Chemours agrees to analyze Cape Fear River sediment in updated legal agreement with DEQ, Cape Fear River Watch

NORTH CAROLINA (WECT) - The N.C. Department of Environmental Quality (DEQ) on Wednesday filed a revised legal agreement with Chemours to address concerns about toxic chemicals from the company’s Fayetteville Works facility, including GenX and other Per- and polyfluoroalkyl substances (PFAS) released into the air and water for decades.

The Cape Fear River Watch partnered with DEQ against the Chemours Company.

The updated agreement will now require Chemours to report monthly GenX air emissions, analyze PFAS buildup in river sediment, and provide filtration systems in certain public buildings for drinking water fountains and maintain them for 20 years.

Ongoing research at UNC Wilmington discovered that GenX accumulates in river sediment and may later release into the environment. This means that even if the company has stopped releasing chemicals, the stored GenX could still make its way into drinking water.

“What we’re forcing the company to do is to go in and do proper analysis of that sediment to determine if there is some lingering concentrations there, and if so, they will be required to provide a plan to DEQ on how they would remediate those potential problems," said N.C. DEQ Secretary Michael Regan in an interview with WECT.

Chemours must also now measure its contribution to PFAS contamination in downstream public utilities' water, give utilities an accelerated plan to reduce PFAS pollution in the Cape Fear River, and remove 99% of contamination to surface and groundwater from a site's old outfall.

The legal agreement is a consent order, which is a legally-binding, voluntary agreement between two or more parties to a dispute. It was filed in Bladen County Superior Court on Wednesday and is awaiting a court date for the judge to consider and sign it.

“People affected by GenX and PFAS pollution in the Cape Fear River basin deserve real relief, and this order provides that relief,” said Secretary Regan in a statement. “We listened to the comments from the community, from leaders and from public utilities and have established a strong path forward to protect water quality and public health.”

The updated consent order comes about three months after the first version, which garnered more than 380 public comments as well as pushback from the City of Wilmington, New Hanover County, and the Cape Fear Public Utility Authority (CFPUA).

“We’ve done a lot to take into account what the citizens and those downstream have concerns about, and they are incorporated in this order, and we think a very strong order has now been strengthened," said Regan.

New language was added to the consent order to confirm it does not release Chemours from any other lawsuits, and it does not prevent DEQ from taking future enforcement action.

In the consent order, Chemours denies breaking any laws, regulations or permits, and only agreed to it “to avoid the expense, burden and uncertainty of litigation and to address community concerns about the Facility.”

WECT reached out to Chemours for comment, and a company spokesperson released an emailed statement which reads in part:

"In May 2018, Chemours announced a goal of decreasing its emissions of GenX and other PFAS at Fayetteville Works by 99% or greater by the end of 2019. We believe the proposed Consent Order is a complement to that commitment—providing a regulatory framework, oversight, and continued transparency of progress on our commitments.

"Chemours has continued to adhere to the emissions control measures of the proposed Consent Order throughout the public comment period and as DEQ has been considering the comments. In those three months, we have completed the installation of a carbon adsorption system to reduce air emissions of GenX compounds and other PFAS from the Vinyl Ether North unit at the Fayetteville Works site. The Consent Order required installation by the end of December 2018 and control efficiency of at least 93% by March 31, 2019. System installation was completed before the end of December, has been operational since and has been shown to have an efficiency of 93.9%.

“DEQ’s decision to sign and seek court approval of the proposed Consent Order is a positive step for all stakeholders. It provides the framework for implementing specialized state-of-the-art emission control technology that will make the Fayetteville plant a best-in-class chemical manufacturing facility for air and wastewater emission control. It also provides for implementation of robust remediation programs and the provision of alternative drinking water supplies for a large number of homeowners with private wells, most of whom have existing water supplies that do not exceed any health based advisory.”

"The order will require Chemours to address all sources of PFAS at the facility to prevent further impacts to air, soil, groundwater and surface waters," according to a DEQ press release. "It will be implemented under the supervision of DEQ, Bladen County Superior Court, and, for certain portions, Cape Fear River Watch. The order does not prevent other parties from taking action against Chemours."

The Southern Environmental Law Center (SELC), which represents Cape Fear River Watch, emailed a statement supporting the updated consent order:

“Cape Fear River Watch continues to stand up for clean water for all North Carolinians,” said Cape Fear Riverkeeper Kemp Burdette. “This consent order is 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."

“From the beginning, our focus has been to stop Chemours’ pollution of our air, water and soil, and to hold the company accountable for contaminating the river, groundwater, and communities,” said Geoff Gisler, senior attorney at the Southern Environmental Law Center. “This order will result in cleaner air, a cleaner Cape Fear, and cleaner drinking water for families nearby and downstream.”

The first consent order, filed in November, required Chemours to pay a $12 million civil penalty, the largest in DEQ history. The company also agreed to reduce GenX air emissions by 99% by Dec. 31, 2019 and control all PFAS through a thermal oxidizer.

Chemours also has to provide permanent drinking water supplies to those whose wells tested positive for GenX above the 140 parts per trillion threshold. Permanent drinking water through the installation of three under-sink reverse osmosis filters must also be installed for people whose wells test above 70 ppt for combined PFAS, or above 10 ppt for any one PFAS, including GenX.

“In this order, not only are homes perfectly suitable candidates for this opportunity, but we’ve expanded it to public buildings like schools and such," said Regan. "There will be a good deal of testing that occurs in these communities. Based on those testing results, that will determine whether an individual home, and/or a public school is a candidate some sort of water filtration system or some permanent water solution.”

After the first consent order was publicly released, CFPUA expressed its disapproval that downstream users are not given fair treatment, it does not go far enough to protect drinking water, and it does not help utilities provide clean water to customers.

The new consent order seems to address some of these concerns with the new public utility requirements.

Shortly after the release of the updated consent order, CFPUA said it is reviewing the document.

“We look forward to working with our partners at NCDEQ to determine the best way to ensure our community has access to safe drinking water and that polluters such as Chemours are held to account, legally and financially,” said Jim Flechtner, CFPUA executive director.

CFPUA and Cape Fear River Watch both previously emphasized that the consent order is a “first step” toward cleaning up PFAS pollution.

“If the judge signs off on this consent order, this company will pay the largest fine to the DEQ in NC history," said Regan. "They’re going to spend over 100 million dollars looking at ways to eliminate air emissions. They’re going to spend millions of dollars cleaning up the mess that they made.”

This article has been updated to reflect new statements from Chemours, CFPUA, SELC, and Cape Fear River Watch.

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