(Scroll down to read details of the consent order.)
For state regulators, a 46-page consent order marks the end of a decades’- long shell game that Chemours/DuPont played with the Department of Environmental Quality over the company’s secret discharges and emissions of GenX and other perfluorinated compounds.
But for some North Carolina residents who oppose the consent order, there is no closure. The remedies and penalties are inadequate, they say, for not only Chemours’ permanent damage to the environment, but also the lasting contamination in their drinking water, food supply, their bodies and those of their children.
“I feel that we are being discriminated against because we are small rural folk,” said Mike Watters, who lives in Gray’s Creek, near the Fayetteville Works plant. Many wells in that neighborhood have been contaminated with GenX and PFAS.
In many instances, Chemours hid information about what its Fayetteville Works plant was emitting and discharging into the air, groundwater and Cape Fear River. But there were also times when state regulators ignored warnings – from scientists and even an employee – about what Chemours/DuPont was up to.
It’s now widely known that in November 2016, NC State scientist Detlef Knappe advised the Cape Fear Public Utility Authority and 19 DEQ officials about the presence of GenX in the river and drinking water supply.
Those officials included former Assistant Secretary Tom Reeder, who served under Secretary Donald van der Vaart, and former Division of Water Resources Director Jay Zimmerman. Neither of them alerted incoming Secretary Michael Regan about the email. (Reeder went to work for Sen. Pro Tempore Phil Berger; Zimmerman is still with the agency but now supervises the regional offices.)
But until now it wasn’t well known that DEQ – then the NC Department of Environment and Natural Resources – was aware as early as at least 2004 that DuPont had a problem containing its perfluorinated compounds – PFAS — at the Fayetteville Works plant.
According to notes from an agency pre-inspection conference dated that September, Mike Johnson, the facility’s environmental manager, told DENR inspector Tom McKinney that PFOA – also known as C8 – had been detected in one of the groundwater monitoring wells. C8 exposure has been linked to a variety of serious health problems, including low birth weight, high cholesterol, a depressed immune system, reproductive and developmental problems, and thyroid and hormonal disorders. It is listed as a likely carcinogen.
McKinney was an inspector in the Division of Air Quality at the time. He left the agency in 2006, but later returned and now works in the Division of Water Resources.
“This is quite surprising since the [C8] plant only began operation in December 2002,” the notes read. “Mr. Johnson indicated that they do not understand why C8 was detected in their ground water” and he speculated that it might have been formed from a chemical reaction unrelated to the C8 process.
McKinney told Policy Watch that he notified his superiors in DAQ. Shortly afterward, he said, he was “excluded from all meetings and responsibilities” – including inspections — related to the Fayetteville Works plant. He said it was never clear why he was reassigned from the DuPont case, or who ordered it. McKinney said he doesn’t know what happened to the information he provided to his supervisors.
At the time, Keith Overcash was the director of Division of Air Quality. He left the agency in 2010 and now is vice president of Carolina DreamBuilds, which constructs log cabins. Overcash did not respond to a phone call seeking more information about the events.
William Ross Jr. was DENR secretary from 2001 to 2009, during the Gov. Mike Easley administration. Ross is now an environmental attorney and consultant at the Brooks Pierce law firm in Raleigh. He did not return an email seeking comment.
According to an online archive maintained by McKinney, DuPont Fayetteville Works had tested air emissions from the C8 plant. “There has been increasing concern during the past year that the spread of C8, in the environment around the plant may have resulted in part from plant emissions of C8 into air.”
In 2004, the EPA had not completed its review of C8, and didn’t regulate it as toxic or hazardous. But C8 wasn’t a complete unknown. In 2001, Ohio Valley residents sued DuPont in a class-action suit over C8 exposure from the company’s Parkersburg, WV, plant.
And in 2002, DuPont in Fayetteville began manufacturing C8 because the 3M company, under regulatory scrutiny, had phased it out. In the same year that McKinney learned of the groundwater contamination in Fayetteville, DuPont settled a $671 million class-action suit and agreed to provide alternate water and medical monitoring to thousands of residents in the Ohio Valley.
The pre-inspection notes also show that McKinney and Johnson discussed air emissions from wastewater from the production of Nafion. Nafion byproducts also belong to a class of PFAS. The byproducts – fluorocarbons – are “persistent chemicals that are not degraded by wastewater microorganisms and remain unchanged as they are discharged to the river.”
Last year, the state health department conducted a small study of 30 adults living hear the plant. C8 and other PFAS (but not GenX) were found in the blood of every participant – at levels higher than the median for the US population.
Meanwhile, NC State scientists conducted a larger study of 345 people, including 56 children, in Wilmington. Nafion byproduct 2, a type of PFAS, was detected in 99 percent of the samples. While PFOA blood levels have decreased in the general US population, that trend has not occurred in Wilmington. In general, PFOA blood levels were similar to those of the general population – from 20 years ago.
These compounds will long outlive the consent order.
As Policy Watch reported Wednesday, the consent order lays out several new requirements for Chemours to analyze, monitor and report its emissions and discharges of GenX compounds and other per- and polyfluorinated compounds into the air and water, including the Cape Fear River.
Since drinking water has also been contaminated by GenX and PFAS emanating from the plant, Chemours is required to pay for public water connections for households with GenX concentrations above 140 parts per trillion, or other health advisory goal, whichever is lower. The company must also pay residents’ water bills for up to 20 years, unless the expense exceeds $75,000, in which case that household will be offered filtration systems.
Chemours also is mandated to “provide effective systems to treat drinking water fountains and sinks in public buildings,” such as Gray’s Creek Elementary School. It also must “ensure that filtration systems are operating properly and are maintained for at least 20 years,” at the company’s expense.
However, opponents of the consent order say more households should be eligible for public water, not just those with GenX levels above 140 ppt. Households with cumulative levels of 70 ppt for all PFAS or any single compound at 10 ppt will receive reverse osmosis systems.
The agreement also requires the company to remove 99 percent of the contamination of the surface water and groundwater at an old outfall at the Fayetteville Works site. Chemours also must provide downstream utilities, such as the Cape Fear Public Utility Authority in Wilmington “with an accelerated plan” to reduce PFAS in the Cape Fear River, which is the drinking water supply for that city and other municipalities.
And Chemours must study the extent of PFAS contamination in Cape Fear River sediment, which could lead to a clean up of that pollution.
Cape Fear River Watch was allowed to intervene in the consent order – meaning the nonprofit had input into its terms – in exchange for dropping lawsuits against DEQ and Chemours. Cape Fear Riverkeeper Kemp Burdette called the consent order “an important first step in stopping pollution from leaving the Chemours site and entering the Cape Fear River, ground water, and the air. We are committed to seeing this process through until Chemours can prove that they have cleaned up the mess they have created.”
The company must also rein in PFAS concentrations its air emissions by 99.99 percent by December 2019. DEQ officials said Thursday that monthly reporting will allow the agency to determine if the company’s reductions are on track, and if not, “we can take steps – or tell them to” in order to meet the legally required benchmarks.
Much of the work must be completed this year; longer-range solutions begin in 2020. “We do think the timeline is achievable,” said DEQ Secretary Michael Regan. “We’re pushing the company to work as expeditiously as possible. They have a lot of work to do.”
Chemours has agreed to pay a $12 million penalty, plus $1 million in investigation costs. That amount is a fraction of Chemours’ revenue. Last year the company generated $6.6 billion in revenue, a 7 percent increase from 2017. Net income was nearly a billion dollars.
DEQ could further fine Chemours from $1,000 to $30,000 a day for failure to comply with some conditions of the order. Other potential fines include $1 million for failing to achieve air emissions reductions.
The agreement doesn’t insulate the company from private lawsuits – there are at least three – and potential damages.
The order and attendant penalty covers most state enforcement actions through Nov. 28, 2018. Any undisclosed or new information that emerges from that time, though, is not covered under the agreement.
“We looked at the full extent of our authority to level fines,” Regan said, explaining how the penalty – the largest in the agency history for one site — was calculated. “We were not conservative with that number. We went a strong signal that if they want to stay in North Carolina, they must abide by the order.”