DEQ-CFW_00079939

BROOKS 6,.-
-­--'*� P I E RC E
F 0 LJ NI D E D 1 8 9 7
July 7, 2017
Via 17ederal Exprers & F.Mail
michacl.reganLa)ncdenr. gov
Secretary Michael S. Regan
Department of Environmental Quality
217 West Jones Street
Raleigh, North Carolina 27603
Re: Ge.nX, in the Cape Fear River
Dear Secretary Regan:
2000 RENAISSANCE PLAZA
23o NoRTi-i Euvi STREET
GRuiNsBoRo, NC 27401
T 336-373,8850
F 336.378,1001
WWW.BROOKSPIEIZCE.COM
We are environmental counsel for the Cape Fear Public Utility Authority ("CFPUA").
We and the CFPUA have reviewed the 2006, 2011, and 2016 Chemours and DuPont
NPDES discharge pen -nit applications provided to us by DEQ and have not found in those
applications notification that GenX is among the pollutants being discharged to the Cape Fear
River.
We and the CFPUA were surprised by a contrary statement attributed to Department of
Fnvironniental Quality ("DEQ") personnel by the Wilmington StarNews in a June 29,2017 article
("Purported DEQ Statement"):
State regulators said Chemours informed them in its most recent discharge permit
application and "all previous applications" that it was releasing GenX and other
related substances from the Fayetteville Works plant into the Cape Fear River, a
process that has occurred. since 1980.
Vaughn Hagerty, Did Cheniours tell,'VC it was, discharging GenX?, Wilmington Star News, June
29, 2017 (available at t iiewsi'2(.)170629/'did-cliet-nou,rs-tell-nc-i.t-
'rhe Star News indicated the basis for the Purported DEQ Statement was
the following excerpt from a section of the pending 2016 NPDES Permit Renewal Application:
WriteCs Direct D"al: PhOi�e: 336-271--,�114 F,-ix: 3336-232-&11114 �hoUse.6ibrookspier ce.com
Brooks, Pierce, McLendon, Humphrey & Leonard, L.L,P.
Att-Orneys and Counsellors at Law
DEQ-CFW-00079939

The HFPO monomer and the Vinyl Ether monomers are used to manufacture
various fluorochemical products such as Chemours Teflon. Wastewater generated
from this manufacturing facility is discharged to the Chemours' wastewater
treatment plant.
We do not believe that the excerpt constitutes notice to DEQ or the public that Chemours is
discharging GenX into the Cape Fear River, particularly in light of other affirmative
representations in the permit applications.
The Quoted 2016 Permit Application Excerpt Does Not Give Notice of the Discharge of
GenX.
The quoted 2016 application excerpt is part of the applicant's discussion of the
Fluoromonomers/Naflon(M Membrane Manufacturing Area (the "FNMM Area"). We do not
understand how the quoted excerpt could put DEQ or the public on notice that Chemours was
releasing GenX into the Cape Fear River.
First, the application excerpt does not identify any wastewater constituents. The excerpt
fails to identify even the raw materials being used, providing only the barest description of the
final products manufactured in the FNMM area —which are mostly identified only by brand name.
There is no identification of the constituents of the wastewater.
Second, the general reference to the "HFPO monomer" and the "Vinyl Ether monomers"
does nothing to identify the involvement of GenX. Neither HFPO nor Vinyl Ether monomers are
GenX compounds, as is evident from the Netherlands study previously provided to DEQ, which
shows the molecular structure of GenX compounds. First, HFPO is a specific chemical and not
one of the GenX compounds. Second, by definition GenX compounds do not constitute vinyl
ethers as they lack the necessary CH2=Ctl—O—R chemical structure, or the perfluorinated
equivalent of CF2=CF-0—R.
Likewise, the description of FNMM Area products loosely refers to their use in the
manufacture of "various fluorochemical products such as Chemours Teflon®," but the general
reference to the manufacture of other products at other facilities provides no notice that GenX is a
constituent of process wastewater from the FNMM Area.
Thus, the reported basis for the Purported DEQ Statement — an excerpt from the 2016
permit application — does not provide any support for a conclusion that Chemours informed DEQ
that Chemours was discharging GenX into the Cape Fear River.
Statements in Permit Applications
The Purported DEQ Statement regarding previous applications also seems misplaced in
light of the representations made by DuPont and Chemours in the permit applications.
2006. DuPont's May 1, 2006 NPDES Permit Renewal Application Supplemental
Information states the following about APFO manufacturing at the Fayetteville Works: (i) it had
DEQ-CFW-00079940

been manufacturing APFO (the ammonium salt of PFOA) since November 2002; (ii) "none of the
produced APFO is used at the Fayetteville Works site"; and (iii) "[a]ll wastewater generated from
this manufacturing facility is collected and shipped off -site for disposal. No process wastewater
from this manufacturing facility is discharged to the site's biological WWTP or to the Cape Fear
River." As we understand the statement: APFO is manufactured on -site without APFO process
wastewater going to the WWTP or the Cape Fear River and the APFO is not used anywhere else
on -site. We cannot discern how these statements would put DEQ or the public on notice that the
Fayetteville Works was causing APFO to be discharged to the Cape Fear River.
2011. DuPont's April 29, 2011 Permit Renewal Application includes statements about an
unidentified polymer processing aid ("PPA"), which mirror the DuPont statements about APFO.
As with the prior statements about APFO, the company said about this unidentified PPA: (i) the
facility was started in November 2002; (ii) "none of the produced processing aids are used at the
Fayetteville Works site"; and (iii) "[a]ll process wastewater generated from this manufacturing
facility is collected and shipped off -site for disposal. No process wastewater from this
manufacturing facility is discharged to the site's biological WWTP or to the Cape Fear River."
The PPA was not identified.' But, even if the PPA had been identified as APFO or GenX or both,
we cannot discern how these statements would put DEQ or the public on notice that the Fayetteville
Works is causing APFO or GenX to be discharged to the Cape Fear River.
2016. Most recently, Chemours included in its April 27, 2016 NPDES Permit Renewal
Application statements identical to those in its 2011 application as quoted above.
The DuPont and Chemours statements in 2006, 2011, and 2016 also appear to be echoed
in notes of DEQ's Mr. Behrick, taken at meetings with DuPont in 2010 and again in 2015, which
indicate that GenX waste streams are captured and incinerated off -site. 2 We also note that the
Final RCRA Facility Investigation (RFI) Report, dated August 2014 and submitted to DEQ by
DuPont under the Hazardous and Solid Waste Corrective Action Program, likewise represents that
APFO was manufactured at the facility but was "never used in any of the other manufacturing
facilities at the Site." RF I at 3.
In short, the records cited as supporting the Purported DEQ Statement appear to us to
contradict it. The records do not appear to us to support a conclusion that "Chemours informed
them in its most recent discharge permit application and 'all previous applications' that it was
releasing GenX and other related substances from the Fayetteville Works plant into the Cape Fear
River." If DEQ's position has been misstated or misreported or there are other documents not
provided in response to the CFPUA's public records request that provide further clarification,
' The unidentified PPA may have been both APFO and GenX because: (i) the PPA statements
replace the prior application's statements about the manufacture of APFO ; (ii) APFO was still
being manufactured at the time, but the company was transitioning to GenX around this time; (iii)
DuPont's GenX fact sheet describes GenX as a processing aid; and (iv) during its June 12, 2107
meeting with DEQ personnel, Chemours apparently characterized GenX and APFO as processing
aids manufactured in the PPA section of the Fayetteville Works site (see handwritten notes from
DEQ file).
2 Mr. Belnick's notes were the subject of our prior letter to DEQ, dated June 23, 2017.
DEQ-CFW-00079941

please advise us. If DEC s position has been accurately reported, the CFPUA requests that
position be reversed.
As we have reviewed the records, we have been mindful of the N.C. Drinking Water Act
and its implementation in 15A NCAC 18C .1209: "No untreated domestic sewage or industrial
waste by-products shall be discharged into any public water supply reservoir or stream classified
as DVS-11, WS-111, WS-IV, or WS-V." Given Chemours' position that its GenX discharges
occurred only as "industrial byproducts," we doubt that DECK in prior years would have knowingly
allowed the discharge of these "byproducts" to have occurred.
In any event, much has been revealed in recent weeks that is not included in the Chemours
and DuPont NPDES permit applications. CFP1JA requests that the new information be brought to
bear and that the current NPDES permit under consideration expressly prohibit the discharge of
GeihX, C8, and perfluorinated byproducts into the Cape Fear River.
Sincerely,
-",C org r. House
. .. .. .. ..
j0§ePh"r .4
AttdZYSTir CFPtfk
cc: Bill Lane
DEQ-CFW-00079942