Tuesday, June 6, 2023

NCDEQ issues expanded consent order, Chemours and CFPUA respond

The revised consent order between the North Carolina Department of Environmental Quality, Cape Fear River Watch, and The Chemours Company provides additional requirements based on public comment. But it may not add enough support for downstream water filtration to satisfy local elected officials or utilities.

Chemours headquarters in Wilmington, Delaware. A DuPont spin-off, Chemours has agreed to pay the state a total of $13 million in a recent consent order, in which the company admits to no wrongdoing. (Port City Daily/Courtesy Google Maps)
Chemours headquarters in Wilmington, Delaware. A DuPont spin-off, Chemours has agreed to pay the state a total of $13 million in a recent consent order, in which the company admits to no wrongdoing. (Port City Daily/Courtesy Google Maps)

RALEIGH — The North Carolina Department of Environmental Quality filed its revised consent order in Bladen County Superior Court today. The NCDEQ is asking the court to revise its initial order with added measures designed to regulate pollution from The Chemours Company’s Fayetteville works facility, as well as to clarify that the company – and its parent company DuPont – are not released from future liability by the consent order.

As with the original consent order, both NCDEQ and the Cape Fear River Watch are given oversight authority over Chemours’ facility.

The updated consent order does not appear to compel Chemours to provide remedial funding for water quality downstream from its facility (e.g. it does not address the hundreds of millions of dollars in water filtration projects being pursued to remove emerging contaminants by water utilities in New Hanover and Brunswick counties). It does require Chemours to develop a plan for reducing downstream contamination and to share that plan with utilities in the Cape Fear area.

Within hours, Chemours had issued a statement, calling the revised order “a positive step for all stakeholders.” The Cape Fear Public Utility Authority, which had opposed the language of the original consent order (along with New Hanover County and the some members of the Wilmington city council, notably CFPUA boardmembers Kevin O’Grady and Charlie Rivenbark), also issued a statement, but did not signal whether the utility approved (or disapproved) of the revisions.

(Editor’s note: A full version of the revised consent order, signed today, can be found at the end of this article.)

Comparison of original and revised consent order

NCDEQ received more than 380 public comments and, based on them, included new requirements for The Chemours Company.

The order has been revised in response to more than 380 public comments received by DEQ since November. As a result of these revisions, Chemours will now be required to:

  • Report air emissions of GenX compounds each month.
  • Measure and analyze Chemours’ contribution to PFAS contamination at downstream public utilities’ raw water intakes.
  • Submit an analysis of PFAS contamination in river sediment.
  • Remove 99% of the contamination of the surface water and groundwater from an old outfall at the site.
  • Provide downstream public utilities with an accelerated plan to reduce PFAS contamination in the Cape Fear River.
  • Provide effective systems to treat drinking water fountains and sinks in public buildings.
  • Ensure that filtration systems are operating properly and are maintained for a minimum of 20 years.

Below: The NCDEQ released the following side-by-side comparison of the original and final consent orders. You can also find the comparison here.

Side by Side Comparison, No… by on Scribd

NCDEQ noted that the revised order in no way prevents future enforcement against Chemours based on new information. The order has been revised to clarify that the consent order does not in release Chemours from liability in any other suit; further, no other entity, including DuPont, is released from liability by any other pending suit.

The consent order retains the initial requirements for Chemours to come into compliance, including the following:

  • Reduce GenX emissions by 99% and control air emissions of all PFAS routed to a new thermal oxidizer by at least 99.99%.
  • Achieve maximum reductions in PFAS loading to the Cape Fear River from all sources on an accelerated basis.
  • Provide permanent drinking water supplies – either in the form of either a public waterline connection or whole building filtration system – for those with drinking water wells with GenX above 140 parts per trillion.
  • Provide under-sink reverse osmosis drinking water systems for well owners with combined concentrations of certain PFAS above 70 parts per trillion or concentrations of certain individual PFAS above 10 parts per trillion.
  • Sample drinking water wells at least one-quarter mile beyond the closest well that had concentrations of certain PFAS above 10 parts per trillion.
  • Annually retest wells in a manner sufficient to determine the extent of contamination.
  • Submit and implement a plan for sampling all process and non-process wastewater and stormwater to identify and measure concentrations of PFAS, including non-targeted analysis to identify PFAS that have not been previously identified.
  • Notify downstream public water utilities when an event at the facility has the potential to cause a discharge of GenX compounds into the Cape Fear River above 140 parts per trillion.

The Chemours Corporation

The Chemours corporation issued the following statement:

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.

We are pleased that the Cape Fear River Watch, represented by the Southern Environmental Law Center, remains a party to this agreement and we are looking forward to working with them and DEQ collaboratively throughout the implementation of the Consent Order, when approved.

While the core commitments of the Consent Order remain the same as in the version previously made public, the order submitted for court approval includes many enhancements and clarifications that reflect DEQ’s consideration of the public comments it received.  The changes require new or enhanced commitments by Chemours and reflect progress already achieved.

Examples of the modifications include:

  • New commitments by Chemoursto conduct studies to characterize PFAS emissions from our site in downstream water intakes and characterize PFAS emissions in sediments in the Cape Fear River
  • An expanded commitment by Chemoursto take expeditious steps by next year to reduce PFAS loadings from our site to the River
  • Enhanced commitments by Chemoursrelated to alternative water supplies

Chemours believes the Proposed Consent Order will address the concerns raised during the public comment period and intends to show our commitment through actions, not just words.  We will continue to demonstrate our progress in a transparent way as we move forward.

Cape Fear Public Utility Authority ‘reviewing’ order

CFPUA, which has filed its own lawsuit against Chemours, has objected to the lack of consideration for downstream water quality — and downstream water utilities. CFPUA is currently planning nearly $50 million in upgrades to the Sweeney Treatment Plant, and a total of $215 million over the next several decades, to deal with emerging candidates associated with Chemours.

CFPUA issued the following statement, indicating only that the utility was “reviewing” the order:

CFPUA is reviewing a revised consent order released this afternoon by the North Carolina Department of Environmental Quality regarding ongoing releases of PFAS compounds from Chemours’ chemical plant that have affected the Cape Fear River and downstream water users.

The consent order, filed in Bladen County Superior Court, revises some terms of a proposed order filed November 21, according to NCDEQ. The consent order is intended settle claims in NCDEQ’s 2017 lawsuit against Chemours, as well as a separate lawsuit filed by Cape Fear River Watch.

On December 20, CFPUA filed a motion to intervene in NCDEQ’s lawsuit against Chemours. A ruling on CFPUA’s motion is still pending.

“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.

Final Revised Proposed Cons… by on Scribd

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