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City of Graham files federal suit over water contamination

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The city of Graham has filed a federal lawsuit against 17 major national corporations, and well as 20 “John Doe” defendants that developed chemicals, called PFAs and related toxins, that have been used for more than half a century in nonstick cookware and many other commercial products which are alleged to have contaminated the city’s water supply and resulted in serious health problems, including cancer.

In addition to DuPont and several of its affiliated companies, the lawsuit also lists among the defendants the Chemours chemical company.  The city’s suit describes the “John Doe” defendants as “unidentified entities or persons” whose actions or omissions may have contributed to contamination of Graham’s water supply.

In a 68-page lawsuit filed Thursday in the U.S. District Court for the Middle District of North Carolina, the city of Graham traces the development and widespread use of these chemicals – formally termed polyfluoroalkyl substances (“PFAS”), including perfluorooctane sulfonate (“PFOS”) and perfluorooctanoic acid (“PFOA”) but known informally as “forever chemicals” – to the marriage of a “toxic chemical family,” DuPont and 3M that began in a research lab at Penn State University in the mid-1940s.

The city’s suit outlines at least a half-dozen adverse health effects that have been linked to exposure to PFOS and PFOA, including: low birth weight and other effects on the development of fetuses during pregnancy; testicular and kidney cancer; liver damage; damage to the immune system; and thyroid disease.

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In 2016, the International Agency for Research on Cancer “concluded that there is evidence of the carcinogenicity of PFOA in humans and in experimental animals, meaning that a positive association has been observed between exposure to the agent and cancer for which a causal interpretation is credible,” the suit asserts.

According to the case background outlined in the city’s suit, 3M built its first manufacturing facility in 1949 to produce these chemicals, and soon landed its first customer: DuPont, which in 1951 began purchasing PFOA, for use in manufacturing a nonstick coating, Teflon.

During those early days, the suit alleges, “3M recognized the very characteristics” that gave these lab-developed compounds the characteristics that led them to be later dubbed forever chemicals.

“[They] have unique properties that cause them to be: (a) mobile and persistent, meaning that they readily spread into the environment where they break down very slowly; (b) …they tend to accumulate in organisms and up the food chain; and (c) toxic, meaning that they pose serious health and environmental risk to humans and animals,” the complaint states.

Not only can these chemicals readily contaminate the soil and leach into groundwater, they accumulate and remain in the body for years, according to the city’s suit.  “PFAs are readily absorbed after consumption or inhalation and accumulate primarily in the bloodstream, kidneys, and water,” the complaint states.  “Because certain PFAs chemicals are toxic, exposure to them poses serious health risks to humans and animals.”

The city’s suit also identifies among the alleged contaminants a compound widely used in firefighting, “Aqueous Film-Forming Foam” (AFFF).The city’s suit alleges that this firefighting foam contains compounds that degrade into forever chemicals that are also discharged into the environment and result in further PFAs contamination. (Thousands of other lawsuits are currently pending across the country over the alleged adverse health and environmental effects linked to the use of AFFF.)

“By at least the 1970s, 3M and DuPont knew or should have known that PFOA and PFOS are mobile and persistent…and toxic,” the city’s suit alleges.  “3M and DuPont concealed from the public and government agencies their knowledge of the threats to public health and the environment posed by [these chemicals].

Meanwhile, in 2012, federal regulators began working to monitor and mitigate PFAs contamination, based on a rule published by the U.S. Environmental Protection Agency in May 2012 that required public water services – including the city of Graham –to monitor for “30 contaminants of concern, including PFOS and PFOA,” the complaint states.

In May 2016, the EPA released “Lifetime Health Advisories,” supported by medical and scientific studies of the effects of PFOS and PFOA on lab rats and mice; those advisories were aimed at monitoring and mitigating further exposure to these chemicals, according to the city’s suit. In 2017, Congress passed legislation allocating $42 million to remediate contamination at U.S. military bases; and in 2019, Congress passed legislation prohibiting the use of firefighting foam containing PFAs.

Polluters would bear costs for minimizing and monitoring toxic PFAS, related chemicals

The city of Graham is seeking multiple individual and joint judgments against each of the defendants that would effectively force them to clean up and pay for the alleged contamination.  The damages being sought include: costs and expenses related to investigating, sampling, and reporting the extent of contamination from AFFF products; costs associated with managing contaminated water treatment plant “residuals”; costs to install and maintain filtration systems; remediation of contaminated public water supplies; costs for infrastructure modifications and upgrades, including design, construction, and maintenance; and costs for modifications to existing water supply sources that may be needed to minimize PFAS levels in drinking water.

The city is also seeking an award for punitive damages in an amount sufficient to deter the defendants from “similar wrongful conduct in the future”; and entry of an order that the defendants “acted with negligence, gross negligence, and/or willful, wanton, and careless disregard for the health and safety” of the city, among other claims for relief.

The federal court file does not indicate whether the city of Graham intends to seek class action status for its suit against the companies that allegedly produced and sold chemicals they knew to be toxic.

In addition to 3M, some of the other companies listed as defendants to the city’s suit include:  BASF Corporation; Carrier Global Corporation; The Chemours Company; Deepwater Chemicals; and Tyco Fire Products.

No similar suits appear to have been filed by other municipalities in Alamance County, though Burlington city officials have recently discussed with the city council what efforts have been made mitigate and minimize the presence of forever chemicals in the city’s water supply.

Graham’s city council held a special meeting on November 30, 2023, specifically to discuss litigation related to the firefighting foam (AFFF).  The agenda for that special meeting dealt with a resolution opting out of a class action suit against 3M and DuPont filed in federal court in South Carolina, which Graham’s city council adopted unanimously.

However, the council effectively opted to preserve any future claims that it might have against DuPont, 3M, and other defendants for potential future litigation, based on the resolution that the council adopted at that special meeting on November 30.

The city of Graham is being represented for its suit by two law firms: Aqualaw in Richmond, Virginia; and Robbins Geller Rudman & Dowd in Boca Raton, Florida.

None of the defendants had filed a response by press time.

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