GenX and North Carolina’s Drinking Water

An “emerging contaminant” is an under-researched chemical byproduct, often from industrial processes, which has no regulatory health standards for exposure or release. Emerging contaminants such as complex, unnatural chemicals generated by modern industry are concerning because they may have long-term adverse impacts on human intelligence, reproduction, behavior, and the endocrine system’s regulation of hormones in the human body. Human exposure to emerging contaminants often occurs through eating of contaminated wildlife or agricultural products, breathing contaminated air or drinking contaminated water, or skin exposure. Many emerging contaminants bioaccumulate in living tissues, meaning low levels of environmental exposure can compound over time to create a substantially greater concentrations within the body.

One such emerging contaminant recently discovered in the Cape Fear River and surrounding areas in southeastern North Carolina is “GenX,” a chemical used in the manufacture of Teflon by the industrial manufacturer Chemours at its Fayetteville Works Plant. GenX is in the class of chemicals called “perfluorinated compounds” (“PFCs”), many of which have been proven to cause various cancers and developmental problems in humans and other animals. The PFC chemical used by Chemours, and DuPont before it created Chemours as a subsidiary, before GenX, known as “PFOA” or “C8,” was proven to cause at many human ailments, including testicular and kidney cancer. DuPont had downplayed the clear findings of adverse health effects on lab rats contained in its own research studies for years while continuing to use the chemical, which contributed to a finding of liability against DuPont and its spinoff Chemours in a major toxic tort class action and $671 million class action settlement. This toxic tort litigation in part led the Fayetteville Works Plant to discontinue use of PFOA and switch to GenX in its Teflon manufacturing operations. Now, a litany of similar toxic tort claims have been brought against Chemours and DuPont for their use of GenX at the Fayetteville Works Plant.

The Environmental Protection Agency (“EPA”) does not currently regulate use of PFCs in a manner sufficient to prevent adverse human exposure to PFCs due to an apparent lack of scientific data proving PFCs adverse impacts on human health. North Carolina’s state regulation of PFCs and other emerging contaminants has also proven insufficient to protect humans and wildlife from damaging exposure through drinking water and other pathways. In an effort to deal with GenX and other emerging contaminants, the North Carolina House of Representatives has passed House Bill 189, titled “An Act to Implement Short-Term Measures to Respond to Emerging Contaminants in the Environment.” The Bill, currently undergoing review by the House after modification by the North Carolina Senate, calls for studies and recommendations on administrative reform to state environmental and public health agency procedures to better deal with emerging contaminants and appropriates funding to state agencies and local stakeholders to tackle the issue.

While House Bill 189’s funding and administrative reform would start North Carolina down the path to addressing the emerging contaminants issue, the relatively small amount of agency funding and lack of any substantive requirements on state agencies and industry actors make this potential law insufficient by itself to control emerging contaminants such as GenX in North Carolina. The Bill will provide some remedies to administrative hurdles currently impeding North Carolina from addressing emerging contaminants such as GenX. However, the bill does not directly protect drinking water from emerging contaminants, address the damage already done to human health and the environment, or prevent this from happening again. Thus,

without a new EPA regulation and a more substantive state regulation, the GenX issue is destined to play out in the familiar repeating cycle

of new chemical use, research findings of adverse health effects, industry downplaying of adverse health effects, toxic tort liability, and industry switchover to a new, unregulated, structurally similar chemical with similar health concerns.