@NCCapitol

@NCCapitol

NC Attorney General brings in national law firm for PFAS investigation

Posted August 12, 2020 11:06 a.m. EDT
Updated August 13, 2020 1:32 p.m. EDT

— North Carolina's attorney general has partnered with a national law firm with extensive experience in PFAS litigation, signaling a potentially significant expansion of the state's legal efforts against companies that put these "forever chemicals" into the air and water in North Carolina.

A spokeswoman for Attorney General Josh Stein confirmed this week that the state has an arrangement with Kelley Drye, a firm with eight offices nationally, none in North Carolina. Among other things, the firm's website says it is involved in more than 20 state and federal litigations around the country over PFAS, a chemical family that includes GenX and other long-lasting compounds that can build up in the body and cause health problems.

"We have a pre-eminent team of attorneys dedicated to helping clients address PFAS contamination, and we are counsel in some of the biggest and most significant PFAS litigations in the country, both for public and private clients," the firm's website states.

Among other things, the firm is involved in hundreds of cases from around the country over the chemicals used in firefighting foam, which have been consolidated in a U.S. District Court in South Carolina.

On Monday, Stein announced that his office had "launched a formal investigation into manufacturers and other parties responsible for per- or polyfluoroalkyl substance (PFAS) contamination in North Carolina," but he didn't mention the partnership with Kelley Drye until WRAL News asked about it specifically.

In the announcement, Stein's office also described the inquiry as an expansion of an investigation already underway. His spokeswoman said it is not a criminal investigation.

Stein's office has worked for years on PFAS with the state Department of Environmental Quality, which went to court to enforce air and water pollution rules against Chemours, a chemical company with a major facility near the Bladen-Cumberland county line.

That facility discharged GenX into the Cape Fear River for years, a fact largely unknown until 2017, when the Wilmington Star News published an expose noting chemical concentrations in the area's drinking water.

Chemours has largely stopped discharging the chemical, and it spent millions of dollars on air scrubbers and other measures to keep GenX from getting into the atmosphere, ground and water. A type of PFAS and a common chemical around the world used to make Teflon, fire-fighting foam and other modern conveniences, GenX has been found in people's blood, food and water.

This chemical and others in the PFAS family are widespread. Among other places, they've been found in Cary's drinking water supply and Greensboro's, neither of which are downstream from the Chemours plant. The chemicals can't be removed from drinking water supplies using traditional methods, and tens of millions of dollars in water plant upgrades are planned.

The chemicals' health effects aren't fully understood, but they may increase the risk of cancer, among other things.

Stein's announcement signaled a broadening of the state's effort, potentially beyond Chemours' production lines, saying he wants to "understand the extent of the damages to North Carolina’s natural resources caused by contamination from GenX and other PFAS chemicals and to further evaluate contamination elsewhere in the surface waters, soils and groundwater of North Carolina."

"My office will not hesitate to bring legal action against any polluters if that’s what it takes to keep the people of North Carolina safe," Stein said in the release.

A Chemours spokeswoman said the company invested more than $100 million to control emissions at its Fayetteville Works site and that it is now "destroying over 99% of PFAS air emissions from our site" and that it stopped putting wastewater into the Cape Fear River in 2017.

"To our knowledge, the commitments we’ve made and actions we’ve taken and continue to take are more robust than the actions of any other company in North Carolina," spokeswoman Lisa Randall said in a statement. "We would encourage the other sources of PFAS throughout the state to do the same."

Stein's office wouldn't release its contract with Kelley Drye. State law allows them to keep that secret until any potential legal proceeding concludes. At that point, the state would have to reveal contingency fees paid to outside counsel.

Bill Jackson, co-chair of Kelley Drye's national Environmental Law practice group in Houston, did not return a phone message seeking comment.

Beyond the Department of Environmental Quality's ongoing enforcement against Chemours, which has court supervision, there are at least three lawsuits against the company, all at various stages in the process:

  • A potential class-action suit seeking damages on behalf of people whose water was contaminated. The case is about three years old and bogged down in discovery. It has not been certified yet as a class action.
  • Another case seeking damages over water contamination, but keying on well owners near the plant.
  • A suit filed by Brunswick County and the Cape Fear Public Utility Authority, which provide drinking water in the Wilmington area.

A federal grand jury reviewing Chemours' discharges wrapped up earlier this year without pursuing criminal charges, the company told shareholders in a routine report earlier this month.

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