Tuesday, February 20, 2024

Chemours calls EPA’s health advisories ‘scientifically unsound,’ files lawsuit in response

Chemours has filed suit against the EPA, claiming its health advisory released last month for GenX is “flawed.” (Port City Daily/Shea Carver

SOUTHEASTERN N.C. — A battle between a Fayetteville chemical company and the federal government is heating up, as Chemours has filed a lawsuit refuting the Environmental Protection Agency’s science behind its recently announced lifetime health advisory.

On June 15 the EPA announced GenX — a form of PFAS detected in the Cape Fear River — would be set to 10 parts per trillion (ppt). The federal requirement overrides North Carolina’s provisional drinking water health goal of 140 ppt established in 2018.

READ MORE: Proposed legislation could force Chemours to pay

Chemours submitted a letter to the EPA asking it to “correct” the level of risk associated with exposure to GenX. But the government agency stood by its claim — much to the approval of environmental groups like the Cape Fear River Watch, which submitted a letter asking the EPA to strongly oppose Chemours’ request to withdraw the health advisory.

“For Chemours to fight this long-awaited notice from EPA that this stuff can kill people continues to expose Chemours for the kind of company they are: one founded on the principle of greed … and disregard for the health of their community, the environment, and the world-at-large,” CFRW executive director Dana Sargent said.

In its next move, Chemours has petitioned the U.S. Court of Appeals for the Third Circuit on Wednesday to review the assessment, saying the government’s evidence is “flawed” and “scientifically unsound.”

“Chemours supports government regulation that is grounded in the best available science and follows the law,” the company told the courts in a statement. “The health advisory issued by the U.S. EPA for HFPO-Dimer Acid [also known as GenX], fails on both accounts.”

The statement goes on to call EPA’s toxicity assessment “extreme” and “excessive,” and claims the agency “misused its authority to promulgate a health advisory.”

In 2009, Chemours — then operating as DuPont — replaced the use of perfluorooctanoic acid, or PFOAs, with GenX, at the request of the EPA to reduce emissions by 95%.

Almost a decade later, in 2017, the public became aware Chemours had been dumping toxins into the Cape Fear, in effect poisoning the drinking water for downstream residents for 40 years. Included were per- and polyfluoroalkyl substances, or PFAS — considered “forever chemicals” due to their inability to break down in the environment. The health effects are still being studied but have been linked to kidney disease, development effects of fetuses, and some forms of cancer, according to the N.C. Division of Environmental Quality.

“People on the frontlines of PFAS contamination have suffered for far too long,” EPA Administrator Michael Regan said in a statement. “That’s why EPA is taking aggressive action.”

Last month, EPA issued  interim updated health advisories for PFOA and PFAS, with a minimum of  4 ppt combined. The levels are 17 times less than 2016’s provisional health advisory of 70 ppt for both compounds.

According to a June statement made by NHC’s public health director, David Howard, the advisory levels could be implemented as soon as next year. 

“New Hanover County residents are already a step ahead of most areas of the country in awareness of these compounds and actions to reduce exposure,” he said in a release last month.

According to Chemours, GenX does not “break down to form PFOA or any other PFAS in the environment.” The company’s lawyers from Arnold & Porter Kaye Scholer LLP submitted a “request for correction” demanding the EPA’s assessment of GenX be withdrawn from record. It claims the government ignored peer-reviewed research supporting less strict measures.

Two independent scientists, as well as the Environmental Health Sciences Toxicology Program, reviewed the EPA’s findings before the agency announced its advisories.

Chemours hired its own experts from ToxStrategies, a scientific consulting firm, to refute EPA’s findings. They included principal scientist Dr. Laurie Haws and senior consultant Dr. Chad Thompson, as well as Indiana University professor Dr. James Klaunig, North Carolina State professor of pathology Dr. John Cullen, Dr. Damian Shea of Statera Environmental. 

“EPA has not taken into account available epidemiological evidence showing no increased risk of cancers or liver disease attributable to exposure to [GenX],” the lawsuit reports.

The letter states Chemours does not use GenX for commercial products, but to make fluoropolymers, “essential” for the medical, automotive, electronics, aerospace, energy and semiconductors industries. The company also claims there are no alternative replacements for the use of the substances.

A 2020 published study by UNC professor of environmental scientist Dr. Grace Chappell cites the effect GenX has on rodent livers is not relevant to humans, according to the lawsuit. As a result, Chemours claims the EPA “overstates the potential risk” of the contaminant.

Chemours is also claiming the EPA’s draft of the assessment from 2018 is “materially different” and the federal agency did not provide a period of time for public comment before releasing it. Yet, the federal agency counters the claim, saying it was available for public review and comment for 60 days.

EPA’s increased “uncertainty factor” — an element used in evaluating health risk — is too strict, according to the chemical company, which also asserts there isn’t enough data available to back it up.

The EPA denied requests for correction last month before releasing its health advisory. It stands by its science and review process guided by its 2021 toxicity assessment of GenX. 

One in five North Carolinian’s drinking water comes from the Cape Fear River, and local officials have been fighting for protection from the contaminants over the last five years. Cape Fear Public Utility Authority, Brunswick County and Cape Fear River Watch have all filed suit against Chemours.

Cape Fear River Watch also launched petitions recently, one to end the use of PFAS in firefighting gear and another demanding Congress regulate chemicals in drinking water.

“While pumping out a slick PR campaign to convince the community they poisoned that they’re ‘good neighbors’ who care, Chemours has once again proven the only thing they care about is their bottom line,” Sargent added.

The EPA’s June advisory recommended local utility agencies install carbon filters to further protect drinking water, which Cape Fear Public Utility Authority has been doing at Sweeney Water Treatment Plant. Installation of the filters, specifically engineered to withdraw PFAS, is nearly complete and pilot tests show the system should slash GenX to near undetectable levels.

The construction comes at a cost, though — and not to polluters. CFPUA spent nearly $43 million and it will run an additional $3 to $5 million annually for operation. CFPUA customers are incurring the cost at a rate of roughly $5 more per month. Another 8% hike is scheduled for next year.

Proposed legislation, House Bill 1095, would force Chemours to reimburse local agencies for upgrading its system to include the filtration. It has yet to pass the House for approval, but has four primary sponsors, including Sen. Frank Iler (R-Brunswick) and Rep. Charles Miller (R-Brunswick, New Hanover), and is supported by 27 additional legislators.

The Fayetteville Observer reported Wednesday in regards to Chemours’ petition that the company was assessing its next steps. Chemours did not respond to Port City Daily’s inquiry on how it will proceed by press.

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