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Friday, May 17, 2024

Chemours, EPA oppose Cape Fear advocates’ intervention in lawsuit

SOUTHEASTERN N.C. — A group of locals and nonprofit organizations’ efforts to participate in a lawsuit are being challenged by two entities who do not want their involvement.

Chemours filed litigation against a federal environmental agency questioning its recent health advisory; locals want to be included in the arguments to provide first-hand experience dealing with contaminated drinking water. Both Chemours and the Environmental Protection Agency filed motions opposing intervention, sent to the Third Circuit in December. 

READ MORE: Nonprofits request ‘community voice’ be heard before the courts in Chemours, EPA lawsuit

Now the Cape Fear advocates are awaiting an answer from the courts as to whether they are allowed to participate.

In June 2022, the Environmental Protection Agency issued a health advisory for GenX, setting recommended limits to 10 parts per trillion. It’s 14 times lower than the North Carolina Department of Health and Human Services’ provisional advisory of 140 ppt.

Chemours then filed a suit alleging the EPA’s recommendation was “scientifically unsound.”

Cape Fear River Watch, Center for Environmental Health, Clean Cape Fear, Democracy Green, Natural Resources Defense Council, North Carolina Black Alliance, Toxic Free North Carolina, Dr. Kyle Horton, Lacey Brown, Harper Peterson, Michael Watters and Debra Stewart decided to act in favor of the advisory and asked to be heard in the case.

On Jan. 13, attorney Bob Sussman, representing the organizations and individuals, submitted the latest brief in response to Chemours’ pushback. 

“Not entirely sure why to be quite honest,” Sussman told Port City Daily about EPA’s opposition. “Their basic argument is, I think, the consent order is just irrelevant to the validity of the health advisory and so we have no interest in defending the advisory.”

According to both EPA’s and Chemours’ oppositions, the “interveners” fail to demonstrate a legal interest that would be harmed by the litigation. In essence, they’re saying the group has no right to participate.

Federal Rule of Appellate Procedure 15(d) authorizes parties to intercede in federal circuit courts of appeals but is not clear on the circumstances warranting intervention. Parties wishing to participate have to prove a legal standing in the litigation.

Though not legally enforceable, EPA’s health advisories inform the public of a contaminent’s possible hazards. 

The nonprofits merely want the information to use when making personal health decisions, which the EPA said does not constitute intervention. The advisory can be used to do just that, without being a part of the suit, EPA states.

“Movant-Intervenors already have the GenX Advisory and thus already have access to the scientific and technical information contained within it,” EPA’s motion states.

Chemours’ motion also makes the point that the EPA advisory impacts all states and residents, not just the Cape Fear region. Therefore, it claims the group’s interests are too specific to be allowed to interfere.

However, Sussman and his represented entities argue since the 2019 consent order, between North Carolina Department of Environmental Quality, Chemours and Cape Fear River Watch — designed to regulate pollution from the company — includes language about the advisory, it’s linked to the outcome of this case. 

The consent order requires Chemours to provide alternative drinking water to residents with contaminated wells at 140 ppt or “any applicable health advisory, whichever is lower.” 

“If Chemours prevails, it may refuse to provide replacement water for private wells with GenX,” the brief states.

Recent sampling by Cape Fear River Watch reports detected levels of GenX between 10 and 139 ppt in 2,566 private wells within New Hanover, Brunswick, Pender, Columbus, Cumberland, Bladen and Robeson counties. Chemours would not otherwise be required to pay for clean water prior to the health advisory, which is why it’s being opposed, according to Sussman.

“Chemours has provided and will continue to provide replacement water supplies approved by the State for users of wells with HFPO Dimer Acid concentrations above 10 parts per trillion, regardless whether the Health Advisory is ultimately invalidated,” according to the company’s opposition.

The consent order mandates Chemours offer hookups to municipal water or whole-house filtration to the owners of impacted wells. When a public water supply is installed, the order ascertains Chemours should be liable to pay for any water bills for public utilities for 20 years, up to $75 per month per household.

Providing these solutions to all current well owners with contaminated water could cost the chemical company up to $238 million — $46 million for paying water bills and $192 million to cover the cost to municipal connections.

“That places in perspective what this issue is all about,” Sussman said. “They don’t like the health advisory and want it to be set aside. If that happens, people with contaminated wells will not get the remedies that would be available under the health advisory. It would also save [Chemours] a significant amount of money.”

Chemours has pointed to the use of under-sink reverse osmosis units as an appropriate replacement solution. However, CFRW executive director Dana Sargent notes in a declaration of support to intervene in the case that RO is not the most efficient option.

This only covers up to three under-sink units, Sargent maintains, which limits protection to water usage in a household. Whole-house filtration is preferable because it would include showers, laundry, and outdoor hoses.

The RO does not provide a new source of water, merely treats what’s coming in and also produces water waste, which gets cycled back into the environment. Water sourced from a treatment facility, as opposed to the RO, would avoid adding pollution back into the supply because it filters out contaminants ahead of time. 

“You can’t put reverse osmosis in the shower or outside where you’re gardening produce,” Sargent told PCD. “I’ve heard people say, ‘So I’ll just tell my guests to pick this bathroom because that one is toxic?’”

Chemours petitioned the U.S. Court of Appeals for the Third Circuit on July 13, 2022, to legally force EPA to reassess its health advisory on GenX, calling its evidence “flawed.”

The coalition of activists first filed a motion to intervene Aug. 12. They hope the show of support will push the judge to drop Chemours’ case.

The case will not go to trial proceedings but will. be based solely on evidence and briefs submitted to the judge. A date for when a decision will be made is not yet known. 

A spokesperson for Chemours said the company has no further comment on the opposition, aside from what’s been filed with the court.


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