Saturday, September 30, 2023

Nonprofits request ‘community voice’ be heard before the courts in Chemours, EPA lawsuit

CFPUA has detected the highest concentration of PFAS in the Cape Fear River since last year (Port City Daily photo / CFPUA)
Nonprofits are seeking to intervene in Chemours’ lawsuit against the EPA, to provide input from the community most affected by contaminated drinking water of the Cape Fear River. (Port City Daily/CFPUA)

SOUTHEASTERN N.C. — New players are looking to join litigation between a company responsible for contaminating the Cape Fear River and the agency trying to mitigate it.

A coalition of community, public health and environmental activists — Cape Fear River Watch, Clean Cape Fear, Center for Environmental Health, Democracy Green, Toxic Free NC, the NC Black Alliance, Natural Resources Defense Council and five residents — filed a motion Aug. 12 to intervene in a legal challenge by chemical company Chemours. The Fayetteville Works plant is suing the Environmental Protection Agency for imposing what it considers to be “scientifically unsound” GenX health advisories.

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

GenX chemicals — a form of PFAS detected in the region’s drinking water — have been flowing in the Cape Fear River for decades from the Fayetteville Works Facility off Highway 97, an hour-and-a-half west of Wilmington. The public wasn’t informed of its toxic dumping until 2017, and ever since community members, nonprofits and local governments have been working to hold the Dupont successor company accountable.

“Chemours’ goal is basically to invalidate the health advisory and force EPA to go back to square one,” explained Bob Sussman, the attorney representing seven nonprofits and five residents in the lawsuit.

He said the main reason the groups want to get involved is to ensure there is “a community voice heard before the court.” They also hope the show of support will push the judge to drop Chemours’ case.

On June 15, the EPA announced GenX levels would be set to 10 parts per trillion (ppt), down from 70 ppt announced in 2016. The federal advisory — while not legally enforceable — overrides North Carolina’s 2018 provisional drinking water health goal of 140 ppt.

In response, Chemours submitted a letter to the EPA asking for it to “correct” the level of risk associated with exposure to GenX. The chemical company claims the federal assessment on GenX “ignored peer-reviewed research supporting less restrictive measures.” 

Chemours enlisted the help of its own experts from ToxStrategies, a scientific consulting firm, to refute EPA’s findings.

“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.

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.

But the EPA has stood by its claim, saying two independent scientists, as well as the Environmental Health Sciences Toxicology Program, reviewed its findings before the agency announced its advisories.

Chemours then petitioned the U.S. Court of Appeals for the Third Circuit on July 13 in an effort to legally force the government to reassess its claims, calling the EPA’s evidence “flawed.”

“Chemours had plenty of opportunity to take issue with the EPA science and their views were just not persuasive; it didn’t carry the day,” Sussman said.

Prior to the court’s involvement, when Chemours first reached out to the EPA asking it to reevaluate the newly implemented advisory, advocacy groups were ready to fight back. Cape Fear River Watch, Clean Cape Fear, Center for Environmental Health, Democracy Green, Toxic Free NC and the NC Black Alliance submitted a letter May 3 to the EPA asking for it to oppose Chemours’ request.

“Health advisories are often the only comprehensive collections of technical information from EPA on the health impacts of drinking water contaminants available to the public,” the letter states.

Sussman said the group argued the EPA’s science and research was “rock solid.” The motion explains the EPA’s “rigorous” process in developing its toxicity assessment in 2018 and updated in 2021, as well as its “well-established methodology.” It concluded that GenX harms the liver, kidney, immune system, development of offspring and is associated with increased risks of cancer if exposed to 10 ppt over a lifetime.

Sussman, on behalf of the parties, is asking the courts to dismiss Chemours’ petition since the GenX advisory is “non-enforceable” and “non-regulatory.”

“The advisory statement is EPA’s best interpretation of the science, and what the state of North Carolina or others do with the advisory is their decision,” Sussman said.

The advisory holds Chemours accountable to provide clean drinking water to communities impacted through the N.C. Department of Environmental Quality’s consent order signed February 2019 (and amended in 2020). The order forces the company to provide alternative water sources to anyone with private wells resulting in GenX contamination that exceeds 140 ppt or “any applicable health advisory, whichever is lower.”

The health advisory of 10 ppt was updated June 15 for standard private wells.

“I don’t think Chemours wants to be stuck with that,” Sussman said of one of the reasons the company filed a lawsuit.

Chemours’ initial plan for testing wells within half-a-mile of the Cape Fear River was strongly opposed by local government officials, saying it wasn’t nearly enough. The company proposed testing “up to” 200 private wells. NCDEQ asked Chemours to do better and a revised plan was submitted April 1. Residents in Pender, New Hanover, Brunswick and Columbus counties can apply online to have their wells tested if they meet certain criteria.

According to NCDEQ, Chemours has sent 100,000 letters to residences in the Lower Cape Fear who might fit the criteria for private well testing.

As of June 26, 180 had been tested and 31 had elevated levels of GenX, according to NCDEQ. Of those, 27 have received bottled water to supplement their contaminated drinking supply.

Upholding the EPA’s health advisory opens up greater opportunity for community members to receive adequate drinking water at Chemours’ expense, Sussman said. More than 500,000 people are adjacent to or downstream from Chemours plant and consume the impacted water, found to contain GenX 14 times — in some cases up to 50 times — greater than the 10 ppt health advisory.

“The EPA is not on the front lines in North Carolina,” Sussman said. “The important context and underground realities, our groups can help the court to understand.”

Both the EPA and Chemours have the chance to oppose any intervention in the case. The EPA filed a request Wednesday asking for another 30 days before responding. Chemours’ media team did not wish to comment upon Port City Daily’s inquiry.

Even if either party did oppose the intervention, the courts have the final say, Sussman explained.

“This is not a trial court proceeding,” he said. “No evidence is going to be presented. This case is going to be decided on the briefs submitted to the court. So, we’d like the ability to file our brief that provides [our] perspective.”

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