NORTH CAROLINA EX REL. STEIN v. EIDP, INC., 2023 NCBC 18

STATE OF NORTH CAROLINA
CUMBERLAND COUNTY
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
20 CVS 5612
STATE OF NORTH CAROLINA, ex rel.
JOSHUA H. STEIN, ATTORNEY
GENERAL,
Plaintiff,
v.
EIDP, INC., f/k/a E.I. DU PONT DE
NEMOURS AND COMPANY; THE
CHEMOURS COMPANY; THE
CHEMOURS COMPANY FC, LLC;
CORTEVA, INC.; DUPONT DE
NEMOURS, INC.; and BUSINESS
ENTITIES 1-10,
Defendants.1
ORDER AND OPINION ON
MOTIONS TO DISMISS
1. 	THIS MATTER is before the Court on two motions to dismiss filed by
Defendants on 29 January 2021 pursuant to Rule 12(b)(6) of the North Carolina Rules
of Civil Procedure (the “Rule(s)”).
2. 	For the reasons set forth herein, the Court DENIES the Motions.
Rhine Law Firm, PC by Martin Ramey, Joel R. Rhine, and Ruth
Sheehan; North Carolina Department of Justice by Marc Bernstein and
Daniel S. Hirschman; Taft Stettinius & Hollister, LLP by Robert A.
Bilott and David J. Butler; Douglas & London, PC by Gary J. Douglas,
Tate J. Kunkle, Michael A. London, and Rebecca Newman; 	Levin
Papantonio Rafferty by Wesley A. Bowden; and Kelley Drye & Warren,
LLP by Melissa Byroade, Kenneth Corley, Steven Humphreys, William
J. Jackson, Elizabeth Krasnow, Lauren H. Shah, and David Zalman, for
Plaintiff State of North Carolina, ex rel. Joshua H. Stein, Attorney
General.
1 Subsequent to the filing of this action, E.I. du Pont de Nemours and Company changed its
name to EIDP, Inc. 	The Court orally ruled on 13 February 2023 during a hearing on the
Motions that the caption of pleadings subsequently filed in this action should show EIDP,
Inc. as a party defendant.
North Carolina ex rel. Stein v. EIDP, Inc., 2023 NCBC 18.

Ellis & Winters LLP by Scottie F. Lee, Jonathan D. Sasser, Thomas H.
Segars, and Steven Scoggan; Bradley Arant Boult Cummings LLP by C.
Bailey King, Jr. and Robert R. Marcus; McCarter & English, LLP by
Lanny Steven Kurzweil, Connor Phalon, Ryan Richman, and Candee
Wilde; and Bartlit Beck, LLP by Katherine L.I. Hacker, John S. Phillips,
and Katharine A. Roin, for Defendant EIDP, Inc.
Robinson, Bradshaw & Hinson by Steven R. DeGeorge; Ellis & Winters
LLP by Scottie F. Lee, Jonathan D. Sasser, Thomas H. Segars, and
Steven Scoggan; McCarter & English, LLP by Lanny Steven Kurzweil,
Connor Phalon, Ryan Richman, and Candee Wilde; Arnold & Porter
Kaye Scholer LLP by Joel M. Gross, Allison Rumsey, and Brian D. Israel;
and Norris McLaughlin, P.A. by Martha N. Donovan and Margaret
Raymond-Flood, for Defendant The Chemours Company.
Robinson, Bradshaw & Hinson by Steven R. DeGeorge; Ellis & Winters
LLP by Scottie F. Lee, Jonathan D. Sasser, Thomas H. Segars, and
Steven Scoggan; McCarter & English, LLP by Lanny Steven Kurzweil,
Connor Phalon, Ryan Richman, and Candee Wilde; and Arnold & Porter
Kaye Scholer LLP by Joel M. Gross, Allison Rumsey, and Brian D. Israel,
for Defendant The Chemours Company FC, LLC.
Ellis & Winters LLP by Jonathan D. Sasser and Thomas H. Segars;
Bradley Arant Boult Cummings LLP by C. Bailey King, Jr. and Robert
R. Marcus; and Bartlit Beck, LLP by Katherine L.I. Hacker, John S.
Phillips, and Katharine A. Roin, for Defendants Corteva, Inc. and
DuPont de Nemours, Inc.
Robinson, Judge.
I. 	INTRODUCTION
3. 	This action arises out of the alleged contamination of North Carolina’s air,
land, and water through certain Defendants’ operations at a chemical manufacturing
facility known as Fayetteville Works located in Bladen and Cumberland Counties in
North Carolina. 	(Orig. Compl. ¶¶ 1, 77, ECF No. 2 [“Compl.”].) 	Plaintiff, the State
of North Carolina (“Plaintiff”), alleges that certain Defendants have caused this
contamination by using per- and polyfluoroalkyl substances (“PFAS”), which “resist

biodegradation, persist in the environment, and accumulate in people and other
living organisms.” (Compl. ¶ 1.) Plaintiff alleges that “vast quantities of PFAS” have
been discharged by Defendants through their operation of Fayetteville Works into
the air, water, sediments, and soils of North Carolina and PFAS “have had and
continue to have profoundly negative impacts on the State.” (Compl. ¶¶ 1, 3–4.)
4. 	Plaintiff brings this suit in its parens patriae capacity to protect the health,
safety, security, and well-being of its residents and its natural resources. 	(Compl.
¶ 15.) 	Plaintiff also brings this suit in its capacity as an owner of real property.
(Compl. ¶ 15.) Finally, Plaintiff brings fraudulent transfer claims in its capacity as
a creditor. (Compl. ¶ 15.)
II. 	FACTUAL BACKGROUND
5. 	The Court does not make findings of fact on motions brought pursuant to
Rule 12(b)(6) but instead recites only those facts included in the Complaint that are
relevant to the Court’s determination of the motions.
A. 	The Parties
6. 	Defendant EIDP, Inc., formerly known as E.I. du Pont de Nemours and
Company (“EIDP”), is a Delaware corporation with its principal place of business in
Delaware. EIDP conducts business throughout the United States, including in North
Carolina. (Compl. ¶ 16.)
7. 	Defendant 	The 	Chemours 	Company 	(“Chemours”) 	is 	a 	Delaware
corporation 	with 	its 	principal 	place 	of 	business 	in 	Delaware. 	(Compl. 	¶ 17.)
Defendant Chemours FC, LLC (“Chemours FC” and with Chemours referred to

collectively as the “Chemours Defendants”) is a Delaware limited liability company
with its principal place of business in Delaware. 	(Compl. ¶ 19.) 	Chemours FC is a
subsidiary of Chemours. (Compl. ¶ 19.)
8. 	Defendants Corteva, Inc. (“Corteva”) and Du Pont de Nemours, Inc. (“New
DuPont”) are Delaware corporations. (Compl. ¶¶ 20–21.)
9. 	In 1969, EIDP purchased property near Fayetteville, North Carolina, and
began a manufacturing process at its “Fayetteville Works”, a chemical manufacturing
facility located within the purchased property, producing PFAS. (Compl. ¶¶ 77–79.)
PFAS are chemicals that allegedly pose significant risks to human health and the
environment because they resist biodegradation, persist in the environment, and
accumulate in people and other living organisms. (Compl. ¶ 1.) EIDP manufactured
PFAS at Fayetteville Works beginning in 1980. (Compl. ¶ 82.) EIDP allegedly knew
about the dangers posed by PFAS no later than 1984, (Compl. ¶¶ 61–72), and
notwithstanding its knowledge of the dangers posed, EIDP continued to manufacture
PFAS at Fayetteville Works. (Compl. ¶¶ 61– 72, 82.)
10. 	On 	3 	May 	2001, 	EIDP 	submitted 	a 	National 	Pollutant 	Discharge
Elimination System (“NPDES”) permit renewal application to North Carolina’s
Division 	of 	Environmental 	Quality 	(“DEQ”), 	stating 	that 	it 	intended 	to 	begin
manufacturing PFOA (a type of PFAS) at Fayetteville Works. (Compl. ¶ 89.) During
the application process, EIDP represented to the DEQ that: (1) PFOA does not pose
a health concern to humans or animals at levels present in the workplace or
environment; (2) EIDP used PFOA for 40 years with no observed health effects on

workers; and (3) PFOA is neither a known developmental toxin nor a known
carcinogen. (Compl. ¶ 89.)
11. 	On 26 August 2010, representatives from EIDP met with DEQ staff
regarding 	EIDP’s 	anticipated 	use 	of 	GenX—a 	different 	PFAS 	compound—at
Fayetteville Works as a replacement for PFOA. (Compl. ¶ 97.) EIDP indicated that
the GenX produced would not be discharged outside the Fayetteville Works property,
and that wastewater generated would be shipped off-site for disposal. (Compl. ¶ 100.)
On 29 April 2011, EIDP submitted a NPDES permit renewal application confirming
that “no process wastewater from [Fayetteville Works] is discharged into . . . the
Cape Fear River.” (Compl. ¶ 100.)
12. 	Following a 2016 study identifying the presence of GenX and other PFAS
in the Cape Fear River, Chemours informed the DEQ that, for decades, it and EIDP
had discharged GenX and other PFAS produced at Fayetteville Works into the Cape
Fear River. (Compl. ¶ 103.)
B. 	The Restructuring of EIDP
13. 	EIDP has allegedly engaged in a multi-step complex process to restructure
its business which rendered EIDP unable to pay billions of dollars of liabilities related
to 	PFAS 	contamination, 	including 	liabilities 	arising 	out 	of 	the 	operation 	of
Fayetteville Works. (Compl. ¶¶ 130, 139–43, 150–52.) These corporate transactions,
which 	began 	in 	July 	2015 	and 	spanned 	approximately 	four 	years, 	included
consolidations, spinoffs, and the creation of new entities. It is alleged that, as a result

of this process, assets and liabilities were reallocated so that they could not be
reached by the State and other creditors. (Compl. ¶¶ 145–47, 154–57, 177–86.)
III. 	PROCEDURAL HISTORY
14. 	The Court sets forth herein only those portions of the procedural history
relevant to its determination of the Motions.
15. 	Plaintiff initiated this action on 13 October 2020 with the filing of the
Original Complaint (“Complaint”). (See Compl.)
16. 	On 29 January 2021, Corteva and New DuPont filed their Consolidated
Motion to Dismiss (“Corteva’s Motion”), (Consolid. Mot. Dismiss, ECF No. 76), and
brief in support. 	(Br. Supp. Consolid. Mot. Dismiss, ECF No. 77 [“Corteva Br.”].)
That same day, EIDP, Chemours, and Chemours FC filed the Motion to Dismiss
Plaintiff’s Complaint for Failure to State a Claim Upon Which Relief Can be Granted
(“EIDP’s Motion” and together with Corteva’s Motion, the “Motions”), (ECF No. 78),
and brief in support. (Defs.’ Br. Supp. Mot. Dismiss, ECF No. 79 [“EIDP Br.”].) On
18 February 2021, Plaintiff filed its brief in opposition to Corteva’s Motion. 	(Mem.
Opp. Defs.’ Mot. Dismiss, ECF No. 89 [“Pl.’s Br. Opp. Corteva”].) 	Corteva and New
DuPont filed their reply on 1 March 2021. (ECF No. 96 [“Corteva’s Reply”].) On 22
March 2021, Plaintiff filed its brief in opposition to EIDP’s Motion. (Mem. Opp. Defs.’
Mot. Dismiss, ECF No. 106 [“Pl.’s Opp. EIDP”].) EIDP, Chemours, and Chemours FC
filed their reply brief on 15 April 2021. 	(ECF No. 130 [“EIDP Reply”].) 	Plaintiff
thereafter filed a supplemental brief in opposition to Corteva’s Motion on 21 May

2021. (ECF No. 136.) On 4 June 2021, Corteva and New DuPont filed a supplemental
brief in support of Corteva’s Motion. (ECF No. 145.)
17. 	The Court held a hearing on the Motions on 29 June 2021. 	(See ECF
No. 135.) 	On 	17 	August 	2021, 	the 	Court 	entered 	its 	Order 	and 	Opinion 	on
Consolidated 	Motion 	to 	Dismiss 	by 	Defendants 	Corteva, 	Inc. 	and 	DuPont 	de
Nemours, Inc. (the “17 August Order”). (ECF No. 154 [“17 Aug. Or.”].) The 17 August
Order limited its ruling to the issue of whether the Court could properly exercise
personal jurisdiction over Corteva and New DuPont pursuant to Rule 12(b)(2) and
noted that the Court would later enter an order and opinion on the remainder of the
motion. 	(17 Aug. Or. ¶ 2 n.2.) 	The Court concluded that, by imputing EIDP’s
liabilities to Corteva and New DuPont, it could properly exercise personal jurisdiction
over them. (17 Aug. Or. ¶ 59.)
18. 	On 16 September 2021, Corteva and New DuPont timely filed their notice
of appeal to the Supreme Court of North Carolina from the Court’s 17 August Order.
(Not. Appeal, ECF No. 156.) Subsequently, the Court stayed all proceedings in this
case, including discovery, until final resolution of the appeal. (Am. Stay Or., ECF No.
161.)
19. 	On appeal, the Supreme Court of North Carolina affirmed the 17 August
Order and remanded this case for additional proceedings. 	State ex rel. Stein v. E.I.
du Pont de Nemours & Co., 382 N.C. 549, 565 (2022).

20. 	Following remand from the Supreme Court, on 13 February 2023, the Court
again heard argument on the Rule 12(b)(6) aspects of the Motions. (See ECF No. 168.)
The Motions are ripe for resolution.
IV. 	LEGAL STANDARD
21. 	“On a Rule 12(b)(6) motion to dismiss, the question is whether, as a matter
of law, the allegations of the complaint, treated as true, state a claim upon which
relief can be granted.” 	Fischer Inv. Capital, Inc. v. Catawba Dev. Corp., 200 N.C.
App. 644, 649 (2009). “[T]he complaint is to be liberally construed, and the trial court
should not dismiss the complaint unless it appears beyond doubt that the plaintiff
could prove no set of facts in support of his claim which would entitle him to relief.”
State ex rel. Cooper v. Ridgeway Brands Mfg., LLC, 362 N.C. 431, 444 (2008).
22. 	“[W]hen ruling on a Rule 12(b)(6) motion, a court may properly consider
documents which are the subject of a plaintiff’s complaint and to which the complaint
specifically refers.” 	Oberlin Capital, L.P. v. Slavin, 147 N.C. App. 52, 60 (2001).
Furthermore, a court “can reject allegations that are contradicted by the documents
attached, specifically referred to, or incorporated by reference in the complaint.”
Moch v. A.M. Pappas & Assocs., LLC, 251 N.C. App. 198, 206 (2016) (quoting Laster
v. Francis, 199 N.C. App. 572, 577 (2009)). “The question before us is whether, as a
matter of law, the allegations of the complaint, treated as true, are sufficient to state
a claim upon which relief may be granted under some legal theory, whether properly
labeled or not.” Gant v. NCNB Nat. Bank, 94 N.C. App. 198, 199 (1989).

V. 	ANALYSIS
23. 	Defendants2 move to dismiss the Complaint in its entirety, arguing that
four 	claims—negligence, 	trespass, 	public 	nuisance, 	and 	fraud—are 	barred 	by
application of res judicata, the relevant statutes of limitations, and otherwise fail to
state a claim upon which relief may be granted pursuant to Rule 12(b)(6).
A. 	Res Judicata
24. 	Defendants request that the Court dismiss Plaintiff’s first four claims—
negligence, 	trespass, 	public 	nuisance, 	and 	fraud—because 	they 	are 	barred 	by
application of res judicata. 	Under the doctrine of res judicata, “a final judgment on
the merits in one action precludes a second suit based on the same cause of action
between the same parties or their privies.” 	Whitacre P’ship v. BioSignia, Inc., 358
N.C. 1, 15 (2004) (citation omitted). 	“For res judicata to apply, a party must show
that the previous suit resulted in a final judgment on the merits, that the same cause
of action is involved, and that both the party asserting res judicata and the party
against whom res judicata is asserted were either parties or stand in privity with
parties.” 	State ex rel. Tucker v. Frinzi, 344 N.C. 411, 413–14 (1996) (quotation
omitted). 	Further, “[t]he doctrine prevents the relitigation of all matters . . . that
2 Defendants Corteva and New DuPont’s brief does not make independent arguments for
dismissal pursuant to Rule 12(b)(6), but instead relies on the arguments made by EIDP,
Chemours, and Chemours FC. (See Corteva Br. 1 n.1.) Accordingly, the Court considers the
arguments in the brief supporting EIDP’s Motion as being made by all Defendants. Counsel
are reminded that, effective 1 July 2022, after the Motions were filed, the Business Court
Rules (“BCRs”) were amended to prohibit incorporation by reference in briefing. 	(See
BCR 7.8.)

were or should have been adjudicated in the prior action.” Whitacre P’ship, 358 N.C.
at 15 (quotation omitted).
25. 	Defendants contend that the core factual allegations of the present action
were copied from a 2017 suit filed by DEQ against Chemours FC in Bladen County
Superior Court, No. 17 CVS 580 (“Bladen Action”). 	(EIDP Br. 7, 9.) 	In the Bladen
Action, the DEQ alleged that Chemours FC began discharging PFAS into the Cape
Fear River in the early 1980s and failed to timely disclose such discharges to North
Carolina’s Division of Water Resources. (ODP Br. 3–4.) Defendants further contend
that Plaintiff could have and should have brought its negligence, trespass, public
nuisance and fraud claims in the Bladen Action, and in failing to do so, such claims
must be dismissed against both Chemours FC and Chemours. 	(EIDP Br. 7, 9.) 	In
making this argument, Defendants rely on the consent order approved and entered
by the Superior Court in the Bladen Action on 25 February 2019 (the “Consent
Order”) requiring Chemours FC to abate future discharges of PFAS from Fayetteville
Works, to remediate past discharges, and to pay monetary damages. 	(See 17 CVS
580 Consent Or. ¶¶ 10, 12, ECF No. 79.3 [“Consent Or.”].)
26. 	At the Rule 12(b)(6) stage, “the movant has the burden of demonstrating
that the action should be dismissed[.]” Neier v. State, 151 N.C. App. 228, 233 (2002).
Defendants contend that the Consent Order operates as a final judgment on the
merits for purposes of res judicata. The Court disagrees.
27. 	Upon review of the Consent Order, the Court concludes that Defendants
are unable to establish an essential element of res judicata—that there was a final

judgment on the merits in the Bladen Action. 	Paragraph 41 of the Consent Order
provides that “[t]his Consent Order . . . is not, and shall not be construed to be, a
determination on the merits of any of the factual allegations or legal claims advanced
by any party in this action[.]” (Consent Or. ¶ 41.) The plain language of the Consent
Order demonstrates that it was not a determination on the merits, and without such
a determination, res judicata cannot apply. 	State ex rel. Tucker v. Frinzi, 344 N.C.
411, 413–14 (1996) (“For res judicata to apply, a party must show that the previous
suit resulted in a final judgment on the merits[.]”). 	Accordingly, the Motions are
DENIED to the extent they seek dismissal of Plaintiff’s claims for negligence,
trespass, public nuisance, and fraud through application of res judicata.
B. 	Statutes of Limitations
28. 	Defendants next argue that Plaintiff’s claims for negligence, trespass,
public nuisance, and fraud are barred by the relevant statutes of limitations.
Negligence, trespass, nuisance, and fraud claims are each subject generally to a
three-year statute of limitations. N.C.G.S. §§ 1-52(3), (9), (16); see Wilson v. McLeod
Oil Co., 327 N.C. 491, 511 (1990) (“[An] action for nuisance is governed by the same
statute of limitations as [an] action for trespass.”).
29. 	Plaintiff contends that the doctrine of nullum tempus prevents the relevant
statutes of limitations from running against it. 	Our Supreme Court has described
the doctrine of nullum tempus stating that:
nullum tempus survives in North Carolina and applies to exempt the State
and its political subdivisions from the running of time limitations unless
the pertinent statute expressly includes the State. . . . Nullum tempus does
not, however, apply in every case in which the State is a party. If the

function at issue is governmental, time limitations do not run against the
State or its subdivisions unless the statute at issue expressly includes the
State. 	If the function is proprietary, time limitations do run against the
State and its subdivisions unless the statute at issue expressly excludes the
State.
Rowan Cty. Bd. of Educ. v. U.S. Gypsum Co., 332 N.C. 1, 8–9 (1992) (emphasis in
original). 	It is undisputed that the relevant statutes of limitations do not expressly
include or exclude the State. Therefore, nullum tempus will apply to effectively toll
an otherwise applicable statute of limitations if the State is acting in its governmental
capacity.
30. 	Defendants contend that Plaintiff performs a wholly proprietary function
in the case at bar. 	(EIDP Br. 8.) 	The State acts in a proprietary capacity when
engaged in a “pecuniary activity or activity of a type historically performed by private
individuals.” 	Rowan Cty. Bd. of Educ., 332 N.C. at 10. 	In Defendants’ view, the
present action is precisely the kind that private individuals have brought and
continue to bring against Defendants throughout North Carolina. 	Defendants
further argue that Tillery v. Whiteville Lumber Co., 172 N.C. 296, 297–98 (1916)
(holding that State ownership of timber rights is a proprietary function), and Town
of Littleton v. Layne Heavy Civil, Inc., 261 N.C. App. 88 (2018) (holding that operation
and maintenance of a sewer system is a proprietary function), support its contention
that the Plaintiff’s actions are proprietary in nature.
31. 	Plaintiff asserts that it acts in its governmental capacity “by seeking to
promote and protect the welfare of North Carolina citizens and natural resources
from contamination emanating from Fayetteville Works.” (Pl.’s Opp. EIDP 18.)

32. 	Our Supreme Court has held that the State acts in its governmental
capacity when “promoting or protecting the health, safety, security, or general
welfare of its citizens[.]” Rhodes v. Asheville, 230 N.C. 134, 137 (1949). When a state
actor sues to recover costs for abatement of a potential public health risk, it likewise
does so in its governmental capacity. See Rowan Cty Bd. of Educ., 332 N.C. at 11.
33. 	For purposes of the Motions, the Court concludes, based on its reading of
the Complaint, that Plaintiff acts as parens patriae in seeking payment of all past
and future costs to “investigate, assess, remediate, restore, and remedy” the effects
of PFAS contamination on the health of North Carolina’s citizens and natural
resources. (Compl. ¶ 12.) Unlike the State-plaintiffs in Tillery and Town of Littleton,
Plaintiff brings this suit to recover costs associated with abatement of PFAS
contamination, allegedly a significant risk to public health.
34. 	Further, our Supreme Court has held that the discharge of pollutants into
a state’s soil, water and air injures a state’s quasi-sovereign interests, and that when
acting as parens patriae, “the State has an interest independent of and behind the
titles of its citizens.” C.D. Spangler Constr. Co. v. Industrial Crankshaft & Eng’g Co.,
326 N.C. 133, 145 (1990) (quoting Georgia v. Tennessee Copper Co., 206 U.S. 230, 237
(1907)).
35. 	Private individuals may bring, and have brought, trespass claims against
some of the Defendants due to PFAS contamination on their private property.
However, the Complaint makes clear that Plaintiff brings this action not only as a
landowner, 	but 	as 	trustee 	charged 	with 	“conserv[ing] 	and 	protect[ing] 	[North

Carolina’s] lands and waters[,]” and limiting pollution of the same, for the benefit of
all North Carolinians. N.C. Const. art. XIV, § 5. As trustee of North Carolina’s lands
and waters, both public and private, the State has brought a suit that it alone is
entitled to bring. See Fabrikant v. Currituck Cty, 174 N.C. App. 30, 42 (2005) (“[O]nly
the State, acting in its sovereign capacity, may assert rights in land by means of the
public trust doctrine.”).
36. 	For the foregoing reasons, the Court concludes that Plaintiff is acting in its
governmental capacity. The relevant statutes of limitations are therefore effectively
tolled by the doctrine of nullum tempus. 	Accordingly, the Motions are DENIED to
the extent they seek dismissal of claims under the applicable statutes of limitations.3
C. 	Negligence
37. 	Next, the Court considers Plaintiff’s claim for negligence against EIDP,
Chemours, and Chemours FC (the “PFAS Defendants”). “To state a claim for common
law negligence, a plaintiff must allege: (1) a legal duty; (2) a breach thereof; and (3)
injury proximately caused by the breach.” 	Stein v. Asheville City Bd. of Educ., 360
N.C. 321, 328 (2006). PFAS Defendants contend they owe no common law duties to
Plaintiff arising from the manufacture of PFAS, and dismissal is warranted on that
basis.
3 As a result of its conclusion that the State acts, at least to some extent, as a sovereign in
bringing its claims, the Motions must be denied. Defendants argue, however, that, even if a
portion of the State’s claims are timely because of the operation of nullum tempus, the Court
should nonetheless dismiss as time-barred any claim against Defendants for trespass by
allegedly polluting the State’s real property. The Court declines to do so, at least at this stage
of the proceeding based on the limited record before it, without prejudice to Defendants’
renewal of this argument at the summary judgment stage.

38. 	Plaintiff alleges that PFAS Defendants, as manufacturers of PFAS, have
positive duties to: (1) take adequate precautions to prevent PFAS from contaminating
the soil, water, and air; (2) remove PFAS they have discharged from the environment;
(3) warn authorities and the public of the presence and potential threats posed by
PFAS; and (4) handle, treat, store and dispose of PFAS in a way that would not
endanger human health and the environment. 	(Compl. ¶ 202.) 	PFAS Defendants
argue 	that 	their 	duties 	as 	producers 	of 	PFAS 	arise 	under 	North 	Carolina’s
environmental control statutes—not under common law. 	See, e.g., N.C.G.S. § 143-
211 et seq. (EIDP Br. 15.)
39. 	Plaintiff responds that the environmental control statutes at issue here do
not abrogate common law claims for negligence, citing Biddix v. Henredon Furniture
Indus., 76 N.C. App. 30, 34 (1985). 	In Biddix, the Court of Appeals rejected the
contention 	that 	the 	North 	Carolina 	Clean 	Water 	Act 	of 	1967 	(“CWA”) 	as
amended, N.C.G.S. §§ 143-211–215.9, abolished common law civil actions, concluding
that, because the CWA “does not specifically abrogate these common law civil
actions[,]” such actions may be maintained. Id. at 40 (emphasis added).
40. 	It is uncontroverted that the relevant environmental control statutes do not
specifically abrogate common law actions. 	See, e.g., N.C.G.S. §§ 143-215.6A–6C.
Plaintiff, therefore, may bring a properly-pled claim for common law negligence. “The
law imposes upon every person who enters upon an active course of conduct the
positive duty to exercise ordinary care to protect others from harm, and calls a

violation of that duty negligence.” 	Council v. Dickerson’s, Inc., 233 N.C. 472, 474
(1951).
41. 	The Complaint adequately alleges that PFAS Defendants did not exercise
ordinary care in manufacturing and discharging PFAS. 	The Motions are therefore
DENIED to the extent they seek dismissal of Plaintiff’s negligence claim.4
D. 	Public Nuisance
42. 	PFAS 	Defendants 	next 	seek 	dismissal 	of 	Plaintiff’s 	claim 	for 	public
nuisance. Without support from North Carolina law, PFAS Defendants characterize
nuisance as merely a “tort of last resort” which has no place where, as here, there
exists a statutory and regulatory scheme governing emissions. (EIDP Br. 20.)
43. 	The Court is not persuaded by Defendants’ argument to disregard the
established law of this State. 	North Carolina recognizes claims for public nuisance
where “acts or conditions are subversive of public order, decency, or morals, or
constitute an obstruction of public rights.” 	State v. Everhardt, 203 N.C. 610, 617
(1932). “A public nuisance affects the local community generally and its maintenance
constitutes an offense against the State.” Id.
44. 	The Court has already determined, in section V. C., supra, that the relevant
statutory scheme does not prohibit common law causes of action from being brought
here. 	The Court determines that, at this preliminary stage, Plaintiff has met its
burden 	by 	alleging 	that 	the 	PFAS 	contamination 	from 	Fayetteville 	Works 	is
4 The Court does not reach PFAS Defendants’ arguments regarding negligence per se because
Plaintiff states that it “does not assert [negligence per se] as a separate claim[.]” (Pl.’s Opp.
EIDP 21–22.)

subversive of public order and affects the citizens of North Carolina at large.
Accordingly, to the extent they seek dismissal of Plaintiff’s claim for public nuisance,
the Motions are DENIED.
E. 	Trespass
45. 	The 	Court 	next 	considers 	Plaintiff’s 	trespass 	claim 	against 	PFAS
Defendants. “A claim of trespass requires: (1) possession of the property by plaintiff
when the alleged trespass was committed; (2) an unauthorized entry by defendant;
and 	(3) 	damage 	to 	plaintiff.” 	Fordham 	v. 	Eason, 	351 	N.C. 	151, 	153 	(1999).
Defendants argue that Plaintiff does not have an exclusive possessory interest in all
of the resources alleged, mandating dismissal of the claim. (EIDP Br. 20.) The cases
Defendants cite in support, Hayes v. Williamson-Brown Land & Lumber Co., 180 N.C.
252 (1920), and Simmons v. Defiance Box Co., 153 N.C. 257 (1910), are inapposite, as
they discuss exclusive possession in the context of an adverse possessor. 	See, e.g,
Jernigan v. Herring, 179 N.C. App. 390, 394 (2006) (discussing exclusivity as an
element of adverse possession).
46. 	Plaintiff correctly asserts that exclusive possession is not a requirement for
trespass claims in North Carolina. 	See Godette v. Godette, 146 N.C. App. 737, 740
(2001) (“It is well-established that one tenant in common may maintain an action for
trespass upon the lands.”). 	Plaintiff has alleged, pursuant to the public trust
doctrine, that it possesses and holds in trust certain land, water, and air for the
benefit of the public. 	(Compl. ¶¶ 7–8.) 	See Town of Nags Head v. Richardson, 260
N.C. App. 325, 334 (2018). Use by North Carolina’s citizens of the land, water, and

air held in trust by the State for that purpose does not, as a matter of law, deprive
Plaintiff of its sovereign possession. 	Plaintiff has sufficiently alleged trespass, and
the Motions are DENIED to the extent they seek dismissal of that claim.
F. 	Fraudulent Concealment
47. 	Next, 	Defendants 	seek 	to 	dismiss 	Plaintiff’s 	claim 	of 	fraudulent
concealment.5 Defendants contend that PFAS Defendants had no duty to disclose the
information they allegedly concealed. (EIDP Br. 23.)
48. 	A fraudulent concealment claim requires a showing that the defendant “had
a duty to disclose material information.” Lawrence v. UMLIC-Five Corp., 2007 NCBC
LEXIS 20, at *8 (N.C. Super. Ct. June 18, 2007) (citing Griffin v. Wheeler-Leonard &
Co., 290 N.C. 185, 198 (1976)). A duty to disclose arises when one party “has taken
affirmative steps to conceal material facts from the other[.]” 	Harton v. Harton, 81
N.C. App. 295, 297–98 (1986).
49. 	The Complaint alleges that in 2001, as part of the NPDES permitting
process, EIDP made affirmative representations to the State regarding the health
effects of PFAS which EIDP knew were false at the time they were made and upon
which the State relied in issuing permits. (Compl. ¶¶ 89, 63–67, 225.) 	Specifically,
Plaintiff alleges that:
On May 3, 2001, Old DuPont submitted a National Pollutant Discharge
Elimination System (“NPDES”) permit renewal application to North
Carolina’s 	Division 	of 	Water 	Quality, 	subsequently 	renamed 	the
Division of Water Resources (the “DWR”), a division of DEQ, stating that
5 In their briefs, Defendants only address dismissal of Plaintiff’s allegations regarding
fraudulent concealment, even though the Complaint alleges both fraud and fraudulent
concealment. (See Compl. ¶¶ 224–230.) 	The Court addresses only the arguments actually
raised by Defendants.

it intended to begin manufacturing PFOA at the Fayetteville Works.
During the application process, Old DuPont represented that: (1) PFOA
does not pose a health concern to humans or animals at levels present
in the workplace or environment; (2) Old DuPont had used PFOA for 40
years with no observed health effects on workers; and (3) PFOA is
neither a known developmental toxin nor a known carcinogen. 	Old
DuPont knew or should have known its representations were false.
(Compl. ¶ 89.)
50. 	The 	Complaint 	further 	represents 	that, 	on 	26 	August 	2010, 	EIDP
representatives met with DEQ staff regarding the company’s anticipated use of GenX
technology at the Fayetteville Works property as a replacement for PFOA. Plaintiff
alleges EIDP represented to the DEQ that “GenX would be produced in a closed-loop
system that would not result in the discharge of those compounds outside the
Fayetteville Works, particularly not directly into the Cape Fear River” and that
“wastewater generated from the manufacture of GenX would be collected and shipped
off-site for disposal, and therefore, this wastewater would not be discharged into the
Fayetteville Works’ wastewater treatment plant or into the Cape Fear River.”
(Compl. ¶¶ 97–99.)
51. 	Both the statements made in the permit renewal application and those
allegedly made to the DEQ constitute affirmative actions by EIDP allegedly taken to
conceal material facts from the State. 	These actions give rise to a duty to disclose.
Accordingly, at the Rule 12(b)(6) stage, Plaintiff has sufficiently alleged such a duty.
52. 	Defendants next argue that Plaintiff has not alleged reasonable reliance.
(EIDP Br. 24–25.) 	To support allegations of fraud, an injured party’s reliance on a
misrepresentation or concealment must be reasonable. 	Reliance is not reasonable

when the party “could have discovered the truth of the matter through reasonable
diligence, but failed to investigate.” 	Sullivan v. Mebane Packaging Grp., 158 N.C.
App. 19, 26 (2003). 	However, according to the Complaint, the studies that put
Defendants on notice that PFAS threatened human health were internal studies to
which Plaintiff did not have access until at least 2016, when Chemours provided them
to the DEQ after news became public that the Cape Fear River was contaminated
with PFAS. (Compl. ¶¶ 103–04.) The Court determines that Plaintiff has sufficiently
alleged reasonable reliance.
53. 	Defendants next argue that the Complaint fails to allege fraudulent
concealment with particularity because the Complaint groups the PFAS Defendants
together despite each PFAS Defendant having responsibility for the Fayetteville
Works facility at different times. (EIDP Br. 25.) The Court disagrees. The Complaint
expressly details the ownership of Fayetteville Works and the PFAS product lines
produced there, and it alleges with specificity the transfer of ownership between each
of the PFAS Defendants. (Compl. ¶¶ 9, 81, 157–59, 162.) The Court determines that
the allegations are sufficiently particular to state a claim.
54. 	Accordingly, the Motions are DENIED to the extent they seek dismissal of
Plaintiff’s claim for fraudulent concealment.
G. 	Fraudulent Transfer
55. 	Last, the Court considers Plaintiff’s claims for actual and constructive
fraudulent 	transfer 	against 	EIDP, 	Chemours, 	Corteva, 	and 	New 	DuPont.
Defendants’ sole argument for dismissal is that Plaintiff’s fraudulent transfer claims

have no independent basis for liability and are wholly dependent on the viability of
Plaintiff’s claims for negligence, trespass, nuisance, and fraud. 	(EIDP Br. 26.) 	The
Court has allowed Plaintiff’s claims for negligence, trespass, nuisance and fraud to
proceed. As a result, Defendants’ argument is unavailing, and Plaintiff’s fraudulent
transfer claims may proceed as well. 	Accordingly, the Motions are DENIED to the
extent they seek dismissal of Plaintiff’s claims for fraudulent transfer.
VI. 	CONCLUSION
56. 	For the foregoing reasons, the Motions are hereby DENIED.
SO ORDERED, this the 2nd day of March, 2023.
/s/ Michael L. Robinson
Michael L. Robinson
Special Superior Court Judge
for Complex Business Cases