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Judge allows some claims over GenX contamination to proceed

Source: Superfund Report, May 6, 2019
Posted on: https://www.advisen.com

A federal district court judge is allowing North Carolina municipalities to proceed with some of their claims against chemical manufacturer Chemours, agreeing that the plaintiffs have plausibly alleged that the perfluorinated chemical GenX was negligently discharged from a company facility, creating a private nuisance and trespass to real property.
But Judge James C. Dever III of the U.S. District Court for the Eastern District of North Carolina in an April 19 order granted Chemours’ motion to dismiss several other claims related to public nuisance, trespass to chattels, negligence per se, negligent failure to warn, negligent manufacture, interference with riparian rights, and punitive damages.
The litigation, combining claims from suits by the Cape Fear Public Utility Authority and Brunswick County, NC, against Chemours and E.I. du Pont de Nemours and Company, alleges Chemours and DuPont discharged perfluoro-2-propoxypropanoic acid, more commonly known as GenX, from the Fayetteville Works facility into the Cape Fear River and surrounding air, soil, and groundwater.
The chemical is “a trade name for a technology that is used to make high performance fluoropolymers (e.g., some nonstick coatings) without the use” of perfluorooctanoic acid (PFOA), an earlier generation per- and polyfluoroalkyl substances (PFAS) but one that is more ubiquitous in the environment than GenX.
Last year, Chemours agreed to a $13 million settlement with North Carolina officials and environmentalists, denying any wrongdoing but pledging to reduce air emissions and limit discharges to surface waters. Chemours said it agreed to the order solely “to avoid the expense, burden and uncertainty of litigation and to address community concerns about” its Fayetteville Works Facility, raising the possibility of reaching a settlement in the litigation brought by the municipal entities.
While the municipalities’ case will proceed on the claims of private nuisance and trespass to real property, the claims dismissed in the April 19 ruling include the plaintiffs’ contention that the defendants’ conduct is negligent per se and violates the facility’s Clean Water Act National Pollutant Discharge Elimination System (NPDES) permit and North Carolina’s water quality standards.
Dever said that even assuming that North Carolina courts recognize a right to sue in negligence based on a violation of a NPDES permit, plaintiffs fail to plausibly allege any violations of defendants’ NPDES permit.
Furthermore, the claim that alleges violation of the state’s water quality standards refers to a section of state regulations that are strict liability regulations and therefore do not create a standard for reasonable care, the judge says. “It would expand North Carolina public policy to allow plaintiffs to proceed on a negligence per se theory based on an alleged violation of a strict liability regulation,” the judge says.
But the judge rejected an additional request by the defendants to stay the litigation. In addition to seeking to dismiss all the claims, the defendants alternatively asked the court to stay the matter until North Carolina’s Department of Environmental Quality has resolved its inquiry into GenX and the Fayetteville Works facility. Dever, however, said none of the factors that apply to staying the matter under the primary jurisdiction doctrine apply here.
While the utilities’ NPDES claims were dismissed, EPA recently cited the facility for violating the Toxic Substances Control Act.

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