Tuesday, February 27, 2024

UN calls out Chemours, partner companies for human rights violations associated with PFAS

The U.N. Special Rapporteur Marcos Orellana sent letters of allegations to Chemours, DuPont, Corteva, the U.S. and Netherlands over alleged human rights violations from PFAS contamination.

SOUTHEASTERN N.C. — The United Nations is publicly admonishing the U.S. and companies manufacturing PFAS for its role in creating a global PFAS contamination problem, infringing on human rights.

READ MORE: Advocacy team urges UN to take action against PFAS pollution, citing human rights violation

Six months ago, local nonprofit Clean Cape Fear filed a complaint with the U.N. Human Rights Commission alleging Chemours, and its partner companies DuPont and Corteva Agriscience, have violated Cape Fear residents’ right to clean drinking water. It added the company has provided insufficient public information and lacked accountability for polluting the water, air and ecosystem for decades.

In response, the U.N. Special Rapporteur Marcos Orellana responded: “We are further alarmed by the companies’ blatant disregard for human rights and environmental protections.” He added the companies have “not taken measures seriously” to rectify the pollution.

Fayetteville Works, located along the lower Cape Fear River, is owned by Chemours, previously owned by DuPont. It has been releasing a variety of toxic PFAS into the environment for more than 40 years, jeopardizing the health of residents living within a 100-mile radius. Contamination has also been found in private wells in more than a 10-mile radius to the plant. 

It didn’t begin to remedy the situation until Cape Fear River Watch and North Carolina Department of Environmental Quality issued a consent order in 2019 to control air emissions. 

Released to the public on Friday, five letters were sent Sept. 25 to Chemours, DuPont, Corteva, the U.S. government and the Netherlands — for shipping GenX waste stateside — seeking additional information on the measures each has taken to comply with international environmental laws and human rights standards. The letters also are asking for details on steps being taken to remedy the ongoing pollution, measures taken to ensure the health of impacted communities and how each entity sent a letter of allegation intends to take responsibility for the adverse impacts of PFAS.

In its initial 36-page filing, Clean Cape Fear, along with assistance from U.C. Berkeley Environmental Law Clinic, states PFAS contamination of drinking water sources obstructs residents’ right to clean water, which in turn impacts rights to life and health. The burden of toxic chemicals also violates residents’ rights to bodily integrity.

The U.N. Human Rights Council has several special procedures for addressing alleged violations Orellana explained to Port City Daily. One such action is letters of allegation. Orellana, appointed in August 2020 and stationed in Washington D.C., is the special rapporteur tasked with monitoring and reporting issues concerning hazardous substances and waste.

When he receives information, such as that sent by Clean Cape Fear, of alleged human rights’ violations, he reviews the submission for credibility then performs fact-checking.

“If satisfied, the sources are credible — it’s not a definitive finding but more likely than not — then I may draft a letter of allegation to put forward to the government to reply,” Orellana said. 

The letters report the allegations, express concerns and ask questions, in which the receiver is expected to answer. After 60 days of issuing the letters to respective recipients, allowing the entities to respond, letters are then made available for the purpose of informing the public and exposing the allegations.

“In a way, the bread and butter of human rights work is that it asks the government for information on alleged human rights violations,” Orellana said. “It means the government is expected to engage the special rapporteur and answer the questions.”

Orellana calls out DuPont and Chemours for “significantly” contributing to the widespread contamination of the planet with toxic synthetic PFAS, often referred to as “forever chemicals” for their inability to degrade. He also said the companies withheld the amount of pollution discharged from its facility from the public and continued to deny the toxic harms associated with PFAS, all the while profiting from its products.

Clean Cape Fear’s original document mentions a lawsuit filed in October 2020 by local nonprofits against the Environmental Protection Agency. Its goal was to obtain health impact studies for 54 PFAS attributed to Chemours, based on studies from the company, the Food and Drug Administration, and Brunswick County. Judge Richard Myers sided with the EPA March 30 agreeing the federal agency is already conducting studies with its National PFAS Testing Strategy — even if it’s not in the process the nonprofits were asking for.

The plaintiffs submitted an appeal in August and are still awaiting a decision, yet Orellana’s letters state it’s critical for these studies to be performed for resident awareness of potential harm.

Orellana’s letter specifically refers to the residents living around the Cape Fear River in southeastern North Carolina, but also mentions DuPont and Chemours’ locations in New Jersey and West Virginia, as well as its international facilities, for global pollution. He indicated scientists have found PFOA — which is a form of PFAS — anywhere in the world they have tested for it.

Studies have linked PFAS exposure to infertility, miscarriages, lung disease and cancers.

DuPont has been aware of the health risks of PFAS since it conducted a study in the 1960s and ‘70s, but the Cape Fear residents specifically only became aware of the pollution five years ago.

“GenX, the 6-carbon PFAS compound from Fayetteville Works that Fayetteville Works continues to produce, is especially mobile and rapidly reaches groundwater,” Orellana’s letter details. “It is also more difficult to filter GenX out of water than other long-chained PFAS compounds.”

The letter targets the Environmental Protection Agency and North Carolina Department of Environmental Quality for falling short to provide information “to prevent harm and seek reparation.” It also accuses the companies of skirting accountability.

In July 2015, DuPont transferred its performance chemicals business, which included the manufacturing of PFAS, to Chemours. When the company spun off, it took on a portion of the environmental liability and litigation pending against DuPont.

In 2017, E.I. DuPont de Nemours and Company merged with Dow Chemical Company, resulting in a new business, DowDuPont, which later split into three: Dow, DuPont, and Corteva Agriscience.

The company restructuring led to disagreements around liability and “added a substantial layer of difficulty for those seeking remediation and compensation,” Orellana wrote. He further stated it appears to be a tactic to evade liability for PFAS contamination.

In 2021, DuPont, Chemours and Corteva announced a cost-sharing agreement worth $4 billion to settle lawsuits associated with contamination and established an additional $1 billion escrow for future liabilities.

Compared to the actual costs and damages residents endure, the price is too low, according to Orellana.

“Financial analysts estimate Chemours’ financial exposure could be as high as $5.5 to $6 billion in litigation filed by the company’s shareholders,” the letter states.

This year DuPont, Chemours and Corteva offered a $1.2 billion settlement of claims from water providers in a class action, though Cape Fear Public Utility Authority is not involved. 

CFPUA sued DuPont and Chemours in 2017 for punitive damages and filed another suit in 2023 to cover the $64 million it’s had to pay for PFAS treatment; both lawsuits are still pending. Some estimate $400 billion will be needed to adequately address clean up and protection of national drinking water, the letter continues.

Meanwhile local residents have taken on the cost burden associated with PFAS contamination, such as increased utility bills for CFPUA to install its granular activated carbon filters to treat the toxic chemicals out of drinking water.

Some residents have also had to install their own private filters, which can cost up to $200 and filters need to be replaced every six to 24 months. Many cannot afford the cost and maintenance, “hampering their access to safe drinking water,” according to Orellana’s letters.

“We are especially concerned about DuPont and Chemours’ apparent disregard for the wellbeing of community members, who have been denied access to clean and safe water for decades,” the letter states. “This is particularly apparent by their purposeful suppression and concealment of information on the toxic character of PFAS.”

The responses — or lack thereof

Those accused of allegations are intended to reply to the questions addressed in the U.N. letters, such as measures being taken to prevent further harm. The main goal of the process is public awareness.

Chemours, Corteva and the Netherlands have offered responses to the U.N.’s letters, while DuPont and the U.S. have not.

“Clearly, the UN recognizes international law is being violated in the United States,” Clean Cape co-founder Emily Donovan told Port City Daily. “We find it profoundly troubling the United States and DuPont have yet to respond to our complaint to the UN or to the UN’s allegation letters.”

Orellana made a public request for more information such as steps taken to address contamination, compliance with UN principles, the valuation of remediation, measures taken to ensure safety and prevent negative health impacts and initiatives to ensure environmentally sound disposal. Chemours responded Nov. 21 — three days before its 60-day deadline expired.

Chemours alleges the use of fluorinated polymers, created by GenX, is a necessity for the medical, automotive, electronics, aerospace, energy and semiconductor industries.

The company claims its work is necessary to ensure its role in supply chain manufacturing is carried out in a manner “consistent with international principles.”

Orellana said the narrative to use PFAS as a critical component continues to spread misinformation and dismisses the significant impacts of the PFAS used.

Claudia Polsky with Berkeley Environmental Law agreed. She said the company needs to stop “parroting the industry’s false narrative” about PFAS being essential to the country’s clean energy goals. 

Chemours, which referred to itself as a “relatively new company,” denies any risk of cancers or liver disease attributable to exposure to GenX. Chemours also questioned the scientific basis for the EPA’s new health advisory levels of 10 parts per trillion for GenX, “a level that would have been beyond the detection limits of modern analytical chemistry not many years ago,” according to the company.

“Chemours does not cite any peer-reviewed science or epidemiological studies to show that GenX or the newer PFAS it produces are safe, because it has refused to fund any independent science,” Donovan said. “Instead, it is erroneously treating this data gap as evidence of safety.”

The company points to the actions it’s taken to eliminate PFAS discharges, costing “hundreds of millions of dollars” by destroying 99.99% of air emissions at Fayetteville Works and issuing alternative drinking water for people with private wells with GenX over 10 ppt. It also installed a $100-million 1-mile barrier wall to capture and treat PFAS at its facility prior to discharging into the river.

Orellana’s letter also said he is “shocked” by the company’s desire to expand production, which was announced last summer. Chemours announced last August it would expand its production for the domestic semiconductor industry.

READ MORE: ‘Dog and pony show’: State officials, some local representatives and community rally against Chemours’ latest expansion

Chemours responded the proposed expansion includes designs for emission control to increase manufacturing without subsequently creating more pollution. Its submitted air permit in regard to expansion to the NCDEQ is still under review.

“This is classic corporate gaslighting,” Donovan said. “First, Chemours is not ‘a relatively new company’ — its high-level employees are experienced DuPont executives. Second, Chemours has focused its response on GenX, when its PFAS pollution along the Cape Fear River encompasses many other PFAS chemicals.”

Corteva’s response letter states it’s a standalone agriculture company and has never made, used or sold PFAS compounds. It also says, due to ongoing litigation, it cannot provide a complete response to all allegations in Orellana’s letter.

The Kingdom of the Netherlands said in its letter, along with Germany, Denmark, Norway and Sweden, it has drafted a proposal to restrict the use of PFAS in Europe.

Polsky said the U.S. needs to follow suit and not only block Chemours’ expansion but regulate PFAS as a class.

In September, the EPA approved the Netherlands Chemours to import up to 4 million pounds of GenX to Fayetteville Works for recycling and reuse through Sept. 7, 2024. Due to public outcry and letters sent from New Hanover and Brunswick counties, as well as North Carolina Gov. Roy Cooper, shipments have been halted at least until Dec. 1.

CATCH UP: EPA authorizes 4M pounds of GenX to be imported to NC from overseas

The Netherlands said it follows all proper international procedures for transboundary shipments and that it’s also negotiating with the European Union to further strengthen restrictions on movements of waste.

The country has also submitted a proposal to the European Chemicals Agency to restrict PFAS as a class, as opposed to individual compounds, to avoid the replacement of one hazardous PFAS with another. This happened when Chemours was created from DuPont and resulted inGenX’s existence. DuPont introduced the chemical around 2009 to replace PFOA.

“We remain preoccupied that these actions infringe on community members’ right to life, right to health, right to a healthy, clean and sustainable environment and the right to clean water, among others,” Orellana’s letter states.

The letters further outline all necessary measures to halt any alleged violations and prevent them happening again.

“We hope the UN’s action will induce shareholders to bring Dupont in line with international human rights law,” Polsky said. “Here, we note that this matter is a rare case of the Human Rights Council sending allegation letters to a transnational corporation, rather than solely to national governments. We also hope that the risk of being named a violator of international human rights laws will give EPA the political courage to do what it must to curb toxic PFAS pollution in North Carolina and nationwide.“

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