Chemours’s lawyers fight back against DEQ; let’s parse the arguments

Chemours’s attorneys have accused the NC Department of Environmental Quality of disregarding “even the most basic rudiments of fair play and process,” when it required the company to stop discharging Nafion into the Cape Fear River.

Travis Fain at WRAL reported Chemours’s response and posted the letter yesterday evening.

In the letter dated Sept. 8, Chemours claimed DEQ didn’t have the authority to issue a cease-and-desist order over Nafion, which the agency and the EPA recently detected in the river as part of its GenX investigation. That order, issued on Sept 5, states that the agency will consider suspending the company’s wastewater discharge permit if it doesn’t stop discharging the compound.

Suspension of that permit would essentially shut down the plant.

Chemours to @NCDEQ: Not playing fair Click To Tweet

Chemours contends there is no technical or scientific evidence that the discharges of “trace level” discharges of Nafion into waterways present a public health emergency — and that the order is not justified.

It is true that few publicly available health studies have been conducted on Nafion or GenX; state health officials were able to get just two — one of them proprietary — on GenX from the EPA.

But DuPont, the parent company of Chemours, has not always been forthcoming about the toxicity of its products. In the case of C8, a precursor and chemical cousin to GenX, DuPont discharged that compound into the Ohio River and other waterways in West Virginia, even though it had in-house health studies showing its toxicity to people.

Meanwhile, many people exposed to C8 developed cancer even though DuPont claimed it was safe. Only through a 2005 class-action lawsuit were those health studies revealed — studies key to DuPont losing the $343 million suit.

The Chemours letter also said that DEQ and the EPA  have known the company has been discharging Nafion into surface waters since 2002; Chemours said it again disclosed that information in a scientific paper circulated to DEQ in 2015.

The letter did not contain supporting documents for the allegation. However, Chemours does have a history of providing information on some of its products to DEQ, albeit some documentation has been either incomplete or lacking context.

According to DEQ documents, DuPont met in August 2010 with agency staff to discuss its phase-out of C8 by 2015– a requirement of a federal consent order emanating from the class action suit. The replacement: GenX.

The compound is chemically very similar to C8.

“DuPont’s planned environmental exposure control technologies will reduce the potential for environmental release and exposure,” of GenX, DEQ minutes from the meeting read.

We now know that Chemours’s technologies to control the release of GenX either failed or were not implemented until this year.

Chemours’s attorney’s said the company stopped discharging GenX in June, “at a very substantial expense.” However, technically the company did not fully halt it until July. That’s when the company notified DEQ in-house monitoring showed higher than expected levels of GenX in its discharge. DEQ inspectors found other places in the plant that were responsible for the effluent; the company shut them down.

Chemours claims it's acted in 'utmost good faith' w @NCDEQ Click To Tweet

And as NCPW reported yesterday, even though GenX is no longer entering the water from the Chemours plant, the compound is thought to be entering the air. Based on groundwater monitoring tests, DEQ believes GenX is turning into vapor at the plant, then falling back onto the soil, and in turn, into the groundwater. The agency is basing this theory on the fact that one of the plant’s groundwater monitoring wells tested high for GenX — even though it’s uphill from the facility.

DEQ has since issued a notice of violation to Chemours because levels of perfluorinated  compounds exceeded state groundwater standards.

Issued last December, the facility’s air permit   mentions the perfluoronated compound HFPO, although not GenX, specifically. (In scientific literature, GenX is signified by HFPO-DA.) Emissions of HFPO are supposed to be controlled to toxic air pollutant standards by the use of scrubbers. The emissions are monitored by Chemours, which reports its results to the state. It’s common practice for facilities to self-monitor and self-report.

DEQ Assistant Secretary Sheila Holman said the agency will begin independent air monitoring as soon as specialized equipment arrives.

The letter concludes by asking DEQ to “put aside litigation” and engage in “open transparent dialogue.”

It’s worth noting that Michael Johnson of Chemours was invited to answer questions at an Environmental Review Commission meeting earlier this month. At that meeting, Sen. Trudy Wade said that on advice of a company attorney, neither Johnson nor anyone from Chemours would attend. Both Michael Regan and Mandy Cohen, secretaries for the environment and health and humans services, respectively, did attend. Had Johnson showed up, he would have been seated next to them.


9-8-17-Chem-DEQ-Letter-002 by LisaSorg on Scribd

One Comment

  1. richard manyes

    September 17, 2017 at 6:45 am

    I am glad to see NC Policy Watch recognize some of the inconsistencies that have plagued this debacle. There are a few more. Remember, just days after learning about GenX, Regan says Chemours did not violate a thing. And that they had disclosed adequately all the information needed under the Clean Water Act. Cooper claimed EPA regulations were needed for NC to act, and that a consent decree signed with EPA allowed Chemours to discharge GenX. Every bit of this was false (except that DuPont did disclose in 2002 – but then failed to do so when they were able to quantify the discharges later).

    Interestingly, DEQ’s complaint agreed that everything they had said previously was false. Either unfathomable incompetency or an all to fathomable level of corruption.

    Then at 5:30 one Friday afternoon, the company and DEQ cut a sweetheart deal that appears to exonerate Chemours for all past Federal crimes – boom – done. Without stakeholder (including CFPUA) involvement. The Secretary of stakeholder meetings ignored the stakeholders.

    Now, throughout all of this, the DHHS sec has not been idle – she has actively ignored the cancer effects of Genx and brushed aside any additional risk the discovery of admittedly unknown compounds that are sister compounds to PFOA and Genx might present. I think that was Chemours’ point – why threaten to shut Nafion down when the EPA’s discovery of the new compounds did not, in the eyes of Mandy Cohen, move the needle? The answer is not – oh yeah, that makes sense, the answer is – why is Cooper’s administration being so cozy with Chemours?

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