In January, the Town of Pittsboro filed a long awaited lawsuit in response to decades of contaminated drinking water from PFAS discharges upstream. Pittsboro is the only town in the Haw River watershed that pulls their drinking water directly from the Haw River. This lawsuit has the potential to make progress towards PFAS reduction if other municipalities and impacted communities also join in this effort. As a stand alone lawsuit, this outcome of this litigation will only be recouping costs incurred for the Town of Pittsboro to investigate, monitor, and treat for the PFAS contamination.
Industrial Toxins Addressed in Lawsuit
This lawsuit focuses not on 1,4-dioxane, but solely on PFAS (per- and poly- fluoroalkyl substances) including AFFF fire-fighting foams. PFAS is a class of compounds with over 6000 chemicals. This family of chemicals has been studied extensively since a lawsuit in Parkersburg, West Virginia between a cattle farmer and DuPont. A cattle farmer notices his cows were sick, their teeth were rotting, and they began to die off after drinking from a creek downstream of a DuPont discharge. Piles of white foam were seen at the discharge. This led to the largest public health study ever condcted, where it was discovered that two of these PFAS compounds, PFOA and PFOS, were detected in extremely high levels in the community of Parkersburg. While searching for a control, or a clean blood sample with no PFAS present, it was also discovered that these compounds were present in every study participant across the globe, even polar bears. These two toxins have contaminated the world. The newest health advisories set by the EPA are 0.004 ppt for PFOA and 0.02 ppt for PFOS for lifetime exposure. These toxins lead to increased risks of cancers, low birth weights, hyper tension, high cholesterol, immune disorders, low vaccine response rates, and other serious health concerns.
Summary of the Lawsuit
Pittsboro has named twenty major corporations as defendants in this lawsuit. Some of the most recognizable defendants include 3M, Dupont, Chemours, and BASF corporations. Many others are subsidiaries of these larger corporations, but all are responsible for having “designed, manufactured, marketed, promoted, sold, supplied, distributed, used, or disposed of PFAS products, including AFFF,” or fire-fighting foams. The lawsuit states that these companies had the financial resources, legal and scientific expertise, and time to fully know and understand the risks of these products. Pittsboro is seeking to “ensure that those profited from the production promotion and sale of PFAS products also bear the costs stemming from the ordinary and foreseeable handling and use of those products.”
Two of the five claims in the lawsuit include design defect and failure to warn. This argument states that these products were not adequate in their intended use and were unreasonably dangerous. These companies knew the risks of public and environmental harm, but failed to use safer products and practices. Two additional claims include public and private nuisance. This argument states that the drinking water, natural resources, surface water, groundwater, and the Town’s property including the drinking water plant have been contaminated. Lastly, the claim of trespassing covered the contamination and unwarranted harm to public and private property.
Pittsboro’s solution proposed in this lawsuit is solely focused on relief for costs associated with past actions. These companies conducted business within the Haw River watershed, and therefore, are being held responsible. The lawsuit seeks recovered costs for administrative and response, loss of use, natural resource damages, investigation, sampling, monitoring, and treatment costs, court costs, and punitive damages for the malicious actions of the corporations named in the suit.
What does this mean for Pittsboro?
After six years of pushing the Town of Pittsboro to take meaningful action to hold upstream polluters accountable, this is an encouraging sign. However, it took six years of presenting at Town Council meetings, holding public meetings, sending mailers and phone calls to every resident, working with amazing community members like Katie Bryant, Jessica Merricks, Reverend Carl Thompson and his wife Mechelle Thompson to get the word out to Pittsboro residents that the drinking water supply was extremely contaminated. The lack of action meant increased and prolonged exposure for these communities. Yet, the recognition of these levels of contamination in the drinking water supply shows the Town’s commitment to addressing this. Just last year, a granular activated carbon treatment facility was put in place. That system has reduced PFAS levels in finished drinking water by over 90%.
This lawsuit focuses only on the financial burden that Pittsboro faced because of past actions by these corporations. What is missing here is any accountability for the industries in the watershed that have been using those toxins and dumping the products into surface water. Elevate Textiles, Shawmut Textiles and Unichem in Burlington, and Lanxess, Shamrock Environmental, and the Piedmont Triad Airport in Greensboro continue to use and discharge these products. For multibillion dollar corporations, this lawsuit will have little impacts, unless this action is followed by other impacted communities pushing towards this same goal. These products have to be eliminated from all production lines at the source in order to protect communities not only in the Haw River watershed and North Carolina, but worldwide. These chemical corporations need to be held accountable. The Town of Pittsboro does not have the authority to ban PFAS products from being sold within the Haw River watershed. However, legislation has repeatedly been introduced in North Carolina to enforce that and has not been passed. Representative Pricey Harrison plans to reintroduce these bills this session. We need you to contact your representatives and ask for their support of those bills.
Haw River Assembly has been working with Southern Environmental Law Center to uphold the Clean Water Act and hold upstream polluters accountable. Our litigation work against the City of Burlington and the City of Greensboro has led to increased investigation to track sources and strict limits on discharges. However, we do not have the authority to require strict discharges limits on permits across the watershed. North Carolina Department of Environmental Quality does have that authority. Upcoming discharge permits will be the opportunity the set those limitations. Sanford’s wastewater treatment plant is currently under review and a public hearing is scheduled for March 7th at 6pm. Asheboro’s permit is also under review and the comment period closed earlier this month. We anticipate a public hearing within the next month. Greensboro, Reidsville, and Burlington are also in the queue for upcoming permit reviews. All of these permits also require public input. Haw River Assembly will be pushing our members to attend public hearings and submit comments to have the most protective permits for our river and our communities.