Environment

DEQ asks judge to stop Chemours from discharging all GenX-related compounds, says company intentionally misled regulators

Chemours was so blatant in discharging GenX-related compounds from its Fayetteville Works plant that one of its disposal routes had a name: the Nafion Ditch.

Nafion, which is used to manufacture membranes, is the brand name for a compound in the family of perfluorinated chemicals related to GenX. According to a complaint filed by the NC Department of Environmental Quality in Bladen County Superior Court on Monday, Chemours allegedly knew GenX was potentially toxic but nonetheless lied to state environmental regulators about wastewater discharges containing it and other related compounds, including Nafion.

The complaint, an amendment to the original filed last September, was prompted by findings this week that Chemours was emitting nearly 40 times the amount of GenX-related compounds into the air than the company had originally disclosed. DEQ is asking the court to force Chemours to permanently stop all discharges of GenX and related compounds into the environment.

“It’s time for Chemours to own up to the level of contamination they have caused to the environment in and around their Fayetteville Works facility,” said DEQ Secretary Michael Regan in a prepared statement. “DEQ is using every tool available to require Chemours to clean up and stop further GenX contamination.”

Chemours has been illegally discharging GenX and related compounds into the Cape Fear River for decades, but has allegedly misled regulators about what and how it was dumping into waterways. For example, according to court documents, “for an unknown period of time” until late November 2017, Chemours had been discharging wastewater from containing PFAS (perfluorinated and polyfluorinated compounds) into the Nafion Ditch.

In 2015, following the detection of certain PFAS in the Cape Fear River, DEQ instructed Chemours to conduct supplemental groundwater sampling to determine what was causing the high levels in the Cape Fear River.  The company’s groundwater sampling results showed an elevated concentration of one type of compound. But for two years, Chemours failed to provided DEQ with the full results that showed high levels of other types of GenX related compounds.

Groundwater tests on the plant’s property show concentrations in one well at 640,000 parts per trillion — or 64,000 times the state’s groundwater threshold.  For man-made chemicals without maximum or interim standards, the state has set a threshold of  10 parts per trillion.

Other onsite wells had concentrations of GenX ranging from 42,000 ppt to 170,000 ppt. The groundwater contamination has spread, in part because of the discharge north of the plant into Willis Creek and south into the Georgia Branch, both tributaries of the Cape Fear River.

DEQ said it in its complaint that Chemours’ onsite wastewater treatment plant “has been ineffective at removing GenX compounds and other PFAS from the process wastewater discharged into the Cape Fear River through one of its outfalls.  As a result, groundwater, surface water, soils, drinking water wells and rainwater have all been contaminated. Atmospheric deposition — the emission of GenX-related compounds through the air, which then mix with rain or damp soil — is responsible for some of the contamination. Direct discharge of wastewater is the other pollution source.

“DuPont and Chemours failed to timely disclose to DWR the discharge of GenX compounds and other PFAS into the Cape Fear River,” DEQ alleges in the complaint. “In particular, none of the DuPont or Chemours [discharge] permit applications referenced “GenX,” “GenX Compounds” … or any chemical name, formula, or CAS number that would identify any GenX or related compounds” in the discharge.

Instead, DEQ said that Chemours and DuPont provided information that Division of Water Resources staff to “reasonably believe that GenX was not being discharged into the Cape Fear.”

In asking for an injunction, DEQ and the state attorney general’s office aren’t required to show actual injury. Rather, it must show only that Chemours’ acts or practices adversely affect the public interest.

 

FINAL Amended Chemours 6C Complaint by Lisa Sorg on Scribd

agriculture, Environment

Murphy-Brown destroyed samples, and other tidbits from Week 1 of the hog nuisance trial in federal court

[This is one of several stories and blog posts that will cover the hog nuisance trial in federal court in Raleigh. Check the Progressive Pulse blog for updates and analysis. Neighbors of the farm begin testifying this week. The trial is expected to last through the April.

The life-size ceramic dirty pink pig that stood in front of the jury box did not testify last week. But the mere presence of the porcelain porcine spoke volumes.

With US Senior District Court Judge Earl Britt’s permission, plaintiffs’ attorney Michael Kaeske had carted in the prop to help illustrate the testimony of an expert witness — environmental engineer, scientist and animal waste specialist Shane Rogers. The pig was likely unnecessary. Rogers testified in painstaking detail for two days about what he saw and smelled at Kinlaw Farms, the Murphy-Brown-owned facility in question. He described how he found bacteria from hog feces on 17 of 19 houses a half-mile away. He narrated graphic photos of the crammed interior of a hog barn, where the animals sloshed in their own waste.

And in what appeared to be a match of legal judo, the plaintiffs’ and defense attorneys took turns flipping Rogers’ testimony to buoy their case.

Rogers was aggressively cross-examined by Murphy-Brown’s defense attorney Mark Anderson, whose task was to try to undermine Rogers’ scientific methods, credentials and conclusions. Although the jury includes a woman with an extensive science background, at least one juror is a climate change skeptic. Casting doubt on the science was clearly a strategy — although one that potentially backfired.

“You brought a team of people with you, correct?” Anderson asked, showing Rogers a photograph of two people sitting about 30 yards from a hog barn at the farm. “They’re eating lunch.”

But as the jury learned in later testimony, the people were eating lunch by the hog barn — without respirators or other protective gear — because there was no where else to go on the farm.

“This is fairly unfortunate,” Rogers said, when Kaeske later asked him to provide context.. “The defense team showed up with an RV. They would not let us in the RV to eat, and they said if we went offsite, we couldn’t come back. I had no idea this was the case beforehand.”

Women were allowed to use the bathroom in the RV, Rogers testified, but not the men.

Another photo showed Rogers in a boat sampling from a waste lagoon. “This lagoon was particularly awful,” Rogers said. But Rogers wasn’t wearing a respirator, Anderson noted.

There was a valid reason for the lack of a respirator, Rogers testified. Beforehand, he had worn a respirator in a barn where he conducted sampling. The odor “was very very strong,” Rogers said, and the hydrogen sulfide meter was “oversaturated.” (Hydrogen sulfide smells like rotten eggs.) He burned through three respirator cartridges and had none left. “So I sampled the lagoon without one,” Rogers said.

(Rogers did amend his testimony to say that he had misremembered an aspect of the NC State University research farm on Lake Wheeler Road. It doesn’t use clean wastewater to flush its barns. Like Kimlaw, the farm uses wastewater from the lagoons.)

Rogers is being paid $250 an hour by the plaintiffs’ for his expert testimony. That testimony includes his findings, released in 2016, of the presence of DNA from fecal bacteria on 17 of 19 houses near the Kinlaw Farm. The bacteria DNA — known as Pig2BACT — indicates that not only odors but also pathogens are intruding on the plaintiffs’ property.

“I would not want to live there. It smells. I didn’t need to swab the wall for DNA to know that.”

“Then why did you test for Pig2BACT?” asked plaintiffs’ attorney Michael Kaeske.

“I wanted to bring physical evidence to show that the bacteria had moved from farm to the neighborhood,” Rogers said. The odors come and go, “but the fecal bacteria stays there.”

Anderson seized on the fact that Kaeske had done some of the swabbing of the walls, raising chain of custody and quality control issues. However, Rogers testified that he had trained Kaeske on how to conduct the test — taking a sterile swab, rubbing it over a small portion of a wall, placing the swab in a sterile container, before shipping it off to an accredited lab.

Murphy-Brown, Rogers said, did not test for Pig2BACT, but could have.

Rogers said he was followed by at least one Murphy-Brown representative as he studied the site. He testified that none of the company scientists took samples alongside him. Rogers gave them some of his samples, he testified. “But Murphy-Brown destroyed them.”

 

 

Environment

Chemours emitted nearly 40 times GenX-related compounds into the air than company reported; DEQ issues notice

Sample testing in parts per trillion near the Chemours plant: The circles represent rainwater; the rectangles, groundwater (Map: DEQ)

Chemours is emitting roughly 2,700 pounds — more than a ton — of GenX into the air each year, the Division of Air Quality announced today. That amount is 40 times higher than originally reported in early 2017 and four times higher than the company’s revised estimate submitted to state environmental regulators as recently as October 2017. Coupled with troubling rainwater data, the air reports have prompted the NC Department of Environmental Quality to issue a 60-day notice that it plans to modify the company’s air permit.

In June 2017, Chemours had reported to DEQ that it had emitted 66.6 pounds of GenX-related compounds the previous year. However, last October the company revised its figures to 594 pounds. As more data came in from stack testing at the facility since January, DAQ analyzed the results, which includes emissions from a processing area and leaks originating from the building, and concluded the current total.

These results establish a “causal relationship” between air emissions of GenX from Chemours and “widespread degradation of groundwater,” DAQ said in its letter to the company. Tests of groundwater and drinking water wells have shown high concentrations of GenX, and many residents are now using bottled water supplied by Chemours. The compound enters the groundwater when compounds similar to GenX are emitted through the air, then combine with water — either rain or in the soil — to chemically transform into GenX.

Further evidence bolsters the state’s assertion. Rainwater sampled at 13 locations within seven miles of the Chemours facility near Fayetteville showed levels of GenX as much as six times the state’s provisional health goal, according to data released today by state environmental regulators. Four of the 13 sites reported detections ranging from 496 to 810 parts per trillion; the highest level was detected five miles northeast of the facility, consistent with the prevailing wind direction. The provisional health goal for drinking water is 140 ppt.

DAQ’s letter to Chemours puts the burden on the company to prove it is not responsible for the contaminated groundwater. Otherwise, DAQ wrote, will modify the air quality permit prohibiting any GenX air emissions from the plant.

This week, UNC Wilmington researchers issued a report to the Environmental Review Commission summarizing results from sediment testing from the Cape Fear River, as well as an oyster study. Concentrations ranged from 21.6 parts per billion near Lock and Dam No. 2, to just 4 ppb near Chemours. The reason for the difference is that sediments are transported downstream, so it’s expected the levels would be higher there. These are believed to be the first GenX concentrations ever reported for sediments.

The problem with contaminated sediment is that it doesn’t just stay put; nor does stopping the discharge necessarily halt the pollution. Rain, wind, boats and other disturbances stir up the sediment, sending the compounds into the river– essentially recontaminating it. Researches concluded that GenX in the sediment could “impact sensitive estuarine ecosystems, as well as drinking water utilities, even if it is no longer being released into the environment.”

GenX is also present in biosolids from the water treatment process at the Cape Fear Public Utility Authority’s Sweeney plant. Studies are ongoing to determine more precise measurements, but the implications of GenX in biosolids is that these materials are often used as fertilizer on agricultural fields, such as hay, which are fed to animals.

And finally, UNCW researchers also studied how oysters responded to various levels of GenX. While initial results show that GenX didn’t build up in oyster tissue — positive news for people who eat the shellfish — high levels of the compound killed young oysters. A quarter of the 35 oysters exposed to concentrations of 100 parts per billion died. Researchers are now conducting studies of wild adult oysters and their response to GenX concentrations in surface water.

 

2018 April6 Letter to Chemours DAQ FINAL Signed by Lisa Sorg on Scribd

Courts & the Law, Environment

NC appellate judges send Chatham, Lee coal ash case back to lower courts; new EPA emails could be pivotal

Trucks carry tons of coal ash to the Brickhaven Mine in Chatham County. (Photo: Duke Energy)

Chatham County Superior Court Judge Carl Fox and Administrative Law Judge Melissa Lassiter both made legal errors in separate decisions on a coal ash case, prolonging the matter into its third year.

A three-judge panel of the NC Appeals Court today ruled unanimously that Lassiter improperly dismissed the case, which concerns the disposal of coal ash in former clay mines in Chatham and Lee counties. And Fox improperly reweighed and rewrote Lassiter’s decision without explanation.

Appellate Court Judge John Arrowood wrote the decision; Judges Anne Marie Calabria and Valerie Zachary concurred.

As a result, the case will be sent back to Chatham Superior Court and the Office of Administrative Hearings — potentially with new evidence to buttress concerned citizens’ objections to the coal ash disposal.

The case started in 2015, when citizens groups EnvironmentaLee, Chatham Citizens Against Coal Ash Dump and the Blue Ridge Environmental Defense League contested four state permits allowing coal ash to be disposed in open pit mines in Chatham and Lee counties.

DEQ had granted the permits to Charah/Green Meadow, Inc. to use the ash, which originated from Duke Energy’s Sutton and Riverbend plants, as structural fill in formerly excavated areas of the old clay mines, as well as newly excavated regions within the mine property.

The groups alleged that the coal ash disposal in the mines would have a “significant and adverse impact on their health and well-being” and that of their families; it allegedly would also harm their property values and the “enjoyment of the property.” The new disposal areas, the groups argued, were tantamount to landfills and should be regulated as such.

The EPA seems to agree, although that information was not available when Lassiter originally heard the case. Since then, the Blue Ridge Environmental Defense League obtained EPA emails under the Freedom of Information Act that indicate federal regulators considered the mines as landfills under Coal Combustion Rules. BREDL shared the emails with Policy Watch.

Since the Brickhaven and Colon mines were used for clay, then structural fill is not considered “beneficial use but rather disposal,” reads an email from EPA scientist Alexander Livnat. The mines would be subject to new disposal rules, including siting, liners, and groundwater monitoring. (The EPA is taking public comment on relaxing federal coal combustion rules; it’s too early to tell how a redux of the law would affect the Brickhaven and Colon sites.)

DEQ’s mining permit does require groundwater monitoring, but it does not mention an appropriate liner. The former mines are lined in order to receive coal ash, but Livnat wrote, the required bottom liner for the project appeared to have “higher permeability” than we have required for a landfill. In other words, liquid can seep through it more easily.

It’s unknown if this evidence would have swayed Administrative Law Judge Lassiter. Nonetheless, in 2015, she ruled in favor of DEQ, which had maintained the permits were properly issued. But instead of granting DEQ’s request for summary judgment, often used when there is no genuine issue of the facts, Lassiter dismissed the case. The appellate court determined today that Lassiter did not have the authority to do so.

In 2016, the citizens groups appealed Lassiter’s decision to Chatham Superior Court. In 2017, Judge Carl Fox ruled that DEQ had improperly issued two of the four permits: those allowing disposal in newly excavated areas.

However, in today’s ruling, the appellate court determined that Fox had exceeded the scope of his review. ” … It appears the superior court reweighed the evidence and rewrote” Lassiter’s decision. In doing so, Fox “completely rejected without explanation” many of Lassiter’s “findings of fact and conclusions of law.”

DEQ and Charah took the case to the appellate court, which stayed Fox’s order, allowing the ash to be disposed until the matter was finally decided. The appellate court then heard arguments on the case in January of this year.

Therese Vick of the Blue Ridge Environmental Defense League, said the groups still believe Fox ruled appropriately. With the EPA emails in hand, Vick said, “we’re considering our next steps.”

agriculture, Courts & the Law, Environment

The jury selected (no vegetarians), trial begins today in nuisance suit against Murphy-Brown hog farm

Photo by Michael Loudon, (Creative Commons)

Selected from a pool of 50 people, six women and six men will decide a pivotal, high-profile — and possibly historic — federal case that pits rural neighbors of an industrialized hog farm against global pork producer Murphy-Brown, a subsidiary of Smithfield Foods.

This case, one of more than a half-dozen scheduled to be heard in US District Court in Raleigh this year, centers on whether the nuisances — odor, flies, trucks and noise — from Kimlaw Farms in Bladen County are harming the quality of life and health of its neighbors. The 10 plaintiffs in this case are requesting both compensatory damages for the impacts on the enjoyment of their property, as well as punitive damages.

Murphy-Brown owns the hogs and is the defendant, not Kimlaw, the contract farmer. Murphy-Brown counters that its farms are safe and comply with state law, and that the odors are properly managed.

The trial could last as long as four weeks; opening arguments begin today at 9 a.m.

Murphy-Brown has gone to considerable effort to thwart nuisance cases. Nationwide, Right to Farm laws, which limit nuisance claims, have been passed in all 50 states. Agricultural states, such as Iowa, Texas and North Carolina, have some of the strongest statutes that favor corporate-owned farms. In fact, the upcoming nuisance cases could be the last of its kind in North Carolina. A year ago, under pressure from the pork industry, the legislature passed a controversial law sharply curbing the rights of citizens to recover compensatory damages — money for quality of life issues — in nuisance suits.

In early versions of the bill, the legislature tried to make the law retroactive. Had lawmakers succeeded, these cases, filed in 2014, would have been moot. However, the provision was ultimately struck before the bill became law. Gov. Roy Cooper vetoed the bill, but lawmakers overrode it.

But last September, Murphy-Brown filed a motion asking the federal court to reinterpret the law to apply retroactively, claiming that was the legislature’s intent. The court denied the motion and allowed the cases to proceed.

Considering the enormity and complexity of the case, jury selection went quickly yesterday. US District Court Senior Judge Earl Britt  presided over the process. After extensive questioning, the number of potential jurors, all of them from counties in the Eastern District, was whittled to 43, then 24, and finally, 12: nine whites and three people of color with diverse backgrounds and jobs: industrial engineer, software developers, trucking fleet manager, college student, mechanic, nurse practitioner, computer repairman, cashier, accountant and machine technician. They live in Wake, Johnston, Granville, Vance and Franklin counties.

The lines of questioning provided insight into the issues that might arise during the trial. Among the queries:

  • “Are you a vegan or a vegetarian?” (One person said yes, made the final 24, but did not advance to the final 12.)
  • “Do any of you have asthma?” (2 did.) “Migraines?” (1 replied yes)
  • “Do you think lobbyists are more beneficial to companies than to the public?” (6 yeas)
  • “Do you think that companies shape laws that give them an unfair advantage? (9 said yes.)
  • “Do you think climate change is overrated or does not exist? (3 replied yes.)

Judge Britt, who is 86 and was appointed to the bench by President Jimmy Carter in 1980, set a firm, authoritative, yet homespun tone in the courtroom. “This will be a high-profile case,” Britt said, instructing the jury to avoid all media coverage of the trial. (He’s never sequestered a jury in his 38 years on the bench.)

And as attorneys for the plaintiffs and the defense privately conferred on the selection, he advised the jury pool, smiling,  “I tell you, that if it looks like they’re talking about you, they are.”