Attorney General Josh Stein suing DuPont, Chemours over toxic PFAS contamination in drinking water

By
October 13, 2020
In Environment

(Illustration: EnviroScience Inc.)

Attorney General Josh Stein today filed a lawsuit against DuPont and Chemours, alleging they covered up the discharge and release of toxic PFAS, including GenX into the drinking water and air, even though the companies knew the compounds were harmful.

PFAS is short for perfluorinated compounds, of which there are at least 7,000, according to the EPA. They are commonly used in many consumer products, such as Teflon pans, microwave popcorn bags, water-resistant clothing, and stain-resistant furniture.

They are also present in firefighting foam, but that use is not part of today’s filing.

PFAS, also known as forever chemicals, resist biodegradation, are mobile, persist in the environment, such as water and compost, and accumulate in living organisms – including people. These chemicals are harmful to human health. They can cause kidney and testicular cancer, thyroid disease, ulcerative colitis, cholesterol, hypertension, and damage to the immune system.

The chemicals have been found in the drinking water, surface water, blood and urine of an untold number of North Carolinians who have been exposed to them.

The 58-page lawsuit, filed in Cumberland County Superior Court, seeks to hold both Chemours and DuPont accountable for the damages they have caused to North Carolina’s drinking water supplies, fisheries, and other natural resources. It also asks the court to void certain corporate transactions among the companies — a complex scheme designed to shield billions of dollars in assets from the State and others who the companies knew were damaged by their conduct.

Chemours could not be immediately reached for comment. Update: 5:11 pm with comments from Chemours:

“We are currently reviewing the filing in detail.  Chemours has operated as an independent company since July 1, 2015.  Since that time, Chemours has taken definitive action to address active emissions and historic deposition at our Fayetteville site, and continues to do so.  Chemours has cooperated with the State of North Carolina to address PFAS concerns, and has agreed to a court approved Consent Order and its addendum, which was entered by the court yesterday.  Our investment in emissions control technology has significantly decreased GenX emissions by 99% and our thermal oxidizer continues to destroy PFAS with greater than 99.99% efficiency. We continue to decrease PFAS loading to the Cape Fear River and began operation on September 30, 2020 of a capture and treatment system for one pathway at the site.  Under the CO Addendum, Chemours will take a number of measures to address PFAS loadings from other pathways, including onsite groundwater to the Cape Fear River.”

Attorney General Josh Stein

According to the complaint filed today, DuPont and Chemours have contaminated the land, air, water, and other valuable natural resources around their Fayetteville Works Facility, in the Cape Fear River, and in downstream communities with PFAS for decades.

“From the beginning of their operations at Fayetteville Works,” the defendants “knowingly concealed the true nature of the PFAS being manufactured and discharged,” the complaint reads. “… To make matters worse, Defendants used unconventional and ineffective procedures that caused the release and discharge of PFAS that they knew posed substantial risk of harm to human health and the environment, all while concealing their actions.”

Stein said DuPont’s actions “were driven by an overarching intent to maximize its profits and miniziae its liabilities at the expense of the people and natural resources of North Carolina.”

In 2015, as the EPA was scrutinizing DuPont’s release of PFAS into the environment in other states, DuPont spun off a separate company, Chemours, apparently to shield itself from any environmental liabilities. Since then, DuPont has merged with Dow and divested itself of Chemours.  “Defendants should not be permitted to hide behind corporate machinations intended to avoid responsibility for the injuries they cause in North Carolina,” the complaint reads.

DuPont began using two types of PFAS — PFOA and PFOS — in the late 1950s. According to the complaint, DuPont knew that the compounds were toxic to animals and humans, and that they accumulated and persisted in the environment. As early as 1961, DuPont warned that the products “should be handled with extreme care” and that contact with the skin “should be strictly avoided,” according to the complaint.

By 1980, DuPont officials confirmed in internal memos that PFOA is “toxic,” that humans accumulate it in their tissues and that “continued exposure is not tolerable.”

Meanwhile, in North Carolina, DuPont discharged PFAS and GenX into the Cape Fear River, a drinking water supply for thousands of people living downstream. Even in meetings with state officials in 2010, the company concealed its  GenX, discharges, and released tens of millions of gallons of contaminated wastewater from the Fayetteville Works plant until late 2017, when state regulators threatened to revoke their permit. Such a revocation would have shut down the plant.

Stein’s  office took Chemours to court on behalf of the North Carolina Department of Environmental Quality (“DEQ”) to stop Chemours from discharging PFAS, including GenX, into the Cape Fear River and emitting those substances into the air. As result of DEQ’s litigation, a Consent Order was issued by the court in 2019, and amended yesterday.

The Order requires Chemours to install air emissions control technology to reduce PFAS emissions by 99.9%; prevent discharge of PFAS to the Cape Fear River; provide clean drinking water to affected private well-users near the Fayetteville Works; assess the extent of existing contamination; and develop a plan to clean up historical contamination of soil and groundwater on an expedited basis. Yesterday’s amendment requires Chemours to take significant additional actions to reduce PFAS entering the Cape Fear River through residual groundwater contamination.

DEQ described its Consent Order as first steps in a broad strategy to address PFAS in the Cape Fear River Basin, and DEQ retained its authority to investigate other contributors to PFAS contamination, including contributors upstream of the facility and to take additional legal action if necessary based on new information. Attorney General Stein’s lawsuit filed today compliments DEQ’s regulatory actions.

Stein’s office is asking the court to require DuPont and Chemours to pay all past and future costs necessary to “investigate, assess, remediate, restore and remedy the harms” of PFAS contamination.

Earlier this year, Chemours proposed a cleanup plan for widespread GenX and PFAS contamination in Bladen and Cumberland counties. DEQ rejected the proposal as being inadequate. The company has yet to resubmit a plan.

Sediment from PFAS-contaminated Chemours site heading down the Cape Fear River

By
July 23, 2020
In Environment

An “apparent increase” in dirt and sediment potentially contaminated with perfluorinated compounds — PFAS — is headed from the Chemours plant down the Cape Fear River.

In an email sent at 7:32 p.m. yesterday, Christel Compton, Chemours Fayetteville Works environmental manager notified the Cape Fear Public Utility Authority of the sediment release.

The sediment spilled into the River occurred while contractors were building a system to capture and treat contamination at the Old Outfall 2, Compton wrote. Old Outfall 2 is a highly contaminated area of the Chemours site. Until 2012, the company discharged process wastewater containing high levels of PFAS, including GenX, from the plant into the Cape Fear River. Studies conducted at the site indicate that groundwater is contaminated with several types of PFAS.

The treatment system is required under a Consent Order between the NC Department of Environmental Quality, Chemours and Cape Fear River Watch.

“We have ceased, pending further review, the specific construction activity that took place over the last day that we believe may have contributed to this increase,” Compton wrote in the email, as quoted by CFPUA. ” We do not know at this time whether any increase in sediments will also result in a short-term increase in PFAS levels downstream.”

Chemours said it is sampling the material and would notify the utility of the results.

The Cape Fear Public Utility Authority announced it has begun more-frequent sampling of raw water from the river as a result of the sediment release. The CFPUA has also asked the NC Department of Environmental Quality for guidance.

This is the second time the construction site has potentially spread contamination off Chemours property.

Policy Watch reported last month that Chemours had hauled nearly 40 dump trucks’ worth of dirt, tree stumps and roots from the Old Outfall 002 area  to an unlined construction and debris landfill.

DEQ cited Chemours with a Notice of Violation, and could fine the company.

DEQ cites Chemours for illegal dumping of PFAS-contaminated soil

By
June 19, 2020
In Environment

One of several semis and dump trucks that hauled debris from Chemours to an unlined landfill last week (Photo: Mike Watters)

Chemours could be fined after state environmental regulators cited the company for dumping soil and tree roots likely contaminated with perfluorinated compounds into an unlined landfill.

The NC Department of Environmental Quality found that Chemours failed to test the material for PFAS contamination before transporting multiple loads of soil and other yard waste from the Fayetteville Works facility for disposal in an unlined landfill.

“We will not tolerate irresponsible actions or attempts to cut corners that risk further impacts to the surrounding communities and to water quality,” said DEQ Secretary Michael S. Regan in a prepared statement.

Based on a tip from citizen watchdog Mike Watters, Policy Watch reported earlier this month that Chemours was hauling soil and tree stumps from Old Outfall No. 2, an area near the Fayetteville Works plant known to be contaminated with PFAS.

Watters also alerted DEQ to the activity.

Watters told Policy watch that within just three hours he observed 22 dump trucks taking the material to Hunt’s Land Construction and Inert Debris Landfill, which is unlined. he landfill is authorized to accept uncontaminated land clearing and inert debris.

Jeremy Hunt, who owns the landfill, told DEQ that Chemours dumped 32 loads of mostly yard waste and six loads of tree roots and soil.

DEQ ordered Chemours to remove the material from Hunt’s landfill. Chemours intended to then take it to the Robeson County landfill, which is lined.

There is well-documented and pervasive PFAS contamination at the Chemours facility, including soil data showing PFAS contamination in areas near the site location from which the soil was taken and disposed of at the unlined landfill, DEQ said.

Until 2012, Old Outfall 002 discharged process wastewater containing high levels of PFAS, including GenX, from the DuPont (now Chemours) plant into the Cape Fear River. Studies conducted at the site indicate that groundwater is contaminated with several types of PFAS constituents. Since plants can absorb PFAS through their root systems, and the soil near the old outfall was contaminated, it’s likely that the tree debris would contain the compounds as well.

Chemours spokeswoman Lisa Randolph told Policy Watch at the time that the company felled trees on the property earlier this year to build a water filtration plant that is required as part of a Consent Order with the state and Cape Fear River Watch. Chemours recently cleared the land of leftover limbs and roots and took them to Hunt’s landfill, she said.

Chemours must submit a plan to DEQ within 15 days of the violation that describes how the company removed and disposed of the material, as well as a plan to ensure it properly disposes of waste in the future.

The agency is considering fining Chemours for the latest violation. The company has already been cited nearly a dozen times since 2017 for air, groundwater and other violations related to GenX and PFAS.

Chemours forced to remove tons of debris from unlined landfill

By
June 9, 2020
In Environment

One of several semis and dump trucks that hauled debris from Chemours to an unlined landfill last week (Photo: Mike Watters)

Chemours has transported tons of soil and woody debris potentially contaminated with toxic PFAS, including GenX, to an unlined landfill in Fayetteville, according to state investigation prompted by citizen reports.

Now the NC Department of Environmental Quality has required Chemours to retrieve all of that material from Hunt’s Landfill, a Land Clearing and Inert Debris site, and has prohibited it from taking any debris there.

“Additional soil will also be removed from the area in the landfill where the soil and root material had been deposited,” said DEQ spokeswoman Laura Leonard. Chemours intends to take the material to the Robeson County Municipal Solid Waste landfill, which is a lined landfill with environmental monitoring, Leonard said, and DEQ has approved that plan.

DEQ did not cite the company, but Leonard said the agency “is reviewing all information it has obtained to determine whether additional follow-up action is needed.”

Mike Watters of Stop GenX in Our Water learned of the dumping last week, but by accident. “I just happened to be driving over to Huske Dam to look at how high Cape Fear was when I discovered the trucks were coming from that site,” Watters told Policy Watch.

Watters said over the next three hours he observed 22 dump trucks transporting debris from the area near Old Outfall 002 on the Chemours property to the landfill. Stop GenX subsequently alerted DEQ and Policy Watch to the dumping.

After Watters reported the incidents, the NC Department of Transportation and the Lock and Dam master closed the a state-owned access road leading to the plant. According to DEQ emails obtained by Policy Watch, the closure was “based on concerns with several drivers entering the construction area and Chemours property.” Orange barrel barricades remain up with a 12-foot spacing, allowing drivers to pass through to the Lock and Dam area and the other parts of the road as needed.

It is unclear how many tons or cubic feet of waste Chemours took to Hunt’s Landfill. Jeremy Hunt said Chemours removed all of the material last week. Reached at home, he didn’t know how many tons the company dumped. Officials at the Robeson County Landfill could not be reached today; the phone line was repeatedly busy and no one answered an email seeking additional information.

Chemours spokeswoman Lisa Randolph said the company felled trees on the property earlier this year to build a water filtration plant that is required as part of a Consent Order with the state and Cape Fear River Watch. Chemours recently cleared the land of leftover limbs and roots and took them to Hunt’s landfill.

Until 2012, Old Outfall 002 discharged process wastewater containing high levels of PFAS, including GenX, from the DuPont (now Chemours) plant into the Cape Fear River. Studies conducted at the site indicate that groundwater is contaminated with several types of PFAS constituents. Since plants can absorb PFAS through their root systems, and the soil near the old outfall was contaminated, it’s likely that the tree debris would contain the compounds as well.

One of 22 dump trucks or semis that hauled potentially contaminated soil and trees from Chemours to an unlined landfill. (Photo: Mike Watters)

Even though Chemours no longer uses the old outfall, it is building a water filtration facility to capture runoff that could flow through the contaminated area and into the river. The facility is expected to begin operating by Sept. 30.

Land Clearing and Inert Debris landfills, also known as LCIDs, are used to dump yard waste, untreated wood, bushes and trees. Because they aren’t required to be lined, there are restrictions on the type of waste they can accept. For example, LCIDs are prohibited from taking painted lumber, painted brick and block, municipal waste and construction waste because of potential contamination.

According to state inspection records, on Jan. 9 DEQ cited Hunt’s for accepting treated wood, painted block and some plastic. “Better screening of the incoming waste loads needs to occur to ensure all waste accepted meets rule requirements LCID’s before accepting,” the inspection reads.

Similarly, Construction and Demolition landfills, or C&Ds, aren’t lined. Policy Watch reported in April that a study conducted by former EPA scientist Johnsie Lang found high levels of PFAS seeping from those landfills and into the groundwater — presumably from household carpet or even remnants of firefighting foam. C&Ds in North Carolina are required to conduct groundwater monitoring and sampling for a variety of contaminants. PFAS are not among them.

Feds drop criminal case involving Chemours, Clean Water Act

By
May 18, 2020
In Environment

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.

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