GenX Update: State Environmental Agency Seeks Injunction Against Chemours From Further Discharging GenX

We’ve posted on several occasions about the ongoing litigation over GenX contamination emanating from the Chemours Fayetteville Works facility along the Cape Fear River in North Carolina.

The damages that defendants typically face in these trending water contamination actions arise not only from cleanup costs to the waterbody at issue, but from the impact to the surrounding communities —ranging from PI, damage to real property/diminution in value, natural resources, and medical monitoring. There’s also another type of damages in the form of equitable relief. Last week, NC’s Department of Environmental Quality (DEQ) sought such type of relief. In particular, the DEQ’s amended complaint, which was filed in North Carolina state court, sought to enjoin Chemours from any and all future discharges of GenX.

By way of background, and as previously reported in our past blog posts, GenX is a reformulated substitute compound that has a shorter half-life than traditional PFAS compounds, such as PFOA or PFOS. GenX was created as a substitute compound to PFOA, but is having its own environmental challenges and regulatory scrutiny. PFASs are known generally for their heat, stain, and water-resistant properties, and have become ubiquitous in consumer products for many decades dating back to the ‘40s, such as nonstick cookware (think Teflon), stain-resistant carpets and upholstery, clothing, food packaging, and fire-fighting foams.

Turning back to GenX and NC’s DEQ, recent testing by the DEQ’s Division of Air Quality revealed that Chemours was allegedly emitting GenX at levels almost 40 times higher than the figures originally reported to the DEQ. The DEQ is now asking the court for an injunction, requiring Chemours to do the following laundry list of action items:

Remove, treat, or control air emissions and all other sources of GenX such that they no longer cause or contribute to any violation of North Carolina’s groundwater rules; prohibit the discharge of Chemours’ process wastewater until such time as the DEQ issues a permit with appropriate limits authorizing such discharge or otherwise authorizes such activities; provide a full accounting of the unpermitted discharge of process wastewater; and cease and abate all ongoing violations of North Carolina’s water and air quality law.

Interestingly, at this stage, in order to successfully obtain the injunction, rather than showing actual injury, the DEQ must show only that Chemours’ acts or practices adversely affect the public interest. This latest effort by a state regulatory body demonstrates that the regulated industry must be prepared to defend against all sorts of damages, including efforts to immediately cease business altogether.