GenX crisis didn’t have to happen: EPA Inspector General finds agency’s regional office knew nothing of a 2009 consent order

The GenX crisis, which contaminated the drinking water for tens of thousands of people in southeastern North Carolina, could have been averted had the EPA simply done its job.

The EPA Inspector General has found that a communication breakdown within the agency allowed DuPont, later Chemours, to discharge the toxic compound GenX into the Cape Fear River for eight years, in violation of the terms of a consent order.

The report, issued this morning, explained that a 2009 consent order between DuPont and EPA headquarters required the company to capture 99% of all air emissions and water discharges of GenX. The company failed to comply with the requirements, but EPA inspectors were none the wiser.

That’s because the consent order was never approved or reviewed by the EPA’s Office of Enforcement and Compliance Assurance.

Nor did EPA officials tell their counterparts at the Region 4 offices in Atlanta, who, had they known of the consent order, would have been required to inspect the Fayetteville Works plant to ensure it was complying with the terms.

Instead, those at the EPA who did know about the consent order used information provided by DuPont/Chemours to track and review the company’s compliance.

The EPA undertook no independent, on-site compliance monitoring for GenX at the Fayetteville Works facility until 2017, when first, the Wilmington Star-News, and then other statewide media began covering the issue.

By that time, the company had discharged millions of gallons of GenX into the river, contaminating drinking water supplies downstream in Wilmington and in Brunswick County. The company also failed to adequately control its air emissions of GenX, as laid out in the consent order with the EPA. When the compound left the plant through the smokestacks, it later fell to the ground and contaminated groundwater, crops and private drinking water wells over 70 square miles.

GenX is a type of perfluorinated compound, also known as PFAS. It replaced two previous compounds, PFOA and PFOS, which have been linked to cancer, ulcerative colitis, thyroid disease, high cholesterol, high blood pressure during pregnancy, among other serious health conditions. GenX was supposed to be less toxic, but recent scientific studies have shown it poses similar risks.

DuPont had petitioned the EPA in 2008 to begin making two new GenX chemicals. Known as a “premanufacture notice,” it is required by federal law for companies either manufacturing or importing new compounds. In 2009, the EPA’s Office of Chemical Safety and Pollution Prevention allowed DuPont to make these chemicals as long as the company complied with the terms of a consent order.

A consent order was necessary because the information about GenX that DuPont provided to the EPA was deemed “insufficient to permit a reasoned evaluation of the health and environmental effects of the chemicals.”

Without more data, the EPA determined “the uncontrolled manufacture, import, processing, distribution in commerce, use, and disposal of the chemicals may present an unreasonable risk to health or the environment.”

It also found that DuPont would produced GenX “in substantial quantities and will likely enter the environment in substantial quantities, and there may be significant or substantial human exposure to the substance.”

The consent order also required the company to provide workers with personal protective equipment, such as respiratory and skin protection, and to test for human health or environmental effects from exposure GenX. Testing protocols and results were to be sent to the EPA.

In February 2019, the NC Department of Environmental Quality and Cape Fear River Watch entered into a separate consent order with Chemours requiring the company to capture 99% of its GenX air emissions. Previously, DEQ had forced the company to stop discharging the compound into the Cape Fear under threat of revoking its environmental permits.

Chemours was also required to submit a Corrective Action Plan detailing how it would clean up the contamination. Earlier this year, DEQ Secretary Michael Regan determined the plan was insufficient and ordered the company to revise it.

Also in February 2019, the EPA issued a Notice of Violation to Chemours related to two facilities using the GenX manufacturing process: Fayetteville Works and the Washington Works facility in West Virginia.

However, that Notice of Violation involved Chemours’s failure to file certain reports and paperwork regarding the manufacture and import of the chemicals; it did not include any violations of the 2009 Consent Order at the Fayetteville Works facility.

The EPA did say that it was continuing to investigate the company and could “find additional violations.”

In September 2019, the EPA announced that investigation was continuing.

In today’s report, the Inspector General recommended that the EPA’s Office of Enforcement and Compliance Assurance consistently review and approve consent orders that are under its purview.

The EPA responded that PFAS actions are “a top priority” but since it didn’t explicitly state that enforcement officials would meet the report’s recommendations, the Inspector General determined the issue is still unresolved.

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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Comment period closing on MVP Southgate water quality permit; lawmakers speak out on project

The Haw and Dan rivers are in the crosshairs of the MVP Southgate project, a natural gas pipeline that, if state environmental regulators approve a permit, would cross the equivalent of four miles of sensitive waterways that contribute to the drinking water supply.

Mountain Valley, LLC, composed of NextEra Energy, EQT Midstream Partners and Con Edison, has applied for a water quality certification, also known as a 401, from the NC Department of Environmental Quality. The pipeline cannot be built without this key certification and a related approval, called a 404, from the US Army Corps of Engineers.

DEQ is accepting public comment on the 401 application through Friday at 5 p.m.

The MVP Southgate project is an extension of the main Mountain Valley Pipeline. It begins at a fracked gas operation in far northern West Virginia, near the Ohio and Pennsylvania borders, and travels through Virginia. From there, the southern extension would enter North Carolina near Eden, in Rockingham County, and continue 46 miles southeast before ending near Haw River, in Alamance County.

In total, the project would cross 207 streams, three ponds and  temporarily affect 17,726 linear feet of streams, 6,538 square feet of open waters, and 14 acres of wetlands; another 0.02 of an acre of wetlands would be permanently damaged. Nearly 14 acres of riparian buffers would also be affected. All of these impacts would occur within the Jordan Lake watershed.

These are only the projected impacts to waterways; there would be additional forest clearcutting and habitat fragmentation.

[perfectpullquote align=”full” bordertop=”false” cite=”” link=”” color=”” class=”” size=””]Written comments must be received by Division of Water no later than 5 p.m. on Friday Dec. 20, 2019. Mail them to 401 Permitting, 1617 Mail Service Center, Raleigh, NC, 27699-1617. Written comments may also be submitted via email to: [email protected] Please include “MVP Southgate” in the email’s subject line.[/perfectpullquote]

According to the company’s Draft Environmental Impact Statement, the pipeline would cross the Dan River, already injured by the 2014 coal ash disaster, as well as tributaries to the flood-prone Haw River, which is polluted with emerging contaminants such as 1,4-dioxane. The Haw also has problems with excessive sedimentation, which degrades water quality.

Construction of the MVP will use about 6 million gallons of water, but the DEIS does not pinpoint the source, which prevents federal regulators from assessing the environmental effects of those withdrawals.

In some locations, contractors would use horizontal directional drilling. This involves drilling beneath the waterway, and presents its own environmental risks to the drinking water supply and aquatic life. Intense pressure within the drill bore can result in a “frac-out,” industry lingo for a spill of water, clay and chemicals.

Yesterday, nearly 40 state lawmakers sent a letter to DEQ Secretary Michael Regan asking the agency to reject the company’s application. “It would cause tremendous sedimentation and erosion in streams, rivers and wetlands and destroy habitats for federally and state-protective wildlife,” the letter reads.

Lawmakers also invoked Gov. Roy Cooper’s Executive Order 80, which would reduce greenhouse gas emissions in North Carolina to 40 percent below 2005 levels by 2025. Natural gas contains methane, a potent greenhouse gas and driver of climate change.

“We do not believe that granting MVP’s application is appropriate. At a minimum, DEQ must request MVP to conduct a robust analysis of alternatives, including non-gas energy alternatives, such as wind and solar.”

Earlier this year, DEQ rejected MVP’s 401 application because it lacked critical information. And last year, DEQ Assistant Secretary Sheila Holman filed comments with the Federal Energy Regulatory Commission questioning the necessity of the project.



Dec18 MVP Letter (Text)

This week’s top stories on NC Policy Watch

1. Lawsuit seeks to restore voting rights to North Carolinians with felonies, strike down ‘Jim Crow era’ law

Dennis Gaddy missed out on the opportunity to elect the nation’s first African-American president because of his criminal record, despite re-entering society, paying taxes, taking care of his children and being a responsible and respected citizen.

After losing the right to vote for seven years, he’s now a lead plaintiff in a lawsuit challenging the statute that took away that “sacred” right, even after he served his time and “fully returned to society.”

The statute, enacted in 1971, continues to make it illegal for any person convicted of a felony to vote if they are still on probation or parole.

[Read more…]

2. The GOP’s latest gerrymander ought to be the last straw for NC

Republican legislative majorities took yet another stab at enacting new congressional districts last week (the state constitution gives the Governor no veto authority in this realm) and, for those who didn’t dig below the surface, it would have been easy to get the misimpression from some reports that things had gone well.

Raleigh’s News & Observer featured the headline: “Democrats could pick up seats in Congress under proposed North Carolina map.” NPR went with “Democrats Could Gain At Least 2 House Seats Under New N.C. Redistricting Plan.” The Washington Post headline read: “Democrats would likely gain two seats under new congressional map approved by North Carolina legislature.”

Now add to the mix the fact that these news stories were running at more or less the same time as other reports detailing the state Supreme Court’s decision to uphold a recent legislative overhaul of state Senate and House maps, and it would be unsurprising if many North Carolinians had come to the conclusion that the state’s chronically broken redistricting process had finally, mercifully, been repaired.

Unfortunately, nothing could be farther from the truth. [Read more…]

** BONUS READ: Court stops Congressional candidate filing pending gerrymandering litigation

3. Rep. Foxx skipped most closed-door impeachment proceedings

WASHINGTON — North Carolina Republican Rep. Virginia Foxx, a senior member on one of the committees leading the impeachment inquiry against President Donald Trump, has skipped the vast majority of closed-door impeachment depositions.

An analysis of the 15 closed-door deposition transcripts that have been released by House lawmakers shows that Foxx wasn’t listed as present at any of those proceedings. The transcripts from two additional depositions still haven’t been released.

As a member of the U.S. House Oversight and Reform Committee, Foxx was among the 47 Republicans who had access to the depositions. She and Republican Rep. Mark Meadows — a staunch Trump ally who also sits on the oversight panel — are the only two North Carolina lawmakers who had access to the proceedings. [Read more…]

4. How NC’s broken politics made a disaster of Medicaid again

Tuesday’s inevitable announcement of a delay in North Carolina’s Medicaid transformation is an unqualified disaster.

We will labor over who to blame. Republicans will castigate Democratic Gov. Roy Cooper, who vetoed the “mini-budget” funding transformation in August.

And Cooper will lambast the Republican state legislature, because of its dogmatic and, frankly, dimwitted refusal to accept a mostly federally-funded expansion of the government healthcare program, which should not be confused with Medicaid transformation.

Secretary of Health and Human Services Mandy Cohen, a Cooper appointee, acknowledged the drawbacks of indefinitely postponing the transformation to a managed care system, in which the state pays per-person costs rather than the current fee-for-service model.

If the delay impacts patients is unclear. It certainly affects patients far less than the legislature’s refusal to expand Medicaid.  [Read more…] Read more

Coal ash case: DEQ 2, Duke Energy 0

(Photo: David Erickson via Flickr)

An administrative law judge has again ruled against Duke Energy, determining that state environmental regulators acted appropriately in several aspects of requiring the utility to fully excavate its unlined coal ash basins.

Judge Selina Malherbe ruled on two motions yesterday:

  • DEQ provided adequate notice to Duke Energy prior to issuing the April 1, 2019 closure election decision;
  • DEQ properly limited Duke Energy to filing a single closure plan for each coal ash impoundment.

“The judge’s ruling confirms that DEQ acted openly and transparently as we made an informed decision on the closure of the coal ash impoundments,” said DEQ Secretary Michael Regan in a prepared statement. “DEQ stands by its determination to excavate coal ash impoundments across the state. We will continue to defend that decision as this case moves forward.”

Duke Energy issued a statement calling the ruling “disappointing.”

“We will continue working to protect people and the environment, within the rules as set forth under state law as we consider our next steps,” the statement read.

The order is limited to these two issues; Duke could appeal the ruling to the state Superior Court.

In April, DEQ determined that to best protect public health and the environment, Duke Energy must excavate 100 million tons of ash from its final nine impoundments at six plants: Marshall, Belews Creek, Allen, Cliffside/Rogers Mayo and Roxboro.

DEQ allowed the utility to ship the ash offsite to a lined landfill, send it to a facility for beneficial reuse, or build a lined landfill onsite.

Private lawsuits against Duke have already prompted the utility to fully excavate the ash from eight other plants in North Carolina. Basin excavation is complete at Dan River in Eden, the Sutton Plant in Wilmington, and Riverbend Steam Station in Gaston County.

DEQ has dismissed the utility’s concerns that the method would be too expensive, disruptive and environmentally risky. Duke has estimated full excavation would nearly double the cost of the $4 billion to $5 billion cleanup for the Carolinas — a figure disputed by environmental advocacy groups.

Duke Energy appealed DEQ’s decision to the Office of Administrative Hearings. So far, the judge has ruled in favor of the state.

In August, Judge Malherbe affirmed that DEQ had proper legal authority to elect the closure option for each coal ash impoundment. Malherbe dismissed several other Duke Energy claims:

  • That DEQ erred in its timing of selecting a closure plan before Duke Energy submitted its own, which the utility alleged shortcut the process established in state law;
  • That DEQ was wrong to use a comparative standard rather than the yes-or-no standard review of closure plans;
  • That DEQ also erred in determining that Duke must close all of its impoundments by Dec. 31, 2029.

Duke has appealed Malherbe’s August ruling to state Superior Court, and is considering doing the same for yesterday’s decision.

The utility has stated that its scientists have determined cap-in-place is safe for long-term storage. However, public monitoring records have shown that the unlined pits leak.

And even lined pits aren’t foolproof: According to correspondence dated March 12, 2019, Duke notified DEQ that a “potential action leakage rate exceedance” was identified for Cell 6 at the Sutton plant.

The Blue Ridge Environmental Defense League provided the document to Policy Watch.

In a letter, Geosyntec, a consulting firm hired by Duke, noted that the utility “is in the process of addressing” the exceedance.  Over 10 days in February 2019, Duke Energy contractors removed coal ash and protective cover soil in a 12,000-square-foot area.

Beneath the material, workers found two “primary geomembrane perforations” — tears in the liner. The tears were then repaired with five patches, according to the document, and again covered with soil.

A DEQ spokeswoman said no coal ash was released from the breach because of the second liner. The agency did not cite Duke for the primary  liner failure.