GenX crisis didn’t have to happen: EPA Inspector General finds agency’s regional office knew nothing of a 2009 consent order

The GenX crisis, which contaminated the drinking water for tens of thousands of people in southeastern North Carolina, could have been averted had the EPA simply done its job.

The EPA Inspector General has found that a communication breakdown within the agency allowed DuPont, later Chemours, to discharge the toxic compound GenX into the Cape Fear River for eight years, in violation of the terms of a consent order.

The report, issued this morning, explained that a 2009 consent order between DuPont and EPA headquarters required the company to capture 99% of all air emissions and water discharges of GenX. The company failed to comply with the requirements, but EPA inspectors were none the wiser.

That’s because the consent order was never approved or reviewed by the EPA’s Office of Enforcement and Compliance Assurance.

Nor did EPA officials tell their counterparts at the Region 4 offices in Atlanta, who, had they known of the consent order, would have been required to inspect the Fayetteville Works plant to ensure it was complying with the terms.

Instead, those at the EPA who did know about the consent order used information provided by DuPont/Chemours to track and review the company’s compliance.

The EPA undertook no independent, on-site compliance monitoring for GenX at the Fayetteville Works facility until 2017, when first, the Wilmington Star-News, and then other statewide media began covering the issue.

By that time, the company had discharged millions of gallons of GenX into the river, contaminating drinking water supplies downstream in Wilmington and in Brunswick County. The company also failed to adequately control its air emissions of GenX, as laid out in the consent order with the EPA. When the compound left the plant through the smokestacks, it later fell to the ground and contaminated groundwater, crops and private drinking water wells over 70 square miles.

GenX is a type of perfluorinated compound, also known as PFAS. It replaced two previous compounds, PFOA and PFOS, which have been linked to cancer, ulcerative colitis, thyroid disease, high cholesterol, high blood pressure during pregnancy, among other serious health conditions. GenX was supposed to be less toxic, but recent scientific studies have shown it poses similar risks.

DuPont had petitioned the EPA in 2008 to begin making two new GenX chemicals. Known as a “premanufacture notice,” it is required by federal law for companies either manufacturing or importing new compounds. In 2009, the EPA’s Office of Chemical Safety and Pollution Prevention allowed DuPont to make these chemicals as long as the company complied with the terms of a consent order.

A consent order was necessary because the information about GenX that DuPont provided to the EPA was deemed “insufficient to permit a reasoned evaluation of the health and environmental effects of the chemicals.”

Without more data, the EPA determined “the uncontrolled manufacture, import, processing, distribution in commerce, use, and disposal of the chemicals may present an unreasonable risk to health or the environment.”

It also found that DuPont would produced GenX “in substantial quantities and will likely enter the environment in substantial quantities, and there may be significant or substantial human exposure to the substance.”

The consent order also required the company to provide workers with personal protective equipment, such as respiratory and skin protection, and to test for human health or environmental effects from exposure GenX. Testing protocols and results were to be sent to the EPA.

In February 2019, the NC Department of Environmental Quality and Cape Fear River Watch entered into a separate consent order with Chemours requiring the company to capture 99% of its GenX air emissions. Previously, DEQ had forced the company to stop discharging the compound into the Cape Fear under threat of revoking its environmental permits.

Chemours was also required to submit a Corrective Action Plan detailing how it would clean up the contamination. Earlier this year, DEQ Secretary Michael Regan determined the plan was insufficient and ordered the company to revise it.

Also in February 2019, the EPA issued a Notice of Violation to Chemours related to two facilities using the GenX manufacturing process: Fayetteville Works and the Washington Works facility in West Virginia.

However, that Notice of Violation involved Chemours’s failure to file certain reports and paperwork regarding the manufacture and import of the chemicals; it did not include any violations of the 2009 Consent Order at the Fayetteville Works facility.

The EPA did say that it was continuing to investigate the company and could “find additional violations.”

In September 2019, the EPA announced that investigation was continuing.

In today’s report, the Inspector General recommended that the EPA’s Office of Enforcement and Compliance Assurance consistently review and approve consent orders that are under its purview.

The EPA responded that PFAS actions are “a top priority” but since it didn’t explicitly state that enforcement officials would meet the report’s recommendations, the Inspector General determined the issue is still unresolved.

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