SOUTHEASTERN N.C. — North Carolina environmental justice groups are reactivating a lawsuit against the Environmental Protection Agency after they say the federal government failed to hold accountable The Chemours Company, which has dumped PFAS into the Cape Fear River for decades. The contaminants, widely found in Americans’ blood, are linked to a range of adverse health effects, of which the full extent is still unknown.
The groups have petitioned twice now for the EPA to require Chemours, a chemical manufacturer with a facility upstream in Fayetteville, to fund health studies that may give answers to how the substances are affecting the community’s health. Once it was met with a denial, and after resubmittal, the plea was deemed “granted,” but not to the petitioners’ satisfaction.
Without the EPA forcing action, the petitioners say it will fall on taxpayers to figure out if and how years of exposure to PFAS are contributing to cancer clusters, increased thyroid problems and other health issues. The Toxic Substances Control Act empowers the EPA to order the testing of the chemicals. It has done so for 24 pollutants, but only seven of those are within the petition.
“The EPA has told us that they have legal authority to grant the petition,” Emily Donovan, co-founder of Clean Cape Fear, said. “So the fact that they’re not granting the petition, in my mind, makes me feel like they’re doing it for a lack of political will. They’re afraid to upset the chemical industry, and they’re doing it at our expense, our health.”
Clean Cape Fear, a grassroots alliance, partnered with the Center for Environmental Health years ago to craft the petition, listing 54 per- and polyfluoroalkyl substances manufactured by Chemours. They then invited other organizations — Cape Fear River Watch, Clean Cape Fear, Democracy Green, the NC Black Alliance, and Toxic Free NC — to sign on.
In October 2020, the group filed the plea to the EPA. It included several key asks, including epidemiological studies of the PFAS, some of which had been detected in human blood.
“Those should be fast-tracked at the highest level possible,” Donovan said, “and there should be an immediate understanding to the general population of what these exposures mean.”
Donovan wants answers for her friends and neighbors who suffer from recurring and rare cancers, some of whom are young, “which is just not normal,” she said.
The petition also asks that Chemours fund impact studies to understand how the substances act when mixed. Donovan said this information is sorely lacking.
“We’re not exposed one PFAS at a time,” said Dana Sargent, executive director of Cape Fear River Watch. “So we need to know what these chemicals are doing when they interact with each other in our bodies and in the environment. The mixture study is huge, and there’s nothing in the EPA plan to do any mixture study.”
The petition is written in a way to ensure the research is held to a high standard, similar to the 2019 consent order between Cape Fear River Watch, DEQ and Chemours. An oversight panel would approve the experts the corporation hires to accomplish the work.
“This wouldn’t be Chemours testing themselves,” Sargent explained. “This would be Chemours paying for experts under the oversight of other experts.”
On Jan. 7, 2021, just before President Joe Biden’s inauguration, the petition was denied under President Donald Trump’s administration. Donovan said it wasn’t surprising.
“They were very transparent that they were there to protect industry,” Donovan said.
The groups had more hope as Biden was up for election. He was the first president to highlight “forever chemicals” in his campaign, specifically pledging to accelerate toxicity studies and research on PFAS.
“We were eager to see just how far his campaign promise would go,” Donovan said.
They were further encouraged when Biden appointed Michael Regan, former N.C. Department of Environmental Quality secretary, to head the EPA in March 2021.
The same month Regan took office, petitioners resubmitted the petition under the new administration, optimistic about a promising outcome. By September, the EPA agreed to revisit the petition and the groups paused their litigation.
About three months later, just before the new year, the EPA announced it was granting the petition.
“Communities in North Carolina and across the country deserve to know the potential risks that exposure to PFAS pose to families and children,” administrator Regan said in a press release at the time. “By taking action on this petition, EPA will have a better understanding of the risks from PFAS pollution so we can do more to protect people.”
‘Spun the narrative’
Upon further inspection, the groups say the EPA only agreed to require testing on seven of the 54 PFAS they had petitioned for. Sargent believes the agency actually turned down the petition, then “spun the narrative.”
“That’s essentially a denial without actually coming out and saying they denied it,” Donovan said, “which in my mind can almost be more harmful than the flat-out denial that the Trump administration gave us.”
The seven substances were already listed under the PFAS Strategic Roadmap, the agency’s timeline of action to confront unregulated compounds.
“So in effect, they did not do anything outside of what they had already announced they were going to do,” Sargent said.
In an October press conference, Reagan shared the roadmap in Raleigh, vowing to hold polluters accountable as many of the petitioners sat in the audience. At the time, the petition was still under review by the EPA.
“He had every chance in the world to prove that those were not just words, and he and his EPA failed,” Sargent said.
Port City Daily reached out to the EPA Press Office for comment but did not receive a response. The press release in which the agency announced it was granting the petition points to “phases” of testing under the roadmap. It is beginning with research on 24 substances, it stated could reveal more information on 2,950 PFAS that are within the same families.
The EPA remarked the testing of the 24 PFAS, “about which the least is known,” should reveal human health hazard data on 30 of the 54 petitioned chemicals. Subsequent testing may cover categories in which nine of the other 54 chemicals are in, according to the agency.
The remaining 15 chemicals, according to the EPA, did not fit the testing strategy’s definition of PFAS and had “robust data” available.
The EPA also is not pursuing mixture studies, as the petition had requested. In its release, the agency indicated it could predict the toxicity of the combinations with knowledge of individual substances, an “approach that is consistent with the current state-of-science on PFAS.”
Donovan said the petition was “a very modest request in the grand scheme” of regional contamination, especially in light of recent discoveries.
Since the researchers starting compiling the list of PFAS they wanted to be investigated, 250 previously unknown PFAS were uncovered in samples of processed wastewater from Chemours manufacturing areas.
The findings were the result of a non-targeted analysis interim required under the state’s consent order with Chemours, which arose after Cape Fear River Watch sued the DEQ for not upholding the Clean Water Act.
The order also demands Chemours reduce PFAS discharges and emissions by 99%. Chemours is currently running a “Good Neighbors Care” campaign — commercials can be seen on local networks — touting it “invested” in the environmental work. Local officials came out in strong objection of the ads, with New Hanover County’s chair calling it a “misleading advertising blitz.”
To reactivate the suit, the parties filed a joint motion and an amended complaint Wednesday revising their claims following EPA’s response to the petition.
The suit is filed in the District Court for the Northern District of California, where the Center for Environmental Health is based.
“If I had an opportunity to talk to administrator Regan, I would ask him: ‘What’s holding you back?’” Sargent said. “‘Why would you not immediately sign this order to force the polluter to pay for these tests? You know, the polluter that is making billions of dollars off of these chemicals, that has done this for 40-plus years, knowingly.’”
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