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Judge Grants Order For Expedited Discovery In Chemours, GenX Lawsuits

By Christina Haley O'Neal, posted May 29, 2018
A federal judge has ordered The Chemours Co. to allow outside testing of potentially contaminated water to comply with a discovery process involving several lawsuits against the company filed in U.S. District Court.

On Friday, U.S. District Court Judge James Dever III granted the plaintiffs’ joint motion for expedited discovery. The order affects a proposed class action case filed on behalf of North Carolina residents, as well as two other lawsuits filed by Brunswick County and Cape Fear Public Utility Authority (CFPUA).

Lawyers have previously said that different firms representing various lawsuits against Chemours are working together in the discovery process. The unregulated chemical GenX, and other related compounds, have been linked to Chemours' operations at the Fayetteville Works site in Bladen County. Tha facility is located near the Cape Fear River, about 100 miles upstream from Wilmington.

According to a news release by Cohen Milstein Sellers & Toll, a law firm representing the proposed class action case, the order would “allow outside testing of potentially contaminated water as part of the discovery process in a lawsuit that names Chemours as the defendant.”

Ted Leopold of Cohen Milstein was appointed in January by the federal judge as co-lead counsel in the case, along with Stephen Morrissey of Susman Godfrey LLP.

“The first step in holding Chemours accountable to the people of North Carolina is holding them accountable to the legal process,” said Leopold in the release. “We’re pleased that the judge is ensuring accurate and transparent testing of drinking water and putting a stop to Chemours’ stonewalling.”

Chemours did not immediately respond to requests for comment on the judge's order.

The lawsuit, which has not yet been certified as a class action case by a federal judge, was consolidated in U.S. District Court in the Eastern District of North Carolina on Jan. 31. It represents several named plaintiffs in the case, while representing all North Carolina residents potentially affected by Chemours' operations.

The lawsuit alleges that “Chemours disregarded internal test results while illegally dumping hazardous chemicals into the river and then misled government regulators about its conduct. Researchers have revealed that GenX is far more toxic than originally thought, may even be airborne and is known to cause cancer and other life-threatening illnesses. Nonetheless, Chemours is pressing regulators to raise the allowable amount of GenX in the Cape Fear River from the current limit of 140 ppt,” according to the release.
According to the order, the plaintiffs are seeking "limited" access to Chemours’ facility in Bladen County. The order grants this access and states that "Chemours shall make the Fayetteville works facility available to plaintiffs to gather water samples from five individual wastewater streams at the facility during normal production on three separate occasions between now and July 13, 2018." 

CFPUA and Brunswick County are specifically noted in the order for seeking expedited discovery to incorporate appropriate remediation technology into the ongoing redesign of their water treatment systems to “remove fluoropollutants … to ensure safe drinking water for local residents.”

Earlier this month, Brunswick County's Board of Commissioners approved construction of a $99 million low-pressure reverse osmosis plant, with final design work slated to begin in September.

CFPUA has previously said the purpose of its legal action against Chemours is to recover related damages and costs, such as an upgrade to the Sweeney Water Treatment Plant.

CFPUA's board of directors on May 9 voted to authorize the utility to negotiate a design contract for treatment enhancements at the Sweeney Water Treatment Plant to reduce per-fluorinated compounds (PFCs), a class of chemicals that includes GenX, in the finished water. CFPUA declined Tuesday to comment on the judge's order.

“The judge has ordered that the plaintiffs can test wastewater at the Chemours facility before the start of traditional discovery. This is needed so that the public water providers in designing treatment can know the full identity of chemicals that will need to be treated,” said Scott Summy, shareholder of Dallas-based Baron & Budd, the firm that is representing Brunswick County in its lawsuit against Chemours, in an email Tuesday.

The firm is also representing private well owners in North Carolina, as well as Wrightsville Beach and the Lower Cape Fear Water & Sewer Authority.

In the order, the county and utility alleged that the redesign would be less effective unless they know “precisely what chemicals must be removed from untreated water.”

The parties are ordered to meet and submit a proposed protective order concerning the expedited discovery no later than June 1.

“It’s another important step in the process to learn more about the chemicals before their dilution -- to know what has gone into the water stream before millions and millions of gallons of water dilutes the chemical – so we will know what chemicals and types of chemicals are merged with the water that goes into the Cape Fear River,” Leopold said Tuesday of the expedited discovery.

According to Leopold, the next step in the process would be the testing. Cohen Milstein is also waiting for a federal judge's ruling in Chemours' motion to dismiss the proposed class action case, he said. Should the case continue, he said, all plaintiffs involved would begin to work on a discovery schedule.
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