SOUTHEASTERN N.C. — Nearly 50 Cape Fear locals and activists, all affected in different ways from toxic pollution, crowded a Wilmington courtroom Tuesday morning to hear arguments on litigation involving PFAS testing.
While the judge did not make a decision after the hour-and-a-half hearing, it was the final step in an ongoing lawsuit against the Environmental Protection Agency.
A coalition of nonprofits sued the federal agency for not fulfilling its petition. They asked the EPA to require Chemours to fund studies on 54 chemicals — identified as being in the air, water, wells and blood of residents — coming out of its Fayetteville Works facility.
Though the EPA did “grant” the petition — after first denying it, then reconsidering — the nonprofits said it wasn’t what they had hoped for. Only 3% of its request — 7 of the 54 PFAS — was actually approved for “initiating a testing order” by the federal agency.
At the U.S. District Court for the Eastern District of North Carolina on 17th Street, attorney Bob Sussman — representing Cape Fear River Watch, Center for Environmental Health, Clean Cape Fear, and Toxic Free NC — argued on behalf of the residents impacted by contaminated drinking water.
Wilmington native Judge Richard Myers, a Trump-era appointee, presided over the hearing and asked some tough questions from both parties.
“This is complicated, with lots of moving parts and not a whole lot of case support,” Myers said.
In October 2020, the coalition of community and environmental justice groups petitioned the EPA to use its authority under the Toxic Substance Control Act and order testing on 54 PFAS. The request demanded Chemours, which has been dumping toxic pollutants into the Cape Fear River for four decades, fund the studies.
Three months later, the EPA denied the petition, but the groups asked for reconsideration in March 2021. At the end of 2021, the federal agency reversed course by granting the petition request. However, the coalition considered the move a denial, since it would only require limited testing on 7 of the 54 PFAS.
As a result, the groups pursued litigation in January 2022 against the EPA to do more. While the case was initially filed in Oakland, California — headquarters for the Center for Environmental Health — it was transferred to the Eastern District of North Carolina in March and assigned to Myers.
“We knew when we went in the judge was not on our side,” Sussman said to PCD after the hearing. “I knew it was going to be a tough hearing. … Our hope was he would listen to reasoning, and we would have a meaningful back and forth with each other and I think to some extent that occurred.”
Advocates for the plaintiffs, including Cape Fear River Watch executive director Dana Sargent, were in attendance. Sargent said she’s choosing to remain “hopeful” for a positive outcome.
“I was discouraged by some of the leading questions the judge seemed to come with, but I was encouraged by our lawyer who seemed to educate him,” Sargent said. “It seemed like [the judge] was paying attention and did some thinking.”
The EPA, moving to dismiss the case entirely, argued it granted the petitioners’ request for testing by implementing its PFAS Strategic Roadmap as a “nationalized” approach to the issue.
The strategy sets timelines for the EPA to take action to implement new policies and hold polluters accountable. It was enacted in 2021 and intended to cover four years of increasing investment in research, restricting PFAS compounds and accelerating the cleanup of PFAS sites.
Sussman said the petition had a specific purpose not being addressed by EPA’s strategy, which called for 24 testing orders by 2021; there are now two.
Attorney Elwood Lee, representing the federal agency, opened his arguments saying the petitioners “just can’t take yes for an answer.”
In response, Sussman said the groups want to know specifically about the 54 PFAS identified that residents in the Cape Fear River basin have been exposed to and its broad strategy is not enough.
“This is ground zero for PFAS pollution in the United States,” Sussman said in court. “No area has been hit harder.”
The results of a recent GenX study, done by N.C. State University, shows individuals living in New Hanover, Pender and Brunswick counties, as well as those living near Chemours’ Fayetteville Works site in Bladen, Cumberland and Robeson counties, have higher levels of PFAS in their blood than the U.S. average.
“Residents are asking, ‘How has my health been impacted?’” Sussman questioned.
Forty-one of the 54 PFAS has little to no data or testing results associated with long-term health risks, leaving exposed people clueless as to the lasting impacts the chemicals can have on their health.
“Where in the statute is the EPA obligated to be the answer to those questions?” Myers asked.
He also questioned Sussman’s approach to the statute requiring EPA to grant the petition. He noted the law obligates the agency to “initiate proceedings,” which he said it has done.
“How is that a refusal to begin the process?” Myers asked. “They agreed to do that in a scientifically appropriate way. How do I see that as a denial?”
The statute does not require EPA to perform the tests as explicitly stated by the petitioners, Myers added.
“There’s a category of wishes and a category of starting,” Myers said. “The EPA is allowed to use their best judgment to proceed but they’re not required to do it in your way.”
Lee said the petition was the “key driver” for the EPA to initiate its PFAS testing strategy, announced in October 2021. The agency was “fully on board” with PFAS testing, he said, and with providing answers on the health impacts chemicals have on impacted communities.
“But there’s a disconnect,” he said. “They want to fill that information gap in a specific way, but the EPA has a different plan on how to fill that.”
Myers asked Sussman if the petition should be reviewed as one petition or 54 separate. The EPA considers it one but Sussman said each should be considered.
When Myers asked if it’s true there are at least 24 PFAS requested for testing by the petitioners that are not addressed in EPA’s strategy, Lee said they do not fall into the agency’s “working definition” of PFAS. Scientists have urged the EPA to broaden its definition, which it says it’s “evolving” to include additional chemicals.
“It remains to be known if they’ll be included,” he said.
Sussman said by ignoring the petitioners’ specific request, and claiming to have granted it, “makes the statute meaningless and the remedy is empty and lacking with effect.”
The organizations are within their rights to ask for the testing, under section 21 of the 1976 Toxic Substances Control Act. It allows the public to petition the EPA for further action, including issuing testing rules and orders under section 4.
“It’s one thing to say the agency feels our pain and has concerns, but it doesn’t mean the testing strategy is the likely answer to questions our petition poses,” Sussman said. “I’m struggling to understand how 97% that’s not addressed is considered a grant?”
EPA’s strategy is a decades-long approach with no guarantee the results of the 54 PFAS residents are exposed to will ever be unearthed, Sussman argued.
He pushed for a “de novo” hearing, meaning the opportunity to present evidence and scientific experts to prove the epidemiological studies are warranted. The EPA says they are not needed and the judge did not think that a de novo hearing was necessary.
Myers questioned what additional information would be needed that isn’t already included in the submitted briefs.
A decision on the lawsuit is pending and has no timeline for a resolution.
“He does not have a reputation as a judge who moves quickly,” Sussman said after the hearing. “I think he knows enough about this case to know he needs to be careful. I think he’s going to take his time; whether it’s three months, five months, I don’t know.”
After the hearing, a press conference was held at the Hotel Ballast in downtown Wilmington, hosted by the plaintiffs. Speakers ranged from doctors to nonprofit leaders and residents facing medical conditions with unknown causes. A bus of roughly 15 Fayetteville residents drove down to show support for the hearing and press conference, as well.
Sokoto House co-founder Vance Williams said contamination is impacting marginalized communities disproportionately, with what he called “structural violence.”
Dr. Kyle Horton, who ran for Congress in 2018 and hoped to be the first female physician in Congress, expressed the disappointment medical professionals face having no sound evidence to answer basic health questions for patients.
Dr. Arthur Bowman, from the Center for Environmental Health, said the plan is to make the EPA “eat their words.”
“A dismissal is a refusal of access,” she said. “It’s not honoring the commitments to environmental justice.”
Those impacted locally aren’t the only ones in support of holding the EPA further accountable for more PFAS testing.
Four separate letters of support were sent to EPA director — and former N.C. Department of Environmental Quality secretary — Michael Regan in 2021.
In June members of Congress — Deborah Ross, Madison Cawthorn, Kathy Manning, Alma Adams, David Price, Richard Hudson and G. K. Butterfield — mailed a correspondence asking the federal government to grant testing.
That December more than 120 residents and organizations nationwide also mailed a letter of support to the EPA. Their statement said the requested testing would provide more answers than the EPA’s “PFAS Roadmap Strategy” — announced Oct. 18, 2021 — to include epidemiological and mixture studies.
“By granting the petition, you would demonstrate your commitment to holding polluting companies responsible for understanding the health impacts of long-term PFAS contamination that they caused. This would be an important first step in meeting the needs of devastated communities and provide the ‘real solutions’ and ‘accountability’ you promised to deliver on October 18,” the letter stated.
Also in December 2021, a letter was sent and signed by 50 scientists around the country. Another was mailed from local government officials, signed by Wilmington Mayor Bill Saffo, former New Hanover County commissioner chair Julia Olson-Boseman and former CFPUA chair Wesley Corder.
The group of science professionals stated the federal agency’s PFAS roadmap does not provide sufficient information for the communities most impacted by specific chemicals coming from Chemours.
“Requiring Chemours to fund the testing as requested in the TSCA petition will provide a wealth of relevant data for these communities at no cost to US taxpayers, and will contribute important information to guide risk assessment and management decisions for all PFAS,” the letter states. “We suggest that EPA should redirect its testing strategy to set priorities for research based on its benefits in helping communities, health researchers, and medical professionals understand the health impacts of long-term PFAS pollution.”
A letter penned by the Cape Fear River Watch, Clean Cape Fear and the Center for Environmental Health is making its way to President Joe Biden’s desk. The goal is to urge the president to compel the EPA to hold Chemours accountable.
On Monday, the EPA announced $61 million from the trillion-plus-dollar Bipartisan Infrastructure Law passed in 2021 would be allocated to address PFAS in contaminated drinking water in North Carolina. Funds will be made available to communities through grants.
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