CHARLOTTE — Last Friday, The Chemours Company publicly agreed to cooperate with state agencies, signing off on a partial consent order issued by the North Carolina Department of Environmental Quality. But in a private letter sent from Chemours’ Charlotte law firm to the Department of Environmental Quality the same day, the chemical company took a decidedly more combative tone. The letter, acquired by Port City Daily, accuses the DEQ of “inexplicable secrecy,” as well as “legally improper” and unconstitutional action.
In public: cooperation from Chemours, a win for the DEQ
On Friday, Sept. 8, Bladen County Superior Court Judge Douglas Sasser heard arguments from attorneys for the DEQ and Chemours. According to Leslie Johnson, the County Attorney for Bladen who was present at the hearing, Judge Sasser was visibly frustrated at both parties.
“Judge Sasser essentially said, ‘y’all aren’t communicating, you’re not talking.’” Johnson said. “He booted them into a room and told them not to come out until they had worked things out.”
Several hours later, Johnson said, attorneys had reached a deal –- or so it seemed.
The consent order required Chemours to stop the discharge of two additional chemicals, byproducts of the material Nafion known as PFESAs (the chemicals are similar in several respects to GenX). The order also required Chemours to share proprietary information about its manufacturing practices, closely guarded secrets that state agencies needed – in essence – in order to know what they are looking for and how to test for it. (You can read the complete order at end of this story.)
It seemed like a victory – or at least a partial victory – for the DEQ and the Department of Health and Human Services (DHHS), which had been put under pressure to make headway with Chemours by a group of Republican Senators and the recently convened Environmental Review Committee.
In private: strong accusations from Chemours, trouble for the DEQ?
However, in a private letter sent to William F. Lane, general counsel for the DEQ, Chemours’ attorney R. Steven DeGeorge outlines several stark accusations against the DEQ.
Among other claims, DeGeorge accuses the DEQ of acting with “inexplicable secrecy,” contradicting fellow state agents at the DHHS who have said drinking water remains safe, and violating Chemours’ constitution rights.
The partial consent order issued to Chemours by the DEQ explicitly leaves open the potential for future fines – including for groundwater contamination – and the regulation of chemicals beyond PFESAs and GenX. It appears that several of Chemours’ accusations, as framed by DeGeorge, are likely pre-emptive arguments against such measures, and could be understood as a preliminary legal defense against them.
The complete letter appears below. Here are the arguments, in brief:
- The DEQ has not proven it has the authority to demand that Chemours stop dumping Nafion byproducts in its “PFESA cease and desist order”
- The DEQ failed to give Chemours proper notice; the letter cites state law requiring 60-day-notice to modify any permit
- The DEQ did not adhere to state law in providing public notice and following other procedural guidelines for issuing the PFESA order
- The DEQ may have violated Chemours’ constitutional rights; the letter claims the DEQ’s processes are “so fundamentally flawed as to violate the due process guarantees of the (14th Amendment of the) US Constitution”
- The DEQ engaged in “inexplicably secrecy” is refusing to comply with public records requests made by Chemours
- The DEQ has had information on PFESAs since 2015 and has no basis for its claims it was misled or misinformed by Chemours
- The DEQ was asked by DuPont in 2002 for guidance in how to handle fluorocarbon byproducts – like PFESAs and GenX – and took no action
- The DEQ’s actions are “directly at odds” with the Department of Health and Human Services assertions that there is no public health emergency and that the water is safe to drink
- The DEQ’s “absolute ‘zero’ discharge limitation is without precedent”; the letter suggests that no state permit holder has been held to such a standard for an unregulated chemical
Send comments and tips to Benjamin Schachtman at email@example.com, @pcdben on Twitter, and (910) 538-2001.