DEQ proposes $13 million penalty on Chemours; draft consent order up for public comment

This map and diagram illustrate treatment options for contaminated discharge as part of the proposed consent order. The yellow dots represent sampling locations with GenX concentrations in parts per trillion. The area is located on the southeast side of the Chemours property. (Map: Court documents filed by NC DEQ)

We don’t know what gifts Chemours is grateful for this Thanksgiving (a $275 million profit in the third quarter?) but a penalty imposed by state environmental regulators isn’t one of them.

At 7:30 p.m. on Thanksgiving Eve, the NC Department of Environmental Quality announced a 39-page proposed consent order between the agency and Chemours in which the company would pay $12 million civil penalty, plus $1 million in investigative costs related to GenX contamination from the Fayetteville Works plant. The nonprofit Cape Fear River Watch is a plaintiff/ intervenor in the case.

According to court documents filed in Bladen County, while agreeing to the proposed consent order, Chemours “denies any violation of any law, regulation or permit, including the claims of any such violation made in the Amended Complaint or the NOVs, and has agreed to this Consent Order solely to avoid the expense, burden and uncertainty of litigation and to address community concerns about the Facility.”

The proposed consent order also lists other requirements that must be met, or else the agency can levy additional financial penalties:

Chemours must provide permanent drinking water supplies in the form of either a public waterline connection or whole building filtration system for those with drinking water wells with GenX above 140 parts per trillion “or applicable health advisory.” This language gives the agency latitude in case the health advisory is revised to 110 ppt, as a recent EPA draft report recommends.

  • The company must also provide, install and maintain three under-sink reverse osmosis drinking water systems for well owners with combined PFAS levels above 70 ppt or any individual PFAS compound above 10 ppt. These concentrations reflect EPA recommendations; 10 ppt is also the state’s groundwater standard for otherwise unregulated compounds.
  • Reduce and control air emissions of GenX on the following schedule:
    • By Dec. 31, 2018, complete construction of new emission controls to achieve a 92 percent reduction of facility-wide GenX compound air emissions compared to the 2017 baseline.
    • By Dec. 31, 2019, install a thermal oxidizer to control all PFAS from sources, demonstrate PFAS reductions at an effectiveness of 99.99 percent efficiency and a 99 percent reduction facility-wide for GenX emissions compared to the 2017 baseline/
  • Continue to capture all process wastewater from its operations at the facility for off-site disposal until a National Pollutant Discharge Elimination System (NPDES) permit is issued that authorizes discharge of process wastewater.
  • Conduct health studies to determine potential health risks associated with the release of PFAS compounds into the environment.
  • Sample drinking water wells at least one-quarter mile beyond the closest well that had PFAS levels above 10 ppt, as well as annually retest wells that were previously sampled.
  • Submit and implement a plan for sampling all wastewater and stormwater streams to identify any additional PFAS.
  • Submit to DEQ for approval a Corrective Action Plan that, once approved, is implemented and reduces PFAS contributions in groundwater along the Cape Fear River by at least 75 percent.
  • Notify and coordinate with downstream public water utilities when an event at the facility has the potential to cause a discharge of GenX compounds into the Cape Fear River above the health goal of 140 parts per trillion.

Chemours issued a statement regarding the proposed order:

“This agreement is an example of how industry can work with stakeholders at the local and state level to address these concerns,” said Paul Kirsch, president of Chemours’ fluoroproducts business unit. “We are committed to operating with transparency and a bedrock commitment to a sustainable future. We intend to live up to our commitments with actions not just words.”

Comments on the proposed order will be accepted until Dec. 21. Comments can be submitted electronically to comments.chemours@ncdenr.gov or mailed to Assistant Secretary’s office, RE: Chemours Public Comments 1601 Mail Service Center, Raleigh, NC 27699-1601.


US Army Corps of Engineers temporarily suspends work on Atlantic Coast Pipeline in NC

Tree-cutting and other work on the Atlantic Coast Pipeline in North Carolina has been halted by the US Army Corps of Engineers, pending an appellate court’s decision on aspects of the project’s permits. The Corps’ authorized the temporary suspension of work per Dominion’s request,  according to a Nov. 20 letter sent and signed by Scott McClendon, chief of the Corps’ regulatory division in Wilmington.

Earlier this month, the Fourth Circuit Court of Appeals stayed the Corps’ verification of whether the ACP was complying with its nationwide permit related to activities in West Virginia. “Because of that order, it is uncertain” whether the permit will be available “to authorize work in North Carolina,” the letter read.

ACP, LLC is required to stop all work immediately, except for stabilizing construction areas. The Corps’ Norfolk office issued the same letter for work being conducted in Virginia.

The $7 billion project has encountered several legal setbacks, primarily in Virginia and West Virginia. There, environmental advocates successfully have taken their objections with the federal government’s permitting to court. In North Carolina, Marvin Winstead, a landowner in Nash County, also successfully received a 90-day stay from a US District Court, prohibiting contractors from tree-cutting or even entering his property.

Because of the many legal hurdles, construction  in North Carolina has been limited to the northern and southern extents of the route. If built, the ACP would travel through portions of eight counties in eastern North Carolina, including low-income areas, communities of color and tribal lands.

US Army Corps of Engineers Signed Suspension Letter by Lisa Sorg on Scribd


Health goal for GenX in drinking water could be reduced; EPA accepting public comment on draft toxicity report


Rusty Goins, second from left, Beth Kline-Markesino, and Katie Gallagher of North Carolina Stop GenX in Our Water, recited the names of people in New Hanover and Brunswick counties who have died of rare forms of cancer — many of them children. Goins has cancer; Kline-Markesino’s infant son, Samuel, died from developmental defects of his kidney, bladder and other organs. At far left is Rep. Billy Richardson, who represents part of Cumberland County. He was waiting to speak at the EPA meeting about the drinking water crisis that had extended to his district. (File photo: Lisa Sorg)

More people living near the Chemours plant could qualify for alternate water supplies if the EPA’s initial findings on the toxicity of GenX, released last week, are finalized.

The basis for the potential switch is the EPA’s draft report proposing a chronic reference dose for GenX that translates to a health goal of 110 parts per trillion in drinking water. (The EPA is taking public comment on the draft. Scroll down for instructions.)

A chronic reference dose is the daily amount of GenX a person can be exposed to for decades without suffering adverse health effects. A health goal is non-enforceable but is widely used by states and tribal nations to issue recommendations. North Carolina’s provisional health goal for GenX in drinking water is 140 ppt.

In the Wilmington area, concentrations of GenX in drinking water are already below 110 ppt.

However, some people who live near the Chemours plant are on private wells that have tested between 110 ppt and 140 ppt. Those households could switch to bottled water, whole-house filters or connection to a public water system. Chemours would be responsible for the cost of installing or connecting those systems.

The wells of 225 households in that area have already tested above 140 ppt.

The plant is near the Cumberland-Bladen county line along NC Highway 87. A spinoff of DuPont, Chemours and its parent company have discharged GenX and other per- and poly-fluorinated compounds into the Cape Fear River, soil and groundwater — as well as emitted into the air — for about 40 years. Those contaminants entered public drinking water supplies in New Hanover and Brunswick counties, and the private wells of dozens of residents living near the plant.

Detlef Knappe, an NC State University professor and a leading scientist in the field of emerging contaminants, said the EPA’s reference dose for GenX is slightly more protective than the one used by DHHS. However, several factors can affect an individual’s total exposure to GenX: The person’s weight, amount of water consumed per day, and the percentage of exposure that comes from drinking water. GenX is also found in non-stick coatings, such as Teflon, as well as pizza boxes, microwave popcorn bags and fast-food wrappers. A common estimate is that people receive 20 percent of their exposure to GenX via drinking water.

Kellie Hair, at a Bladen County listening session last February: “This is bullshit! We should tell Chemours to drink our water.”

Bottle-fed infants are particularly vulnerable because they drink a lot of water relative to their small body weight. DHHS based its calculations for a provisional health goal on the potential risks to that population. With the reference dose EPA proposed yesterday, the same assumptions would lead to a health goal of 110 ppt, Knappe said.

A DHHS spokesperson said the agency will continue to use the 140 ppt provisional health goal until the EPA releases its final reference dose. At that time, the spokesperson said, “we will revisit our provisional health goal for GenX.”

The state Science Advisory Board has agreed with DHHS’s calculations and methodology.

If the EPA’s draft findings stand, said Knappe, who is a member of the Science Advisory Board, “I would expect DHHS to lower the health goal” to 110 ppt.

Animal studies have shown that GenX can harm the kidneys, blood, immune system, developing fetus and the liver. Data, the EPA says, also suggests the chemical can cause cancer.

Last week, NC State scientists Jane Hoppin, Nadine Kotlarz and Knappe released results of a study analyzing levels of about a dozen PFAS —  per- and poly-fluorinated compounds — in the blood of 345 Wilmington residents, both children and adults. GenX was not detected but other new and known PFAS were: Nafion byproduct 2 (98 percent of residents sampled) PFO4DA (98 percent), and Hydro-EVE (76 percent). Some of these compounds haven’t been widely found elsewhere.

Concentrations of PFOA, which has been phased out, but lingers in the environment, were higher in Wilmington residents’ blood than the national average: 4.4 parts per billion, compared with 1.5 ppb.

Read more

Commentary, Courts & the Law, Environment, Legislature, News, Special Session, Voting

The week’s Top Stories on NC Policy Watch

1. The next big battle in North Carolina politics is just days away

The 2018 election may finally be in the rear view mirror, but for better or worse, the next battle over the state’s future will commence very soon – on Tuesday, November 27. That’s the day that Republican legislative leaders will convene the latest of their endless stream of “special” legislative sessions.

Unfortunately, there’s little indication that there will be anything very special about this particular convening – unless, that is, one places a high priority on voter suppression, dishonest schemes to amend the state constitution, and rump, lame duck governance in which unaccountable decision makers attempt to foist lasting change upon a mostly uninformed public.

As usual, we know very little about the specifics of the planned session at this point, but multiple news outlets have reported that it will feature the adoption of legislation to implement (i.e. flesh out the details for) some or all of three constitutional amendments approved by voters last week. That means that we could see legislation related to the amendments on voter ID, victims’ rights and hunting and fishing. The tax cap amendment requires no new legislation.[Read more…] ===
2. With the supermajority doomed, North Carolina should reconsider Medicaid expansion

Despite the manufactured panic of the migrant caravan, despite the midterm’s so-called “referendum on Trump,” despite the nation’s nonsensical gun laws, despite an election that often seemed a direct rebuke of misogynist GOP leaders and policies, the pollsters told us the 2018 election would begin and end with healthcare.

Prevailing wisdom held that, in 2010, voters were rankled by Obamacare when they tossed Democrats and other supporters of former President Obama’s signature legislation.

If past is prologue, 2018’s bad-tempered midterms would spell similar problems for Republicans, who’d, according to the polls, irritated voters by meddling with Obamacare. These days the law, warts and all, enjoys broad support in the general public, and enthusiasm for the GOP’s “repeal Obamacare or bust” campaign seemed to wane even before the late John McCain’s dramatic thumbs down.

Remarkably, a full-throated 41 percent of voters told exit pollsters last week that health care was their most important issue this year, according to NBC News, dwarfing even the economy, gun reform, and immigration. To twist Clinton strategist James Carville’s words, it’s Obamacare, stupid. [Read more…]

3. Partisan gerrymandering will be North Carolina’s next big court battle

Breaking the Republicans’ veto-proof legislative majorities was the short game for North Carolina Democrats and many voting rights activists this year. Their long game? Ending partisan gerrymandering for good in North Carolina.

Common Cause, the North Carolina Democratic Party and a group of individual voters filed a lawsuit earlier this week in Wake County Superior Court challenging the redrawn 2017 maps used in the election last week. They are using the state constitution’s Equal Protection and Free Election clauses as well as the free speech and association guarantees to make their case.

“There is nothing ‘equal’ about the ‘terms’ on which North Carolinians vote for candidates for the General Assembly,” the 69-page lawsuit states. “North Carolina’s Constitution also commands that ‘all elections shall be free’ – a provision that has no counterpart in the federal constitution. Elections to the North Carolina General Assembly are not ‘free’ when the outcomes are predetermined by partisan actors sitting behind a computer.” [Read more…]

***Bonus read: Trump nominee Farr could be confirmed to Eastern District judgeship by end of year

4. Republican legislators pledge to probe Cooper Atlantic Coast Pipeline deal

The Joint Subcommittee on the Atlantic Coast Pipeline voted Wednesday to launch an investigation into Gov. Roy Cooper’s office, albeit one without an investigator — and without any notion of how much the inquiry would cost.

The investigation, spearheaded by Republican Sens. Harry Brown and Paul Newton and Rep. Dean Arp, will look into whether Gov. Roy Cooper’s $57.8 million Memorandum of Understanding (MOU) with Duke Energy and Dominion Energy was a “pay to play” deal to construct a segment of the Atlantic Coast Pipeline in North Carolina.

The lawmakers have implied that, in exchange for ponying up the money — which Cooper would control via an escrow account — the utilities would receive key water quality permits from the N.C. Department of Environmental Quality (DEQ). [Read more...]

5. High-powered trial lawyers joust as latest hog trial commences

Robert Thackston, who is tall, bald, with a trunk as straight as a redwood’s, removed his midnight-blue suit jacket to reveal a white twill shirt so crisp it threatened to shatter.

On the seventh floor, in Room No. 2 of the federal courthouse in Raleigh, the Texas lawyer sat at the head of a scurry of attorneys hired by Smithfield, the world’s largest pork producer. He rocked in his chair and flipped through his thicket of notes, as if perusing a wine list. He raised his eyes and gazed at the grid of lights in the ceiling. He seemed to be rehearsing.
Robert Thackston

Behind him, in the gallery, fellow Texas attorney Michael Kaeske, graying but boyish, smiled and shook hands with each of the plaintiffs. The eight Black neighbors of a 6,000-head industrialized hog farm near Rose Hill in Sampson County had entrusted him with their story. It seemed to weigh on him. Flanked by lawyers from the Salisbury firm Wallace and Graham, which hired him as the lead attorney, he approached his desk and turned around to face the packed courtroom. He touched three fingers to the side of his neck, as if measuring his pulse.

The fourth hog nuisance case against Smithfield Foods began in US District Court on Wednesday. Yet even before the trial, its methods and strategies contrasted with the previous three. The farm in question, Sholar, is owned and operated by Smithfield Foods. Although in all of the cases the defendant is Smithfield, the company has often used its growers — family farmers contractually bound to corporate whims — as a public relations tool to elicit sympathy. This time, there is no family farmer. There is just Smithfield. [Read more…]

6. Folwell, State Health Plan swim against rising tide with denial of insurance coverage to transgender individuals

North Carolina is not the only state whose transgender state employees and dependents are without insurance coverage under their state’s health plan.

But the state’s blanket exclusion of treatments for gender dysphoria—from counseling and hormone treatment to gender confirmation surgery—puts it firmly in the minority.

Only 12 states in the U.S. currently have explicit exclusions of transgender and transition-related health care in their state employee health benefits. Seventeen states and Washington D.C explicitly provide for this type of care as part of their employee health benefits. Twenty-one states don’t specifically cover the treatment but do not have a blanket exclusion, making it easier for patients to appeal for some treatments and for the coverage to expand to include them.

“Generally speaking, it’s a positive trend,” said Logan Casey with the Movement Advancement Project, a Colorado-based group that tracks state stances on LGBTQ rights issues. [Read more…]

7. Weekly Editorial Cartoon:


Environment, Trump Administration

North Carolina’s environmental boss, EPA Region 4 administrator Trey Glenn indicted in Alabama

EPA Region 4 Administrator Trey Glenn, center, at an information and listening session about emerging compounds like GenX, held in Fayetteville earlier this year. Left is DEQ Secretary Michael Regan and right is Peter Grevatt of the EPA’s Office of Ground Water and Drinking Water. (File photo: Lisa Sorg)

This past summer, Trey Glenn, the EPA administrator over Region 4, which includes North Carolina, visited Fayetteville for a listening session on GenX and other emerging contaminants. “It’s a great time to be an American. It’s a great time to work at the EPA,” Glenn said in his tone-deaf opening remarks.

It’s uncertain how long Glenn’s great time at the agency will last. This week an Alabama grand jury indicted Glenn — a Trump administration appointee — on state ethics charges. The allegations stem from his previous work with a law firm that helped a coal company block an EPA cleanup of contamination in a low-income Black neighborhood in north Birmingham. The company, Drummond, was among the parties responsible for the pollution.

Al.com, a paper of record in Alabama, has an excellent story with extensive background on Glenn’s misdeeds. A Mother Jones piece also contains juicy details.

Al.com reported that Glenn and former Alabama Environmental Commissioner Scott Phillips worked in tandem to derail the polluted communities’ efforts to compel the coal company to clean up the contramination.

From Al.com:

From 2014 through 2017, Glenn and Phillips worked with those defendants [the coal company] to oppose the EPA efforts, court exhibits and trial testimony showed. One exhibit in that trial showed that Phillips proposed to “hijack” a north Birmingham community organization that had been working with the EPA to clean up neighborhoods there. During his testimony, Phillips said that by “hijack” he meant “work with.”

Among Glenn’s previous scandals: his financial involvement with Big Sky Environmental, responsible for the so-called “poop train.”

Again from Al.com:

Big Sky Environmental made headlines this year after it accepted human feces from New York for disposal at its Adamsville landfill. A train that delivered that refuse stunk up the surrounding community and after national news coverage became known as the “poop train.”

Mother Jones reported that the EPA didn’t respond to requests for comment about Glenn’s future at the agency. The great times, though, could soon be over.