Environment

DEQ will revoke Chemours’s discharge permit, citing several violations; criminal probe begins

DEQ tried using the carrot to convince Chemours to stop contaminating the drinking water …

For state environmental officials, the latest spill by Chemours was the last straw. The NC Department of Environmental Quality had tried cajoling, cooperating, dangling the carrot instead of brandishing a big stick. But after Chemours covered up an Oct. 6 chemical spill at its Fayetteville Works plant, DEQ announced today that it is moving to permanently revoke the company’s wastewater discharge permit. The reasons, the agency said, were the failure to comply with the permit and to report the spill.

According to a news release issued at 4:20 p.m., DEQ officials also notified Chemours it will suspend its permit to discharge process wastewater from the company’s manufacturing area including the areas where GenX and other fluorinated compounds are produced. The suspension will take effect Nov. 30. Chemours is still required by the state to divert wastewater containing GenX and transport it out-of-state for disposal.

 

… but had to use the stick

The revocation of Chemours’ permit will take effect after the required 60-day notice to Chemours and public participation in the permit process, which will include a comment period and a hearing.

DEQ is referring its probe of the Oct. 6 spill to the State Bureau of Investigation to determine if there is evidence of criminal violations for not reporting the spill as required by law. That spill, which released chemicals that are precursors to GenX, occurred during planned maintenance. State and federal officials learned of the spill only after the EPA’s routine sampling results show a huge spike — a nearly 100-fold increase — in contamination in the plant’s wastewater.

DEQ learned of the results on Nov. 1.

In addition, the company is legally required to notify DEQ within 24 hours of any spill that could compromise human health or the environment. Chemours failed to do so on Oct. 6, a Wednesday.

On Sept. 5, DEQ had sent a letter to Chemours about its previous illegal discharges. That correspondence teed up a partial consent order issued by a Bladen County judge in which DEQ agreed not to suspend the permit for a 60-day review period in exchange for Chemours’s compliance with all requirements, including halting all discharges of perfluorinated chemicals.

But Chemours, Linda Culpepper, DEQ’s interim director of the Division of Water Resources, pointed out in today’s letter, “misrepresentations and inadequate disclosures” have continued during the review period.

“It is unacceptable that Chemours has failed to disclose information required by law, information we need in order to protect the public,” said Michael S. Regan, secretary of the N.C. Department of Environmental Quality “We’re taking action to suspend Chemours’ wastewater permit and moving to permanently revoke it because the company has repeatedly failed to follow the law.”

DEQ will continue to collect and test water samples from the Cape Fear River including at the Chemours outfall.

Two other nearby companies, Kuraray and DuPont, are permitted to treat and discharge wastewater via Chemours’s system. The revocation does not apply to those companies.

Environmental advocates immediately released statements applauding the decision.

“People who are personally affected by the GenX crisis will be relieved to know that North Carolina’s environmental regulators will hold polluters accountable for their actions,” said Erin Carey, the NC Sierra Club’s Coastal Programs Coordinator.

Brian Buzby, executive director of the North Carolina Conservation Network, called for additional funding for DEQ to monitor the state’s waterways, while agreeing the company’s permit must be suspended. “This is the right approach: no polluter is above the law, and dischargers have an obligation not to abuse the waters that support all of us.”

 

Letter November 11-16-17 by Anonymous B0mRtPKjko on Scribd

Environment

A long night ahead in Garysburg: Public hearing on Atlantic Coast Pipeline air permit

This illustration shows the parts of a natural gas compressor station. These stations can leak various pollutants, including the greenhouse gas methane and particulate matter. (Illustration: Courtesy Ohio EPA and Nexus Transmission)

Fifty-six tons of methane — a potent greenhouse gas — entered the air over Northampton County in 2015, and that amount could increase if a compressor station is built there as part of the Atlantic Coast Pipeline.

Co-owned by Dominion Energy and Duke Energy, the controversial $5.5 billion project would pipe natural gas from a fracking operation in West Virginia through Virginia and North Carolina — and possibly South Carolina.

The utilities have applied to the NC Department of Environmental Quality for a permit operate a new compressor station for the pipeline in Pleasant Hill, near the Virginia border. The station will include natural-gas fired compressor turbines, an emergency generator, storage tanks and other equipment. The purpose of the station is to boost pressure in the pipeline to send natural gas farther down the line.

That request prompted DEQ to hold a public hearing tonight at 6 p.m. at Garysburg Town Hall, 504 Old Highway Road. Speakers can register beginning at 5 p.m.

Compressor stations can emit volatile organic compounds, particulate matter, nitrogen oxides, carbon monoxide, sulfur dioxide, greenhouse gases, and small amounts of hazardous air pollutants, such as benzene, acetaldehyde, formaldehyde, toluene, ethyl benzene and xylene.

With just 20,000 residents — 58 percent of them Black — Northampton County nonetheless is home to several polluting industries. Many of them involve the timber sector: paper and pulp mills, and an Enviva wood pellet plant.

Air permits allow industry to emit certain amounts of pollution, based on federal and state regulations.

For example, industrial sources legally emitted over 239,000 tons of carbon dioxide and nearly 100 tons of ultrafine particulate matter, known as PM 2.5, in 2015, according to DEQ’s air emissions inventory database. PM 2.5 is especially harmful because the particles are so small they easily enter and burrow into the lungs, and can cause respiratory illness.

Northampton County industry was responsible for another 48,000 pounds of formaldehyde, 3,232 pounds of benzene, plus dozens more pollutants in 2015, the most recent year for which figures are available.

Environment

Chemours kept chemical spill a secret, faces possible fine from DEQ

Last Wednesday, Nov. 8, Michael Scott, director of the NC DEQ’s Division of Waste Management, delivered some troubling news about GenX contamination in additional private drinking water wells near the Chemours plant. “We have not found the edge of the contamination,” Scott told the Environmental Management Commission.

But even worse news, which Chemours had not disclosed for more than a month, would be announced later the next day. An unreported spill of a chemical precursor to GenX has now prompted state environmental officials to issue a Notice of Violation to Chemours. Depending on the results of DEQ’s investigation, the agency could also fine the company for violating its wastewater discharge permit.

“It is both unlawful and unacceptable for a company to fail to report a chemical spill to the state and public as soon as possible,” said Michael Regan, Secretary for the NC Department of Environmental Quality, in a prepared statement issued this morning. “We will take all appropriate enforcement action to hold Chemours accountable for failing to comply with its permit.”

By state law, Chemours must be provided an opportunity to respond to a notice of violation before a civil penalty can be assessed. DEQ said it will review the company’s response and any additional information the company submits before determining further enforcement.

Chemours did not return calls seeking comment.

Whether a fine will deter Chemours is yet to be seen. A timeline of events over the past month shows that Chemours has flouted several conditions that the DEQ and a Bladen County judge placed on the it in order for it to keep its wastewater discharge permit.

 

The most recent Chemours spill occurred Oct. 6, during planned maintenance at the Fayetteville Works plant. But the company withheld vital information about the spill, acknowledging that it occurred only after the agency questioned the company after receiving alarming wastewater sampling results from the EPA.

The Chemours permit requires that DEQ be notified within 24 hours of any discharge of significant amounts of waste that are abnormal in quantity or characteristic, as well as any non-compliance that potentially threatens public health or the environment.

According to DEQ, concentrations of GenX at the Chemours outfall — the area where discharge leaves the plant — were only 69 parts per trillion on Oct. 5. The next day, they increased to 250 ppt, and at their peak, on Oct. 9, to 3,700 ppt. With a week, the levels had dropped to 380 ppt.

The wastewater is not used for drinking. However, no GenX or similar compounds are supposed to leave the plant, under a partial consent decree between DEQ and the company. Instead contaminated wastewater must be contained and then trucked offsite for incineration.

The spill and its secrecy violate a partial consent order issued by a Bladen County judge on Sept. 8. The order, which DEQ agreed to, allowed Chemours to avoid enforcement action if it complied with several conditions. Under the deal that was struck, DEQ would not revoke the company’s wastewater discharge permit as long as Chemours stopped allowing GenX and other perfluorinated compounds to flow from the plant.

A month later, the spill occurred. Yet Chemours apparently said nothing to DEQ on Oct. 24, two weeks after the spill. That’s when DEQ notified Chemours that it would not suspend the wastewater discharge permit because the company had been cooperative in its compliance.  The agency did say it would “take appropriate steps” if the company failed to meet state demands.

The company said nothing to DEQ in advance of the Science Advisory Board meeting on Oct. 23, where GenX was a topic of discussion. Or the House Select Committee on River Quality meeting on Oct. 26, where GenX was the focus of the agenda. Or the Environmental Management Commission committees on Nov. 8, or the full EMC on Nov. 9, where DEQ officials gave updates on GenX that has now been detected drinking water wells, surface water, groundwater and air.

At least 50 drinking water wells are contaminated with levels of GenX above the provisional health goal of 140 ppt.

Gray’s Creek Elementary School, which is three miles from the Chemours plant, also had levels in its drinking water well, at just over 5 parts per trillion, well below the health goal of 140 ppt. Nonetheless, the school is receiving bottled water from Chemours.

Two lakes — Marsh Wood and Camp Dixie — and the drinking water well at the Hall Park ballfield also contain GenX below the health goal. The ballfield well is used for irrigation, not drinking.

DEQ has since expanded its sampling radius to one and half miles from the Chemours property boundary; it is also arranging “stack tests” — to monitor air emissions from the plant using specialized equipment. The exact mechanism of how GenX is moving from air to groundwater is still unknown. However, DEQ officials believe that GenX is entering the air, and then through atmospheric deposition, entering groundwater through the soil.

Sept. 6State issues Notice of Violation against Chemours based on elevated levels of GenX in monitoring wells on company property
Sept. 8Bladen County Superior Court Judge issues a partial consent order. Under the agreement, DEQ won’t suspend Chemours’s wastewater discharge permit as long as the company prevents any flow of GenX or similar chemical compounds from its Fayetteville Works plant.
Sept. 13—presentPrivate drinking water tests continue to show wells contain concentrations of GenX above the provisional health goal of 140 parts per trillion. The number of affected wells exceeds 50. Another 40-plus wells contain GenX but below the benchmark. Air emissions from the plant are also being tested.
Oct. 6Chemours spills GenX-contaminated wastewater from the plant during maintenance, in violation of the partial consent order.
Oct. 23The newly appointed Science Advisory Board meets about GenX and other emerging contaminants.
Oct. 24DEQ informs Chemours it will not suspend the company’s wastewater discharge permit because the company has complied with the partial consent order.
Oct. 26House Select Committee on River Quality meets to discuss GenX and other emerging contaminants.
Nov. 8–9Environmental Management Commission and its committees meet. Among the agenda items is GenX.
Nov. 9DEQ announces it will take additional enforcement action against Chemours for the unreported spill on Oct. 6.
agriculture, Courts & the Law, Environment

In a setback to Murphy-Brown, hog nuisance suits can go on, federal judge rules

Ham produced by Smithfield, which is part of Murphy-Brown (Photo: Amazon)

This story is part of a larger series on the national pork industry that NC Policy Watch is co-publishing with Environmental Health News. The series, Peak Pig, begins at EHN today.

On Wednesday, Policy Watch will examine the history of nuisance suits, plus swine waste-to energy technologies, and more.

The 26 nuisance lawsuits against hog giant Murphy-Brown can proceed to trial, a federal district court judge ruled last week. While the decision marks a brief victory for the residents living near the industrialized hog farms, the litigation might be the last of its kind in North Carolina.

In his 33-page ruling, Senior US District Court Judge Earl Britt undercut some of Murphy-Brown’s arguments, while allowing others: Britt did seal several pieces of evidence because it purportedly contained confidential business information. And he agreed to hear a motion in December that would separate the cases.

That strategy could make the lawsuits more expensive for the plaintiffs. And should one plaintiff lose, legal precedents might arise in court that could then jeopardize future rulings.

Mark Anderson, attorney with McGuire Woods, which is representing the pork producer, did not return an email seeking comment.

But Britt did set a tone that partially favored the plaintiffs. He discounted Murphy-Brown’s contention that their farms are immune from nuisance litigation under the state’s Right to Farm law. That law essentially shields industrialized livestock operations from nuisance suits if the plaintiffs have “moved to the nuisance”; in other words, precedence generally goes to whoever was there first, the residents or the farm.

In this case, many of the plaintiffs are living on land that has been in their families for generations.

“Their land use had been in existence well before the operations of the subject farms began,” Britt wrote. “The fact that some plaintiffs may have used their land for agricultural purposes in addition to a residence or that other agricultural uses have pre-existed in the locality does not alter the court’s analysis.”

These lawsuits against Murphy-Brown — the nation’s largest pork producer — prompted the creation of House Bill 467. Now law, the controversial measure prohibits plaintiffs who win nuisance suits from being awarded compensatory damages, including money to pay for medical treatment related to a farm’s odor, flies and noise.

Instead, winning plaintiffs can recover only damages that cover the devaluation of their property. Given that their property values could already be decreased because of the proximity to an industrialized farm, that amount of money would likely be negligible in comparison. Plaintiffs can still be awarded punitive damages, but those claims are much harder to prove.

The justification, lawmakers said, was that the number of lawsuits would supposedly financially hobble the billion-dollar agribusiness.

“Industry can’t sustain this,” said Sen. Brent Jackson during a debate on the bill. “Without livestock there would be tumbleweed rolling down city streets.”

Considering the political and financial muscle of Murphy-Brown, that scenario is unlikely.

At one point this year, it was uncertain if the 26 lawsuits could even go on. Under the original version of HB 467, the litigation would have been tossed. That’s because the bill language would have applied the law retroactively, to cases that had already been filed. The suits were filed in 2015.

The retroactive provision threatened the bill’s viability, so it was struck. Nonetheless, earlier this fall Murphy-Brown tried to halt the lawsuits by arguing that the state legislature intended to include the retroactive language, but didn’t. Britt’s ruling doesn’t address that motion specifically, but by allowing the cases to go to trial, he appears to discount it.

Britt’s decision also undercuts some state lawmakers’ arguments that the courts needed clarity from the legislature. “North Carolina law is not clear on these kinds of nuisance issues,” said State Rep. Jimmy Dixon during a committee debate.

“Judge Britt could deduce from existing precedent” the legal remedies available for the plaintiffs,” said Will Hendrick, staff attorney for the NC Pure Farms Pure Waters Campaign, this week. “He didn’t need guidance.”

Judge Britt will hold a hearing on several motions on Dec. 4, at the federal courthouse in Raleigh.

 

Hog Order Britt Nov by Anonymous B0mRtPKjko on Scribd

Environment

DEQ confirms van der Vaart, Evan on “investigatory leave” — apparently with pay

The email was brief, just a sentence-long, and sent to the media shortly before 9 last night: “DEQ employees Donald van der Vaart and John Evans have been placed on investigatory leave.”

The statement was attributed to NC Department Environmental Quality Secretary Michael Regan and came from the agency’s communications director, Jamie Kritzer. It was prompted by an Policy Watch story yesterday that reported van der Vaart nor Evans, former top officials at DEQ, had been inexplicably absent for work and without a definite return date.

Van der Vaart and Evans have worked as section chiefs in the Division of Air Quality since the first quarter of this year. That’s when van der Vaart demoted himself and Evans– both political appointees under former Gov. Pat McCrory. to avoid being fired by the new administration.

No reason was given for their placement on leave, but both men had openly rebuked current leadership’s environmental stance by publishing an anti-regulatory op-ed in a national law journal; meanwhile van der Vaart accepted an appointment to the EPA’s revamped and anti-regulatory Science Advisory Board, which DEQ leadership also opposed.

According to the state’s online disciplinary handbook, investigative leave “temporarily removes an employee from work status” but does not constitute a disciplinary action. However, the information during the investigation may be the basis of disciplinary action.

Presumably then, van der Vaart, who earns more than $98,000 a year, and Evans, whose annual salary is nearly $93,000, are being paid while on investigative leave.

There are four reasons to place an employee on investigatory leave, according to the handbook,

  • To investigate allegations of performance or conduct deficiencies that would constitute just cause for disciplinary action;
  • To provide time within which to schedule and conduct a pre-disciplinary conference;
  • To avoid disruption of the work place and/or to protect the safety of persons or property;
  • To facilitate a management directed referral or fitness for duty evaluation to ensure the employee’s safety and the safety of others and to obtain medical information regarding the employee’s fitness to perform his or her essential job functions.

Investigatory leave can last no longer than 30 days without written approval of the State Human Resources Director, for a maximum of 60 days. At the end of the leave period, an agency must place an employee on active work status or take disciplinary action.