DEQp00020470

BROOKS 6w.. -
FOUNDED 1897
June 19, 2017
By email to: [e-mail]
By FedEx to:
Secretary Michael S. Regan
Department of Environmental Quality
217 West Jones Street
Raleigh, North Carolina 27603
2000 RENAISSANCE PLAZA
230 NORTH ELM STREET
GREENSBORO, NC 27401
T 336.373.8850
F 336.378.1001
WWW.BROOKSPIERCE.COM
Re: GenX in the Cape Fear River; First Set of Requests for DEQ Action
Dear Secretary Regan:
We are environmental counsel for the Cape Fear Public Utility Authority
("CFPUA'). This letter is our first set of requests on behalf of CFPUA for DEQ
monitoring, permitting, and regulatory actions. We anticipate future requests as we
obtain and consider additional information. Our requests do not limit or narrow in
any way the requests made by CFPUA in its resolution of June 16, 2017. See Exhibit
1 (enclosed).
In this letter, we refer collectively to the following pollutants as "GenX
Pollutants":
(1) chemicals collectively identified by DuPont Company and The Chemours
Company FC, LLC as "Gen)";
(2) chemicals that are structurally or functionally or otherwise similar to GenX
that result from the manufacture, use, processing, treatment, or disposal of
GenX ("Post-GenX Chemicals");
(3) perfluoroalkyl ether carboxylic acids (PFECAs); and
(4) chemicals that are structurally or functionally or otherwise similar to
PFECAs that result from manufacture, use, processing, treatment, or
disposal of PFECAs ("Post-PFECA Chemicals").
Sampling Program for GenX Pollutants
We request DEQ cause the implementation of an extensive sampling and
analysis program to detect and determine the concentrations of GenX Pollutants in
certain effluents, in the Cape Fear River, and in the tissues of aquatic organisms in
the Cape Fear River.

The program should include analysis of samples using currently available
methods to determine the presence and concentrations of GenX Pollutants. In
addition, each sampling event should include the collection, preservation, and secure
storage of multiple, additional samples to allow future analyses using analytical
methods that will be developed but do not currently exist. As new analytical methods
become available, stored samples should be analyzed. The requested sampling should
include, but not be limited to, the following:
1. CFPUA Intakes. For at least one year, collect at least weekly water
samples from the Cape Fear River at the CFPUA intakes, in coordination
with CFPUA.
2. Process Streams. For at least one year, on an unannounced basis, collect
weekly samples of the effluent from each separate process stream that
contributes wastewater to Outfall 001, with the hour of each sampling event
to be randomly selected such that sample collection may occur at any hour
within each 24-hour period.
3. Outfall 001. For at least one year, collect unannounced weekly samples of
the effluent from Outfall 001, with the hour of each sampling event to be
randomly selected such that sample collection may occur at any hour within
each 24-hour period.
4. Outfall 002. For at least one year, collect unannounced samples of the
effluent from Outfall 002 at the same time samples are collected from
Outfall 001.
5. Aquatic Organism Tissue. Collect tissue samples from appropriate
species of fish, benthic organisms (e.g., freshwater clams, mussels, crayfish,
etc.) at Outfall 002, at the CFPUA intakes, and at a midpoint between the
two locations.
6. Sediment Samples. Collect sediment samples at Outfall 002 and at
appropriately spaced points downstream of Outfall 002.
NPDES Permit Conditions or Denial of Renewal Application
We understand that Chemours has applied for reissuance of the NPDES
permit for the Chemours industrial wastewater discharge to the Cape Fear River
from its Chemours Company — Fayetteville Works near Fayetteville, North Carolina,
NPDES Permit No. NC0003573 (the "Chemours Permit"). We also understand that
the application is still under consideration by DEQ.
2

We request on behalf of CFPUA that DEQ include conditions in the Chemours
Permit required by 15A NCAC 2H .0112(c):
The permit applicant has the burden of providing sufficient
evidence to reasonably ensure that the proposed system will comply
with all applicable water quality standards and requirements. No
permit may be issued when the imposition of conditions cannot
reasonably ensure compliance with applicable water quality standards
and regulations....
15A NCAC 2H .0112(c). If Chemours, for any reason, does not provide sufficient
evidence to reasonably ensure that the proposed system will comply with all
applicable water quality standards and requirements, we request the Chemours
application for permit renewal be denied.
More specifically, we request the inclusion of the following conditions:
GenX WQBEL. Add a water quality based effluent limit that sufficiently
limits the discharge of GenX Pollutants to reasonably ensure that GenX Pollutants
occur in the Cape Fear River in "only such amounts as shall not render the waters
injurious to public health" as required by 15A NCAC 2B.0211(12) ("GenX WQBEL").
If DEQ is unable to determine the GenX WQBEL or for any other reason does
not add the GenX WQBEL as a permit condition, we request DEQ condition the
Chemours Permit to prohibit the discharge of GenX Pollutants.
GenX TBEL. Impose a technology-based effluent limit that requires the
removal of at least 99% of GenX Pollutants from the effluent of each separate
industrial process that contributes to the Outfall 001 effluent ("GenX TBEL"). We
note that DEQ's authority includes, but is not limited to, the following:
For industrial categories or parts of categories for which effluent limits
and guidelines have not been published and adopted, effluent
limitations for existing industrial waste discharges, or new industrial
waste discharges shall be calculated by the staff using the projected
limits of the Environmental Protection Agency, the Environmental
Protection Agency development document and other available
information in order to achieve the purposes of Article 21. Such limits
developed by the staff shall be subject to approval by the Director.
E

15A N.C. Admin. Code 2B .0406(e) (italics added). The purposes of Article 21 include
the following:
Standards of water and air purity shall be designed to protect human
health ... to prevent damage to public and private property ... to provide
a permanent foundation for healthy industrial development and to
secure for the people of North Carolina, now and in the future, the
beneficial uses of these great natural resources.
N.C. Gen. Stat. § 143-211(c).
Moreover, the GenX TBEL is mandated by statute as follows:
All permit decisions shall require that the practicable waste treatment
and disposal alternative with the least adverse impact on the
environment be utilized.
N.C. Gen. Stat. § 143-215.1(b)(2). Adverse environmental impact as well as the
practicability of 99% removal are both established by EPA's Toxic Substances Control
Act Consent Order signed by EPA on January 26, 2009 that allows the manufacture
of GenX in the United States ("TSCA Order") and information used by EPA to craft
the TSCA Order.
In addition, North Carolina water quality standards prohibit the discharge
into the Cape Fear River at the location of the Chemours facility of any industrial
wastes that "have an adverse effect on human health or that are not treated to the
satisfaction of the [Environmental Management] Commission and in accordance with
the requirements of the Division [of Water Resources]." 15A NCAC 2B .0216(3)(a).
If DEQ does not add the GenX WQBEL as a permit condition, we request DEQ
condition the NPDES Permit to prohibit the discharge of GenX Pollutants.
3. Other NPDES Permit Actions
We request that DEQ assess and determine whether the use of "noncontact
Cape Fear River water" to apparently dilute the industrial wastewater effluent by a
factor of more than 25:1 complies with all regulatory and statutory requirements.
We request that DEQ assess and determine whether the use of an in -river
sampling location for whole effluent toxicity complies with all regulatory and
statutory requirements, and whether sampling should instead occur at the outfall.
4

Public Health Determination
We request that DEQ request and obtain a determination from the
Department of Health and Human Services whether or not the Chemours discharge
point to the Cape Fear River is an "outlet for the disposal of waste [that] is, or would
be, sufficiently close to the [CFPUA] intake works ... as to have an adverse effect on
the public health." N.C. Gen. Stat. § 143-215.1(a2).
On behalf of CFPUA, we look forward to working with you and your
department on this important matter.
Sincerely,
y
ge W. 7H.e
V. Randall Tinsley
5

Exhibit 1
(CFPUA Resolution)

CAPE FEAR PUBLIC UTILITY AUTHORITY
RESOLUTION
Whereas Cape Fear Public Utility Authority (CFPUA) furnishes water for the City of Wilmington
and sections of New Hanover County.
Whereas the Chemours Company ("Chemours") has Informed the public that it .is releasing
fluorochemical compounds known as 'GenX into the Cape Fear River with its wastewater effluent at Its
manufacturing facility located in Fayetteville, North Carolina.
Whereas Chemours' renewal applicatlomfor NPOES Permit NCO0099573 dated April 27, 203.6 did
not disclose to the North Carolina Department of Environmental Quality ("DEQ") and the public that its
effluent wastewater contained fiuorochemical compounds and specifically those compounds known as
GenX.
Whereas Chemours, the U.S. Environmental Protection Agency ("EPA") and the North Carolina
Department of Health and Human Services ("DHHS") believe that there Is some evidence that the
fluorochemicals currently present In the Cape Fear River will not harm human health or the
environment, none of these parties will say for certain.
Whereas CFPUA has reviewed the EPA's Consent Order ("Order") under the Toxic Substances
Control Act signed January 26, 2009 allowing the manufacture of GenX in the United States.
Whereas the Order states: "EPA has concerns that these PMN substances will persist In the
environment, could bio -accumulate, and be toxic (."PBT") to people, wild mammals and birds. ERA's
concerns are based upon data on the PMN substances, analogy to other I } chemicals, and to
perfluorooctanoic acid ("PFOA") and perfluorooctane sulfonate ("PFOS") which are both currently under
review by EPA for PBT concerns." And further, "EPA has human health concerns for the PMN
substances."
Whereas the Order requires Chemours to "recover and capture.(destroy) or recycle the PMN
substances at an overall efficiency of 99% from all effluent process streams and the air emissions (point
source and fugitive.)"
Whereas the EPA request certain studies be completed by Chemours for EPA's review to allow
the EPA to determine at what level the chemical compounds known as GenX can be safely consumed, if
at all, by the public.
Whereas the EPA has advised CFPUA that it has not completed those studies.
Whereas under the North Carolina Administrative Code which was adopted to implement the
General Statutes of North Carolina, a "Discharge is the addition of any mart induced -waste effluent
either directly or indirectly to state surface waters." And an "industrial Discharge" is "the discharge of
industrial process treated wastewater"'. 15A NCAC 213.0202 (25 and 36).
Whereas "deleterious substances" or "other wastes" are permitted to occur in the Cape Fear
River in "'only such amounts as shall not render the waters injurious to public health." 15A NCAC 2B
.0211(12). Any greater amount would be an unlawful violation of a North Carolina surface water quality
standard.

Whereas North Carolina water quality standards prohibit the discharge Into the Cape Fear River
at the location of the Chemours facility of any Industrial wastes that "have an adverse effect on human
health or that are not treated to the satisfaction of the [Environmental Management] Commission and
In accordance with the requirements of the Division [of Water Resources]." ISA NCAC 213.0216(3)(a).
And, "[a]ny dischargers or industrial users subject to pretreatment standards may be required by the
Commission to disclose all chemical constituents present or potentially present in their wastes and
chemicals that could be spilled or be present in runoff from their facility which may have an adverse
impact on downstream water supplies. These facilities may be required to have spill and treatment
failure control plans as well as perform special monitoring for toxic substances." id.
Whereas the current version of NPDES Permit NC0003573 issued to Chemours by DEQ on
October 28, 2015 provides for the permit to be modified or revoked and reissued to Incorporate
additional toxicity limitations and monitoring requirements "in the event toxicity testing or other studies
conducted on the effluent or receiving stream indicate that detrimental effects may be expected In the
receiving waters as a result of this discharge." NPDES Permit No. NC0003573 at A.(S).
Whereas GenX is clearly persistent enough to travel miles from the Chemours manufacturing
facility to the CFPUA drinking water intake.
Whereas the CFPUA wants to protect and will take such actions as are necessary to protect its
water users from any harm.
Whereas EPA and DEQ have authority to take actions to protect the CFPUXs water users and
should promptly take all such actions.
Now, therefore, be it resolved:
1. CFPUA requests DEQ:
a. To Immediately modify NPDES Permit NC0003573 to require daily sampling and
testing of all waste streams leaving the Chemours manufacturing facility (including
any affiliates or tenants discharging through the Chemours wastewater treatment
plant) for all fluorochemicals, including those known as GenX,.being discharged into
the Cape Fear River from outfalls 001 and 002 ; and
b. To Immediately consult wlh DHHS and determine whether the concentrations of
the GenX compounds in the wastewater discharge to the Cape Fear River from the
Chemours manufacturing facility are protective of human health, taking into
account all relevant factors including, without limitation, toxicity, persistence in the
environment, and bloaccumulation; and
c. To Immediately modify NPDES Permit NC0003573 to prevent any discharge of the
GenX compounds from the Chemours manufacturing facility wastewater treatment
plant until paragraphs I.a. and b. have been completed.
2. The CFPUA requests EPA determine whether Chemours has:

For each month In which Chemours has discharged any amount of GenX to the Cape
Fear River, continuously captured/destroyed 99% of GenX from its wastewater
treatment plant effluent streams; and
b. Has established at its Fayetteville facility the necessary processes and procedures to
ensure that 99% of GenX is being and will continue to be captured/destroyed from
its wastewater treatment plant effluent streams.
3. CFPUA requests EPA immediately review the studies it has received from Chemours and any
sampling it is aware of and determine immediately whether the concentrations of.the GenX compounds
in the wastewaters from the Chemours manufacturing facility wastewater treatment plant being
discharged to the Cape Fear River are protective of human health, taking into account. all relevant
factors including, without limitation, toxicity, persistence in the, environment, and bloaccumulation and
to immediately modify PMN P-08-508 and P-08-509 to prevent the discharge of any fluorachemical
compounds into the Cape Fear River until these determinations can be made.
4. CFPUA requests Chemours act responsibly and cease all discharges that contain fluorochemical
compounds until DHHS and EPA determine what levels of concentration for each such compound being
discharged can be safely discharged to protect human health and the environment.
This 16th day of June, 2017.
.l
Michael C. Brown, III
Chairman of the Board
Attest:
C. Lawrence Sneeden, Secretary