As early as 1984, Chemours knew that PFAS did not ‘dissipate’ into the air. Now it is liable

When did Chemours know what? That question was central to the lawsuit that four municipalities had filed against the chemical group. Dordrecht, Sliedrecht, Papendrecht and Molenlanden wanted to hold the company liable for the contamination of municipal land with PFAS, emitted by the Teflon factory in Dordrecht. PFAS are water and grease repellent substances that hardly break down in the environment.

On Wednesday, the judge partly agreed with the municipalities in an interim ruling: Chemours (formerly DuPont) is liable and must pay for the purification of the soil contaminated by the factory. In addition, the company has failed to share information about environmental and health risks with the government. The emission of a very harmful type of PFAS (PFOA) was therefore unlawful for fourteen years, even though the company had a permit during that period. According to the judge, the emission of a new type of PFAS (GenX) since 2012 is not unlawful, because it has not been sufficiently demonstrated that the substance is toxic. The municipalities also wanted to hold Chemours liable for this.

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Vegetable garden vegetables and eggs

The ruling is painful for the American company. The PFAS manufacturer prefers to settle cases outside the courtroom. Chemours also made a settlement offer in this case, Zembla unveiled last month, without success. Chemours and DuPont have already paid hundreds of millions to citizens and governments in the US and Canada, but have never admitted a mistake.

In 2018, the municipalities of Dordrecht, Sliedrecht, Papendrecht and Molenlanden contacted Chemours for the first time; the company disclaimed any liability. The extent and severity of PFAS pollution in the region became increasingly clear. Soil, groundwater, vegetable garden vegetables, swimming puddles, eggs: PFAS is everywhere and distribution maps show the factory at the heart. The four municipalities therefore went to court in 2021.

Outside the courtroom, Chemours took a rigid position, to the annoyance of public authorities and concerned citizens. The company did not want to talk about the past, but did want to talk about the reduction of emissions in the present and the future. In hearings in the House of Representatives and the Provincial Council, Chemours executives criticized “suggestive reporting”. That would fuel people’s concerns about PFAS. “Let’s stick to the facts,” was the mantra.

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The judge has now tested those facts. The key year in the ruling is 1984. Internal DuPont company documents show that the company knew at the time that water supplies around a plant in Parkersburg, Virginia had become contaminated with PFOA. Until then, the company assumed that PFOA “dissipated” into the air. DuPont should therefore have informed the province of South Holland that this substance could accumulate in the environment, but did not do so. The emission of PFOA was unlawful from that moment on, the judge ruled.

It is not often that a company is held liable for emissions for which it has a permit, says lawyer Michael Klijnstra, who specializes in environmental law and is not involved in the lawsuit. “This ruling underlines that a company cannot sit back and relax once it has a permit. If you withhold material information about the consequences of those emissions, you are in trouble, and you will no longer be covered by your permit.”

This is also an important statement for local residents who are concerned about their environment and their health, says environmental councilor Tanja de Jonge (Dordrecht, GroenLinks). “The door is now open for the next step: compensation and recognition.”

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Local residents during the hearing in Dordrecht of the Provincial Council of South Holland with the management of Chemours about PFAS discharges. The factory in Dordrecht is under fire.” class=”dmt-article-suggestion__image” src=”https://images.nrc.nl/KP-m4CJIUCpUAAfNRLHrh20W8q4=/160×96/smart/filters:no_upscale()/s3/static.nrc.nl/bvhw/files/2023/09/web-0209zatbijpfas2.jpg”/>

Negotiation

The municipalities and the company will enter into negotiations about what damage can and cannot be recovered from Chemours. In any case, a blood test among local residents, as the municipalities wanted, is not included, the judge decided: that was part of the public task of municipalities. Costs for soil research are eligible.

Chemours said in a written response on Wednesday that it wants to “look beyond” the ruling and sit down with municipalities to discuss providing “technical and financial support”. The company is considering setting up a fund “with which the municipalities can carry out activities”.

“I really read in the ruling that Chemours must clean up the pollution,” says councilor De Jonge in response to Chemours’ press release. “But if this is the first help, then it is already a nice change in the relationships as they have been until now.”

In the meantime, the political and legal pressure on the PFAS producer is increasing further. The province tried to tighten Chemours’ permits through the courts earlier this year, but was unsuccessful. The Provincial Council instructed the provincial government of South Holland last week to investigate whether the factory can be closed. The province also reported an illegal discharge of the substance TFA earlier this month.

Citizens are also stirring. A group of a thousand local residents and former employees of the factory are preparing a mass claim. Among other things, they want compensation for their medical costs. And then there is the mass complaint by three thousand people against Chemours executives, led by lawyer Bénédicte Ficq. Wednesday’s ruling could strengthen these cases.

Is the approach not too fragmented?

Environmental lawyer Edward Brans of State Attorney Pels Rijcken, who is assisting the municipalities in the case against Chemours, clearly sees the various cases – of the municipalities, province and local residents – as “separate issues”. “The case of the municipalities focuses on what happened in the past. The matters at provincial level concern the emissions that are currently taking place. The question then arises: what should you tolerate now? What is the state of science? Is it possible to require zero emissions based on available technologies? Criminal law is much more about retaliation. Can you blame the directors?”

A spokesperson for Chemours declined to comment on Wednesday about a possible appeal. The company is waiting for the court to issue the final judgment in November.

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