Case No. 7:17-cv-00209-D.
15 Cape Fear Pub. Util. Auth. v. Chemours Co. et al., Case No. 7:17-cv-00195-D.
16 The highest detection to date is 16 ppt. See https://www.cfpua.org/CivicAlerts.aspx?AID=887. The utility tested for more than 30 perfluorinated compounds, some of which lack testing protocols—as a result, the levels must be estimated. In June 2017, CFPUA sent a letter to Chemours requesting that it identify all testing methods for identifying GenX chemicals. See https://www.cfpua.org/DocumentCenter/View/11262/June27_lettertochemours.
18 The CPFUA also asks customers who, in their opinion, "is responsible for keeping GenX and other PFAS out of the [Cape Fear] River?" The options are provided in the following order "Upstream discharges," "State regulators," "Local utilities," "I don't know," and "Other"—with the last options providing a comment field. See https://www.cfpua.org/758/Give-Feedback.
19 James S. Dew et al. v. E.I. DuPont de Nemours & Co. et al., Case No. 5:18-cv-073-D.
20 See, e.g., In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 209 F.R.D. 323 (S.D.N.Y. 2002) (denying class certification for private well owners whose wells were found to contain the former gasoline additive, MTBE); Ebert v. General Mills, Inc. (823 F.3d 472) (2016) (reversing class certification in a vapor intrusion action).
22 The motions to dismiss have been fully briefed in the consolidated matters (Nix, Morton, Carey, and Brunswick County and CFPUA). Plaintiffs in the Dew matter have received two extensions for their opposition to allow time to file an amended complaint with additional plaintiffs.
Originally published in The Amercian Bar Association, July 26, 2018
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