The news sounded significant, if not groundbreaking: The state’s 2019 state consent order with Chemours was strengthened yesterday to force the company to stop 99% of GenX and PFAS contamination from entering the Cape Fear River, a drinking water source for hundreds of thousands of people downstream.
“This is a huge win for the Cape Fear River and the people who depend on it. This plan will ensure that contaminated groundwater, streams, and runoff no longer pollute the river and don’t reach communities downstream,” said Kemp Burdette, Cape Fear Riverkeeper in a prepared statement. “Along with a reduction of PFAS in air emissions from the facility and a complete elimination of process water discharges into the river that were part of the earlier consent order, these commitments get us closer to a goal of a clean Cape Fear.”
Similarly, Chemours and the NC Department of Environmental Quality heralded the news as a major advance in protecting the drinking water supply from these toxic compounds.
“We believe this commitment is significant and meaningful; it aligns to our Chemours Corporate Responsibility Commitments to reduce the emissions of PFAS by at least 99% at all Chemours manufacturing sites worldwide,” said Chemours spokeswoman Lisa Randall. “These commitments have established Chemours as a global leader in the area of responsible manufacturing within our industry.”
But it’s not news. Chemours has been required to meet that 99% threshold for 11 years, according to a previous consent order between the EPA and Chemours’s former parent company, DuPont. Yet that legal agreement, dated January 2009, has never been enforced by the EPA. As Policy Watch reported in May, that’s because the federal consent order was never approved or reviewed by the EPA’s Office of Enforcement and Compliance Assurance. Neither state environmental regulators nor EPA Region 4 officials even knew of the consent order until 2017, according to an EPA Inspector General report.
In fact, DEQ and the Southern Environmental Law Center, which represented Cape Fear River Watch, negotiated with Chemours to amend to the state consent order and strengthened it based on that 11-year-old document.
The language in 2009 consent order with the EPA is clear: It required DuPont, now Chemours to “recover and capture (destroy) or recycle” GenX “from all the process wastewater effluent streams and air emissions at an overall efficiency of 99% and distribute only to those customers that achieve this percentage of efficiency or destruction.”
The 2019 consent order with the state and Cape Fear River Watch addressed not just the manufacture of GenX but its byproducts, prohibiting them from being discharged into the river. That order also required Chemours to provide alternative water supplies for households with contaminated wells.
The new, amended consent order covers groundwater contamination, seeps and runoff.
Had Chemours met the terms of the original EPA agreement, though, much of this contamination and additional legal action could have been avoided.
A Chemours spokeswoman could not be reached for comment about the distinctions, if any, between the federal and state consent orders. DEQ, which held a public meeting last night about the proposed amendment and other updates, is expected to comment later today after it reviews the 2009 EPA agreement.
A 30-day public comment period will be held on the agreement before it is submitted to the Bladen County Superior Court for approval.
At last night’s virtual public meeting, Assistant DEQ Secretary Sheila Holman outlined the proposed new requirements. Groundwater entering four streams near the Fayetteville Works plant is a major source of contamination to the Cape Fear River. The interim measures to filter PFAS at an efficiency of at least 80% from the first of the four seeps will go into effect starting by mid-November, with all four completed by April 2021.
To permanently reduce the amount of PFAS and GenX entering the Cape Fear, Chemours must build a 1.5-mile underground barrier wall and install a groundwater extraction system that will remove at least 99% of PFAS to be completed by March 2023. If Chemours fails to meet these requirements, it faces fines ranging from $5,000 per day to $20,000 per week.
Contaminated groundwater has in turn polluted private drinking water wells with GenX above the recommended health goal for at least 2,800 households, according to DEQ figures. Chemours must offer those homes bottled water and eventually install filtration system or pay for an alternate water source.
Removing existing PFAS and GenX from the groundwater will be expensive. Earlier this year, Chemours submitted a Corrective Action Plan to clean up contaminated groundwater, but acknowledged that it would be too costly to comply with the state’s groundwater rules because the pollution is so widespread. Contamination has been detected in private drinking water wells 12 miles from the plant, and is estimated to encompass 70 square miles. DEQ rejected the Corrective Action Plan; Chemours has not yet resubmitted a second version.
Despite the existing state consent order, which penalized Chemours $12 million, the company has continued to violate the law. DEQ cited the company in June for dumping potentially contaminated dirt and tree roots in an unlined landfill. Chemours has denied wrongdoing, and Division of Waste Management Director Michael Scott said the agency is reviewing the company’s response and still could assess a fine.
Meanwhile, there are indications that other contamination, so far from unknown sources, is entering the river.
Holman told meeting attendees that the agency had received reports of “unnatural foam” occurring in a creek near Blossom Road in the Gray’s Creek watershed, which is upstream of Chemours.
The foam contained PFOS, which has since been phased out of manufacturing. But known as a “forever chemical,” it lingers in the environment for decades, if not hundreds of years.
“We’re investigating all possible sources,” Holman said. “Avoid the foam and if you do come into contact with it, wash thoroughly.”
AG’s office hires heavyweights to pursue Chemours
The proposed amendment was just one of several legal actions involving Chemours and PFAS that were announced this week, but it’s still unclear whether the timing was coincidental or part of a larger strategy against the company. On Monday, Attorney General Josh Stein announced his office was also launching an investigation into PFAS contamination, even beyond than the Cape Fear River.
The purpose of the probe, his office said, is “to understand the extent of the damages to North Carolina’s natural resources … and to further evaluate contamination elsewhere in the surface waters, soils, and groundwater.”
Stein also said his office would “not hesitate to bring legal action against any polluters if that’s what it takes to keep the people of North Carolina safe.”
At the time, Stein’s office did not disclose that it had also hired an outside law firm Kelley Drye & Warren to assist in the investigation. WRAL was the first to report it.
The firm has eight offices in the US; two of its attorneys, Bill Jackson and John Gilmour specialize in PFAS litigation.
Attorneys general in several other states — New Hampshire, Vermont, New Jersey as well as Guam, have hired them to represent them in lawsuits against Chemours, DuPont and 3M.
Stein’s office has not disclosed details of how the outside lawyers will be paid. But in New Jersey, the fees are based on a tier system, according to the publication Legal Newsline. The fee is based on the amount of money the state recovers in court or in a settlement, ranging from 10% to 22.5%.
Guam officials have struck a similar deal with the firm.
A spokeswoman for Stein’s office, Laura Brewer, told Policy Watch that the attorney general could not provide “specifics of the investigation and how it might play out. I can tell you we are looking at PFAS in our drinking water and determining whether there are any further appropriate actions to hold accountable those responsible for damaging our State’s natural resources.”
It’s still unclear on how long the investigation will take. “It’s always difficult to put a time estimate on an investigation,” Brewer said. “It’ll take as long as it takes to conduct the work.”