Federal lawsuit alleges Chemours engaged in “willful, wanton and reckless conduct” over C8 and GenX discharges

Areas shaded in blue receive water from the Cape Fear River, which is treated by the Sweeney plant in Wilmington. A new contaminant, GenX, has been found in drinking water supplies.
Areas in green rely on groundwater. Closer to the plant, in Fayetteville, elevated levels of GenX have been detected in private drinking water wells. (Map: Cape Fear Public Utility Authority)

The Cape Fear Public Utility Authority is accusing Chemours/DuPont of “willful and wanton” conduct over the company’s secret discharge of GenX and other pollutants into the Cape Fear River. Those chemical compounds wound up in the drinking water of several communities near the Fayetteville Works plant and farther downstream, including Wilmington.

The allegation was one of several in a complaint filed this afternoon in federal court against the company. The utility is asking the court for a jury trial, which given widespread concern about the contamination, Chemours is likely to oppose.

The utility is basing its action on Chemours/DuPont’s alleged “nuisance, negligence, trespass, harm to riparian rights, failure to warn, and negligent manufacture (products liability).” The complaint also alleges Chemours and DuPont “recklessly disregarded the rights and safety of others.”

The filing contains several points regarding what DuPont knew concerning the health effects of GenX and similar compounds like C8, which has been linked to cancer. The company had begun studying the health effects of GenX no later than 1963, according to the court documents.

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FERC approves Atlantic Coast Pipeline; lawsuits are likely

In a Friday night surprise, the Federal Energy Regulatory Commission voted 2-1 to approve the $5.5 billion Atlantic Coast Pipeline, 160 miles of which will run through eastern North Carolina. However, the project still has yet to receive its required state permits and it is likely to face legal challenges from environmental advocates.

FERC “completely abdicated its responsibility,” said Hope Taylor, executive director of Clean Water for North Carolina. “It based its decision on cyclical reasoning and was highly dependent on accepting unconditionally the information provided by the utilities.”

The 159-page order, which included an extensive dissent from Commissioner Cheryl LaFleur, contains many puzzling if not contradictory conclusions. The decision acknowledged “the project will result in some adverse and significant environmental impacts,” including to the detriment of more than 100 endangered, threatened or at-risk species over the entire 600-mile route, “but that these impacts will be reduced to acceptable levels,” as long as contractors meet the 73 conditions — which are not enforceable — as laid out in the ruling.

FERC completely abdicated its responsibility, says @cwfnc Click To Tweet

Duke CEO Lynn Good issued a statement Friday 10:38 p.m. calling FERC’s approval is an important milestone and a critical step forward for the Atlantic Coast Pipeline to deliver the benefits of affordable, clean natural gas and affirms the project will be built with minimal impacts to the environment.”

In North Carolina, state regulators and environmental groups are concerned about the project’s effect on wetlands and waterways, particularly the Neuse River. Atlantic Coast Pipeline LLC, which is primarily owned by Dominion Energy and Duke Energy, plan to use an invasive method of installing the pipeline across the river, called a cofferdam. To put it in human medical terms, a cofferdam is like having an open incision rather than laparoscopic surgery.

An example of cyclical reasoning is FERC’s contention that ACP, LLC is new to the pipeline marketplace “with no existing customers.” While the ACP is Duke and Dominion’s first foray into the pipeline world, these utilities do have existing customers — their electric ratepayers, who will foot the bill for the project, plus the 14 percent rate of return.

In her prepared statement, Good said that “natural gas from the pipeline will increase consumer savings, enhance reliability, enable more renewable energy and provide a powerful engine for statewide economic development and job growth.”

The details of how those purported benefits, particularly regarding renewable energy will be realized is unclear. Opponents have argued that natural gas can be shipped via existing pipelines, and that the additional supply is not needed. Duke and Dominion have countered that 96 percent of the natural gas is spoken for. However, these are not outside parties — industry, for example — clamoring for natural gas, but the utilities themselves. FERC acknowledged that five of the six “shippers,” as they are known, are affiliated with the utilities. But FERC determined that the incestuous relationship doesn’t require the commission to examine the agreements to evaluate the need for the project.

FERC also denied commenters’ requests for an evidentiary trial-type hearing on the project, saying that the issues “have been adequately argued, and a determination can be made on the basis of the existing record in this proceeding.” This is likely a response to repeated protests at its hearings. FERC has enacted rules to keep demonstrators at bay; it also has sequestered commenters from the media while making their statements.

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DEQ names head of science advisory board, will tackle emerging contaminants in drinking water

Jamie Bartram, founding director of The Water Institute at UNC Chapel Hill. He is the new chairman of the Secretaries’ Science Advisory Board. (Photo: UNC Chapel Hill)

A distinguished UNC professor who has written about the Flint water crisis and other drinking water contamination issues, is the chairman of the newly formed state Secretaries’ Science Advisory Board, the Department of Environmental Quality announced today.

Jamie Bartram, a professor and founding director of The Water Institute at UNC Chapel Hill, will lead the board. Its first charge is to study ways to better protect public health and the environment from new or emerging chemicals of concern, including GenX and hexavalent chromium.

The Water Institute is a division of UNC’s Gillings School of Global Public Health. Institute researchers study and report on pressing water quality issues, not just in the U.S., but worldwide.

It has conducted important research in North Carolina, including a 2014 analysis that showed racial disparities in access to municipal water and sewer services. For example, in Wake County, Black communities are significantly less likely than white communities to be connected to a municipal water supply system.

The science panel is appointed by DEQ Secretary Michael Regan and Department of Health and Human Services Secretary Mandy Cohen. It will meet at least six times each year.

The panel has several duties:

  • perform or recommend reviews and evaluations of contaminants released to the environment;
  • consult on potential DEQ regulations about those contaminants;
  • assist both agencies in identifying contaminants of emerging concern
  • help determine whether the contaminants should be studied further;
  • assist the secretaries in providing expertise to evaluate the human and environmental impacts of exposure to hazardous contaminants;
  • and provide input to DHHS as the agency establishes health goals for emerging contaminants.

Earlier this year, Gov. Roy Cooper expanded the scope of the panel, formerly known as Secretary’s Science Advisory Board on Toxic Air Pollutants.

DEQ and the DHHS have yet to announce membership of the board, which will meet Oct. 23. The meetings will be public, although the place and time have also not been announced.

agriculture, Environment

Facing lawsuit, NC Department of Agriculture agrees to provide public records without exorbitant fees

Steven Troxler, commissioner of the NC Department of Agriculture and Consumer Services. Under pressure, the department has changed its records policy to make it easier for people to access public information. (Photo: NCDACS)

Under the McCrory administration, it was pain-staking, if not impossible to pry public records from the hands of state agencies; requests for the taxpayer-funded information languished for months, even years.

Yet since Gov. Cooper took office, most of these departments have been more responsive and forthcoming with providing public taxpayer-funded information — with one notable exception: the NC Department of Agriculture.

Now the agriculture department has agreed to change its records policy, after reaching a settlement with the Southern Environmental Law Center and the Waterkeeper Alliance.

In the agreement announced last week, the department will update its public records policy to stop charging fees for the inspection of public records, according to the SELC.

(These inspections don’t incur copying costs. Groups or individuals occasionally bring their own portable scanners to preserve the records on their personal computers.)

Headed by Commissioner Steve Troxler, an anti-regulatory ally of McCrory, the department proposed charging the Waterkeeper Alliance $4,000 merely to inspect public records related to damage from Hurricane Matthew on hog and poultry farms.

As part of the agreement, the department will make that information available for free to the Waterkeeper Alliance and to reimburse the group for the costs of litigation.

Finally, under the settlement terms, the department will donate $2,000 to the Sunshine Center of the North Carolina Open Government Coalition – a nonpartisan group that advocates for public access to government activity, records and meetings.

The alliance had made the request to both the Department of Agriculture and the Department of Environmental Quality in January. DEQ produced the records without charge in March.




DEQ nixes yet another part of the Atlantic Coast Pipeline proposal

The NC Department of Environmental Quality has rejected the Atlantic Coast Pipeline’s erosion and sediment control plan, dealing yet another setback to the $5.5 billion project.

In a letter dated Sept. 26, the Division of Energy, Mineral and Land Resources told the ACP owners it had disapproved the plan, primarily because there was so much missing information.

The ACP is co-owned by Dominion Energy, Duke Energy, Southeast Energy Company and Piedmont Natural Gas.

The utilities have until Oct. 11 to submit a revised plan for consideration. If they want to contest DEQ’s disapproval, they must request an administrative hearing by Nov. 25.

ACP’s plan, according to the letter, failed to provide detailed construction sequence and erosion control methods, plus measures required to protect all public and private property from construction damage. DEQ lists the shortcomings of the plan in 17 separate points over three pages.

A specific concern for DEQ is the potential damage pipeline construction would have on the Neuse River. The plan, which originally called for open trenching, has been changed to a method known as a cofferdam. A cofferdam is an enclosure placed in a river, for example, that allows the water to be pumped out. However, the Neuse River is a habitat for many threatened or at-risk species, including the Neuse River waterdog, and draining the water could kill them.

The utilities have claimed that they would try to collect any key species and relocate them — where, though, they didn’t say. But in the process of collecting and moving the species from their habitat, they acknowledged that some of them could be inadvertently killed.

In September, DEQ delayed by three months its decision on whether to grant a 401 water quality and buffer permit to the owners of the ACP. In a letter to the utilities, state environmental officials laid out in two pages myriad missing information, some of it very basic: construction drawings, erosion control plans, a calculation of cumulative impacts and stream restoration plans.


ACP_E&SC Plan RRO Disapproval Ltr 092617 by LisaSorg on Scribd