Environment

Feds drop criminal case involving Chemours, Clean Water Act

The Cape Fear River is contaminated GenX, which originates from the Chemours plant in northern Bladen County, 100 miles away. (Photo: Lisa Sorg)

Chemours will not be criminally charged in a Clean Water Act case involving its Fayetteville Works plant, according to the company and federal officials.

Don Connelly, spokesman  for US Attorney’s Office for the Eastern District of North Carolina said the charges were dropped after a grand jury investigation. Since grand jury deliberations are confidential, the spokesman could not comment on or release documents related to the case.

Chemours noted the case had been dropped in its first-quarter Securities and Exchange Commission filings. The company “responded to grand jury subpoenas, produced witnesses before a grand jury and for interviews with government investigators and attorneys,” the filings read. then in March, the US Attorney notified the company that “after an extensive review of the law and all the facts, it declined to pursue any criminal action against Chemours and is closing its file.”

Corporations are seldom criminally penalized for environmental violations. (The most recent case in North Carolina was in 2015, when Duke Energy paid a $68 million criminal fine for the Dan River coal ash disaster.)

Not only are there few corporate criminal penalties, but the number of criminal investigations is also low. According to the EPA, it opened fewer than 200 criminal investigations last year. While up from the previous two years, that figure is still half of its peak of nearly 400 in 2009. The declines also occurred during the Obama administration.

In its annual report for 2019, the EPA doesn’t list the number of cases that were declined for prosecution. But data from the Transactional Records Access and Clearinghouse, at Syracuse University, shows that from 1986 to 2016, there was a consistent pattern of prosecutors declining to pursue criminal environmental violators.

(Graph: TRAC, Syracuse University)

It’s unclear what specific allegations prompted the Chemours case, but for decades, it and former parent company DuPont, discharged millions of gallons of wastewater contaminated with GenX, a type of perfluorinated compound, into the Cape Fear River.

GenX was supposed to be a less harmful replacement for PFOA and PFOS, which have been connected to serious human health effects, including several types of cancer, high blood pressure during pregnancy, low birth weight, ulcerative colitis and high cholesterol. But researchers have found GenX poses similar health risks

The river is a major drinking water supply for tens of thousands of residents in New Hanover and Brunswick counties, including Wilmington, where high levels of GenX were detected in treated tap water. Those levels have decreased since state environmental regulators required Chemours to stop its discharge or they would revoke its discharge permit. A consent order among the state, Cape Fear River Watch and Chemours established additional requirements to halt or decrease contaminant releases.

In its SEC filings, Chemours estimated it would cost roughly $200 million to clean up environment damage from the Fayetteville plant. But a full cleanup is likely impossible, at least from a technological standpoint. GenX and other types of perfluorinated compounds, collectively known as PFAS, persist in the environment for tens if, not hundreds of years, earning them the term, “forever chemicals.”

In its recent Corrective Action Plan filed with the NC Department of Environmental Quality, Chemours said it could not afford to remove the pollutants from the 70 square miles where the groundwater, drinking water and surface water are contaminated. DEQ, which received hundreds of public comments decrying the plan, deemed the company’s proposal inadequate and sent it back for revisions.

Last year the EPA also cited Chemours alleging that in 2017 it had violated the federal Toxic Substances Control Act. According to the citation, the company failed to report and report uses of certain PFAS — the commercial names are redacted — as well as control emissions and discharges of GenX.

That case has not yet been resolved. Chemours has denied the allegations. In the SEC filings, the company said “management does not believe that a [financial] loss is probable related to the matters in the Notice of Violation.”

However, Chemours still faces hundreds of civil lawsuits related GenX and PFAS, including several in North Carolina. In other states, Chemours also inherited litigation from DuPont in relation to allegations that former employees became sick because of benzene and asbestos exposures while working in the plants.

Chemours reported gross profits of $298 million for the first quarter of 2020, which ended in March. However, its comprehensive after-tax income showed a loss of $4 million.

agriculture, Environment

DEQ lists progress on environmental justice, swine farms; critics say enforcement essential

Map: DEQ

After initial results showed elevated levels of contaminants in Duplin County waterways commonly found at industrialized swine farms, the NC Department of Environmental Quality is continuing its water quality investigation to find the source.

Policy Watch previously reported that in the Stockinghead Creek watershed — with 40 industrialized hog farms permitted to grow 94,068 swine, another 1.3 million chickens and turkeys, plus cattle —contained fecal coliform levels well above state regulations.

High levels of nitrogen, phosphorus and ammonia were also detected, but there are no state or federal numeric standards for nitrogen, phosphorus and ammonia in surface water.

DEQ is working with academic researchers to identify genetic markers for feces, as well as molecular tracers for the sources of nitrogen.

The investigation is part of a civil rights settlement that went into effect in May 2018. Under the terms of the agreement, DEQ agreed to improve regulatory oversight and better protect neighboring communities form the health and environmental impacts of industrialized swine farms.

As a condition of the settlement, DEQ was also required to submit a report about its progress on fulfilling its environmental justice obligations.

The EPA has identified potential health hazards related to CAFOS, although it has said there is significant uncertainty associated with levels of exposure. Academic scientists have also found that residents of zip codes where there is a high density of CAFOS had shorter lifespans, although the researchers stopped short of establishing causality.

Naeema Muhammad, organizing director of the NC Environmental Justice Network, also sits on the state’s Environmental Justice and Equity Advisory Board. “While the improvements to the swine general permit are welcome and necessary, they still do not meaningfully address the equity issues that are at the center of the [civil rights] complaint, Muhammad said in a prepared statement.

“No matter how strong DEQ’s regulations or oversight,” Muhammad said, the open lagoon and sprayfield system —  causes a substantial part of the adverse effects on the health, well-being and environment of people living near operations covered by the General Permit. It must be replaced by the superior technologies that meet the 2007 statutory performance standards, which also apply to digesters and swine waste biogas projects.”

This month the agency also released a draft of a violation point system that can be used to better gauge farms’ compliance. Points are assigned based on negligence, willfulness and the danger posed by the violation. If a farm accumulates six points within a rolling five-year period, DEQ could revoke its permit.

DEQ also issued the first version of an anonymous complaint tool.  DEQ has begun publicly listing the number of odor complaints it receives, as well as the farms where inspectors determined there was a violation.

By allowing complaints to remain anonymous, people could feel more secure in reporting without fear of retaliation from the farmers. Several neighbors have said that farmers have tried to intimidate them, including one person who testified in a deposition that one farmer entered her mother’s home and shook the chair she was seated in and threatened her.

From November 2018 to April 2019, DEQ confirmed 62 complaints involving cattle, dairy, poultry and swine farms. (Most poultry farms aren’t required to have a permit because they use “dry” litter. However, these farms can still stink.) Inspectors issued warning letters, notices of deficiency and notices of violation related to the complaints. Farms are also provided with an “odor control checklist.”

“As an agency, we continue to be responsive to complaints, conducting inspections and taking enforcement actions when it is appropriate to do so,” Martin said.

For the latest reporting period, May 2019 through March 2020, DEQ investigators confirmed eight of 85 complaints. Six of them dealt with illegal discharges into waterways; two involved spraying waste on fields within four hours of a flood watch. The violators were issued with warnings, notices of deficiency or notices of violation, depending on the egregiousness of the offense.

For example, inspectors found a Duplin County swine farm co-owned by Terry Tate and AJ Linton was illegally discharging waste into Murphey’s Creek — a waterway in the Stockinghead Creek watershed that has high levels of pollution.

Roughly half of the recent cases dealt with hog farms or a combination of livestock operations — hog and poultry, for example, on the same property. Since lawmakers made the moratorium on new and expanded hog operations permanent in 2007, thousands of poultry farms have been built in the state; most poultry operations are “deemed permitted,” meaning they don’t need a permit.

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Environment, Legislature

House bill would ban sale, production of PFAS in North Carolina

(Illustration: EnviroScience Inc.)

Companies could no longer manufacture PFAS, also known as perfluorinated compounds, in North Carolina under a new proposal, House Bill 1109.

If enacted into law, the measure would also prohibit the export of the toxic compounds, “except for products specifically authorized or required to contain PFAS under federal law.”

The bill was introduced May 14; it has eight co-sponsors, all Democrats: Pricey Harrison, John Autry, Alison Dahle, Susan Fisher, Marcia Morey, Deb Butler, Zack Hawkins and Raymond Smith.

There are 5,000 types of PFAS. Most are used in, or byproducts of, the manufacture of dozens of waterproof and stain-resistant consumer goods, such as clothing, cookware, pizza boxes, microwave popcorn bags, and more.

Of the few types of PFAS that scientists have studied, all have been linked to various health problems in humans, including several cancers, thyroid disorders, low birth weight, high blood pressure during pregnancy, ulcerative colitis and high cholesterol.

The compounds are widespread in the environment, especially rivers, lakes groundwater and drinking water supplies. They are often referred to as “forever chemicals” because they take decades to degrade.

The bill would allow DEQ to assess civil penalties of $5,000 to $25,000 for the first offense, and $10,000 for subsequent offenses. The maximum penalty for one month is $200,000.

It also would appropriate $100,000 in one-time money for additional monitoring and enforcement.

Several of the same sponsors also introduced two additional PFAS-related measures:

  • HB 1108 would require any company that discharges PFAS into the waterways to disclose the types, amounts and concentrations in order to receive a permit from the NC Department of Environmental Quality.

The same information would be required of wastewater treatment plants, both public and private, that receive discharges from industry. Those plants would have to remove the PFAS before discharging or require the industrial source to do so.

Among the other provisions are requirements for DEQ to study PFAS in landfill leachate and in biosolids that are applied to land.

PFAS enter landfills when contaminated consumer goods are thrown away. Leachate is liquid from the garbage that is captured in tanks beneath the landfill.

Biosolids are generated from wastewater treatment plants and used to fertilize agricultural fields. However, when it rains runoff from those fields can send PFAS into the groundwater and surface water. From there, the compounds can enter the drinking water supply.

In addition to the $5 million to DEQ for water quality monitoring, the State Water Infrastructure Authority would receive $80,000,000 in one-time money to issue matching grants to water systems to build or improve their  drinking water treatment systems to “substantially reduce public exposure to detectable PFAS.”

  • HB 1110 would require two state agencies to study the various effects of the compounds on human health and wildlife. DEQ  would be required to create an inventory of direct and indirect discharges of PFAS into surface water, air, groundwater and soil.

The Office of Management and Budget would calculate costs to local and state governments, several of which have had to spend millions of dollars to upgrade their drinking water treatment systems to reduce PFAS levels; those expenses are then passed on to ratepayers.

The NC Policy Collaboratory would also be charged with studying the future costs of removing or reducing the contaminant loads.

The bill would appropriate $600,000 for the studies.

agriculture, Environment

Farm Bureau wins Round 1 versus DEQ over swine farm requirements

This is a developing story and will updated.

The North Carolina Farm Bureau has temporarily prevailed in a contested case hearing against the NC Department of Environmental Quality over three issues related to industrialized hog farms.

Administrative Law Judge Donald Overby on Friday placed a temporary stay on requirements that were included in general swine permits: groundwater monitoring, annual reporting, and phosphorus loss tests.

Overby didn’t rule on the necessity of these requirements, only on whether DEQ was legally allowed to include them in the general permits.

The Farm Bureau had claimed that DEQ had overstepped its authority to incorporate these requirements into its general swine permits, which were to go into effect last October. However, because of the contested case hearing, the changes, which strengthen some aspects of CAFO operations, have not been implemented.

Overby ruled that the law requires DEQ to go through rule-making on these three provisions rather than unilaterally inserting them into the permit. The Environmental Management Commission is in charge of rule-making for DEQ; it can take 18 months to two years for the rules to be drafted, debated, submitted for public comment and finalized.

General swine permits cover most of the concentrated animal feeding operations in North Carolina; they are used to cover a class of operations, rather than individual permits. General swine permits are up for re-adoption every five years.

Several of the new provisions in the general swine permits came about because of a settlement agreement between civil rights groups and DEQ. The groups had filed a complaint with the EPA against the agency in 2014 over the disproportionate effect of swine CAFOS on communities of color. The EPA agreed that the complaint had merit, and in 2018, DEQ and the groups reached an agreement.

During the public hearings on the general permits, the Farm Bureau, Pork Council and many contract growers for major hog producers Smithfield and Prestage argued that the permit requirements for groundwater monitoring, annual reporting and phosphorus testing were onerous or redundant.

However, groundwater monitoring is important because runoff or leakage from enormous hog waste lagoons can seep below the surface and into neighboring private drinking water wells or rivers and streams. Annual reporting, DEQ and civil rights groups say, more closely monitor waste management and environmental issues that these farms can pose. DEQ required phosphorus loss tests because they can indicate erosion or runoff from the farms, which in turn can create harmful algae blooms in waterways.

The NC Environmental Justice Network and the state. NAACP had tried to get the court’s approval to intervene in this case but were denied last year. They could appeal the judge’s decision. Overby has not ruled on the entire case; a hearing is scheduled for July 28.

 

COVID-19, race

Pandemic has sparked anti-Asian bias and violence. Here’s how you can report it.

NCAAT Executive Director Chavi Koneru (Photo: NC Asian Americans Together)

A man allegedly stabbed an Asian-American family at a Sam’s Club in Texas. In New York, people yelled anti-Asian insults at a woman and hit her on the head with an umbrella so hard she required stitches. And in Kansas, a patient with COVID-19 told their nurse, who is from Korea, “thank you for the coronavirus.

And in North Carolina, there have been racially motivated incidents against Asian-American students on UNC-Chapel Hill and NC State campuses, according to North Carolina Asian Americans Together.

Now NCAAT has launched an online portal to report anti-Asian discrimination and better track its prevalence: www.ncaatogether.org/biasreporting.

NCAAT will not release or disclose any personal information without prior consent. All submissions will remain anonymous unless otherwise requested.

Anti-Asian discrimination and violence has become more common since the COVID-19 outbreak, because the virus originated in China. President Trump has stoked the hostilities by calling the new coronavirus “the Chinese virus.”

“We do not expect racist and xenophobic ideology and rhetoric to vanish once this pandemic ends,” NCAAT Executive Director Chavi Koneru said. “It is imperative that we acknowledge these incidents within the context of a larger system of US imperialism and white supremacy. The effects of COVID-19 will not be felt equitably in this country, we recognize that Black, Indigenous, immigrant, and other historically marginalized communities are already feeling disproportionate harm and trauma. There is more need than ever to work together to dismantle racist and harmful narratives for the betterment of all of our communities. ”