DEQ-CFW_00084037

STATE OF NORTH CAROLINA
[4-MMW#WAU#3z9= 03 NO
STATE OF NORTH CAROLINA, ex rel.,
MICHAELS. REGAN, SECRETARY,
NORTH CAROLINA DEPARTMENT OF
ENVIRONMENTAL QUALITY,
Plaintiff,
V.
THE CHEMOURS COMPANY FC, LLC,
Defendant.
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
17 CVS 580
The State of North Carolina, complaining of the Defendant, alleges and says:
1. Plaintiff is the sovereign State of North Carolina. This action is being brought on
the relation of Michael S. Regan, Secretary of the North Carolina Department of Environmental
Quality ("DEQ"), the State agency established pursuant to N.C. Gen. Stat. § 14313-279.1 et seq.,
and vested with the statutory authority to enforce the State's environmental protection laws,
including laws enacted to protect the water quality of the State. The Division of Water Resources
("-DWR") is a division within DEQ and all actions taken by DWR are necessarily actions of the
Plaintiff.
2. Defendant The Chemours Company FC, LLC ("Chemours"), is a Delaware limited
liability company registered and doing business in North Carolina. Defendant owns and operates
a facility known as the Fayetteville Works ("Facility") located at 22828 NC Highway 87 W,
DEQ-CFW-00084037

Fayetteville, Bladen County, North Carolina, which is the subject of this action.
3. The Superior Court has jurisdiction over this action for injunctive relief for existing
or threatened violations of various laws and rules governing the protection of water quality
pursuant to N.C. Gen. Stat. § 143-215.6C. Furthermore, jurisdiction for injunctive relief sought to
compel enforcement of a statute or regulation rests in the Superior Court pursuant to N.C. Gen.
Stat. § 7A-245(a)(2) and N.C. Gen. Stat. § 1-493.
MUMM
4. Bladen County, North Carolina is a proper venue for this action because a
significant portion of the violations or threatened violations that are the subject of this action for
injunctive relief have occurred, are occurring, and may continue to occur at Chemours' Fayetteville
Works facility in Bladen County. N.C. Gen. Stat. § 143-215.6C.
NATURE OF THE ACTION
5. This Action is commenced by the State of North Carolina for the purpose of seeking
injunctive relief to enforce its water quality laws. Chemours has contaminated North Carolina's
public water resources, including surface waters and groundwater. First, for decades Chemours
has been discharging into the Cape Fear River a chemical known as "GenX" and related
compounds, which EPA and various health studies have recognized may present all unreasonable
risk of injury to human health and the environment. Despite its knowledge of these risks,
Chemours failed to disclose and even made statements that misled DEQ as to the presence of GenX
and related compounds in its process wastewater. Second, Chemours' chemical manufacturing
operation has caused widespread and significant groundwater contamination, with levels of GenX
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that exceed by orders of magnitude the regulatory limit set forth in North Carolina's groundwater
rules and the health goal set by the North Carolina Department of Health and Human Services.
The State is entitled to injunctive relief.
The Clean Water Act and North Carolina's NPDES Program
6. The Federal Clean Water Act prohibits any person from discharging pollutants into
surface waters without first obtaining an appropriate permit. 33 U.S.C. § 1311. All persons are
therefore required to obtain a National Pollution Discharge Elimination System ("NDPES") permit
prior to the discharge of pollutants into surface waters through a point source. 33 U.S.C. § 1342.
7. Like other federal environmental programs, the Clean Water Act was designed to
incorporate principles of cooperative federalism, authorizing individual states to assume
responsibility for implementation of an NPDES Program upon statutory authorization and
application to the United States Environmental Protection Agency ("EPA"). 33 U.S.C. § 1342(b).
8. EPA approved North Carolina's NPDES program in 1975. North Carolina's
NPDES program is carried out in part pursuant to a Memorandum of Agreement between the State
and EPA. See National Pollution Discharge Elimination System Memorandum of Agreement
Betiveen the State of NC and the US EPA Region 4 (October 15, 2007) ("MOA"), available at
https://www.epa.gov/'sites/production/files/20 13 )-09/documents/ne-moa-npdes.pdf.
9. As recognized in the MOA, North Carolina has authority to take action to enforce
violations of 33 U.S.C. § 1311. of the Clean Water Act, which prohibits the unpermitted discharge
of pollutants into surface waters. MOA § VI.A.2.a: N.C. Gen. Stat. § 14' ) -215. 1.
10, North Carolina's statutes implementing the NPDES program are set forth in Article
N
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21 of Chapter 143 of the North Carolina General Statutes.
11. North Carolina's water quality statutes and the rules adopted under them are
designed to further the public policy of the State, as stated in N.C. Gen. Stat. § 143-211, "to provide
for the conservation of its water and air resources ... [and], within the context of this Article [21 ]
and Articles 21 A and 21 B of this Chapter [ 143], to achieve and to maintain for the citizens of the
State a total environment of superior quality."
12. North Carolina's primary statute for implementing its NPDES permitting program
is N.C. Gen. Stat. § 143-215.1, which requires a permit from the Environmental Management
Commission ("EMC") before any person can "make any outlet into waters of the state," or
[c]ause or permit any waste, directly or indirectly, to be discharged to or in any
manner intermixed with the waters of the State in violation of the water quality
standards applicable to the assigned classifications or in violation of any effluent
standards or limitations established for any point source, unless allowed as a
condition of any pen -nit ....
13. The EMC has the power to issue permits with such conditions as the EMC believes
are necessary to achieve the purposes of Article 21 of Chapter 143 of the General Statutes,
including NPDES permits, N.C. Gen. Stat. § 143-215. 1 (b). The EMC also has the power "[flo
make rules implementing Articles 21" including standards and procedures to implement North
Carolina's NPDES program. N.C. Gen. Stat. § 14313-282 et seq.
VOWN
14. The EMC has adopted rules that delegate the authority to issue NPDES permits to
15. The regulations implementing the State's NPDES permitting process are set forth
in subchapter 2H of Title 15A of the North Carolina Administrative Code. Under these rules, the
permit applicant has "the burden of providing sufficient evidence to reasonably ensure that the
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proposed system will comply with all applicable water quality standards." 15A N.C.A.C. 2H
.0112(c). These rules further provide "no permit may be issued when the imposition of conditions
cannot reasonably ensure compliance with applicable water quality standards." Id.
16. Part of the permit applicant's burden in this regard is to disclose all relevant
information, such as the presence of known constituents in a discharge that pose a potential risk to
human health. The permit applicant is required to disclose "all known toxic components that can
be reasonably expected to be in the discharge, including but not limited to those contained in a
priority pollutant analysis." 15A N.C.A.C. 2H.01050) (emphasis added).
17. While the North Carolina Administrative Code does not contain a definition of
"toxic component," North Carolina water quality regulations define "toxic substance" to include:
any substance or combination of substances (including disease -causing agents),
which after discharge and upon exposure, ingestion, inhalation, or assimilation into
any organism, either directly from the environment or indirectly by ingestion
through food chains, has the potential to cause death, disease, behavioral
abnormalities, cancer, genetic mutations, physiological malfunctions (including
malfunctions or suppression in reproduction or growth) or physical deformities in
such organisms or their offspring.
15A N.C.A.C. 2B .0202(64).
18. These disclosure obligations do not cease upon issuance of a permit. Rather, they
are ongoing. Pursuant to NPDES Standard Permit Condition ll.E.8, "Where the Permittee
becomes aware that it failed to submit any relevant facts in a permit application ... or in any report
to the Director, it shall promptly submit such facts or information." See NPDES Standard Permit
Conditions, attached hereto and incorporated herein as Exhibit A; see also 40 C.F.R. 122.41(1)(8).
19. These disclosure obligations are critical, in part, because they define the scope of
the Clean Water Act's "permit shield." While compliance with the express terms of an NPDES
permit generally "shields" the permittee from liability for violations of 33 U.S.C. § 1311, the
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DEQ-CFW-00084041

permit does not shield the permittee from liability where the pollutant being discharged was not
within the "reasonable contemplation" of the permitting agency when it issued the permit due to
nondisclosure by the permittee. 33 U.S.C. § 1342(k); see also Piney Run Pres. Assn v, Cty.
Comm'rs of Carroll Cty., MD, 268 F.3d 255, 265 (4th Cir. 2001). Indeed, EPA's guidance
regarding the permit shield provides that a permit only "provides authorization and therefore a
shield for ... pollutants resulting from facility processes, waste streams and operations that have
been clearly identified in the permit application process when discharged from specified outfalls."
EPA, Revised Policy Statement on Scope of Discharge Authorization and Shield Associated with
NPDES Permits, available at ht!gs-_
/�/www�3.ea. gov/npdes/pubs/owm0131.pdf t�ibs/ow�mOj 331 �.df (emphasis added).
20. The importance and accuracy of disclosures to the agency is underscored by the
signatory requirements set forth in NPDES Permit Standard Conditions and 40 CFR 122.22, which
require all "applications, reports or information submitted to [DEQ]" to be signed by a responsible
official and accompanied by the following certification:
I certify, under penalty of law, that this document and all attachments were prepared
under my direction or supervision in accordance with a system designed to assure
that qualified personnel properly gather and evaluate the information submitted.
Based on my inquiry of the person or persons who manage the system, or those
persons directly responsible for gathering the information, the information
submitted is, to the best of my knowledge and belief, true, accurate and complete.
I am aware that there are significant penalties for submitting false information,
including the possibility of fines and imprisonment for knowing violations.
11 1
See Exhibit A § II.B.1 Ld (emphasis added).
21. The NPDES Standard Permit Conditions also impose a duty on permittees to take
"ail reasonable steps to minimize or prevent any discharge ... in violation of this permit with a
reasonable likelihood of adversely affecting human health or the environment." Exhibit A § II.B.2.
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Surface Water Classifications and Standards
22. North Carolina's water quality program takes a three -pronged approach to
protecting North Carolina's surface waters. First, it establishes surface water classifications based
on the "best uses" of surface waters. See 15A N.C.A.C. 2B .0101; N.C. Gen. § 143-214.1(b).
Second, it establishes water quality standards for each classification in Subchapter 2B of Title 15A
of the North Carolina Administrative Code ("M Rules") to protect the assigned uses of each
classification. See, e.g., 15A N.C.A.C. 2B.0216(1),15A N.C.A.C. 2B.021 1. And third, it assigns
these classifications to individual segments of surface waters throughout the State. See 15A
N.C.A.C. 2B.0201.
23. The relevant segment of the Cape Fear River into which the Facility's discharge
flows is classified as "Class WS-IV." The best usage of WS-IV waters is defined as "a source of
water supply for drinking, culinary, or food -processing purposes ... and any other best usage
specified for Class C waters." 15A N.C.A.C. 2B .0216(1). Best usage for Class C waters includes
;;aquatic life propagation and maintenance of biological integrity (including fishing and fish),
wildlife, secondary recreation, [and] agriculture." 15A N.C.A.C. 2B .021 l(I). "Sources of water
pollution that preclude any of these uses on either a short term or long term basis shall be
considered to be violating a water quality standard." 15A N.C.A.C. 2B .0211(2), 2B .0216(2).
24. Class C and WS-IV Waters are also subject to "Water Quality Standards for Toxic
Substances." 15A N.C.A.C. 2B .0208. Pursuant to 15A N.C.A.C. 2B .0208, "the concentration
of toxic substances, either alone or in combination with other wastes, in surface waters shall not
render waters injurious to aquatic life or wildlife, recreational activities, public health, or impair
the waters for any designated uses," Specifically, "the concentration of toxic substances shall not
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exceed the level necessary to protect human health through exposure routes of fish tissue
consumption, water consumption, or other route identified as appropriate for the water body."
15A N.C.A.C. 2B .0208(a)(2).
25. In addition to regulating surface waters, the EMC has promulgated rules in 15A
N.C.A.C. Subehapter 2L (the "2L Rules") that "establish a series of classifications and water
quality standards applicable to the groundwaters of the State." 15A N.C.A.C. 2L .0101(a).
"Groundwaters" are defined in the 2L Rules as "those waters occurring in the subsurface under
saturated conditions." 15A N.C.A.C. 2L .0102(11).
26. The 2L Rules "are applicable to all activities or actions, intentional or accidental,
which contribute to the degradation of groundwater quality, regardless of any permit issued by a
governmental agency authorizing such action or activity," except in certain situations not
applicable here. 15A N.C.A.C. 2L .0101(b).
27. The 21, Rules "are intended to maintain and preserve the quality of the
groundwaters, prevent and abate pollution and contamination of the waters of the state, protect
public health, and permit management of the groundwaters for their best usage by the citizens of
North Carolina." 15A N.C.A.C. 2L.0103(a). The policy section of the 2L Rules provides further
UM
[i]t is the policy of the Commission that the best usage of the groundwaters of the
state is as a source of drinking water. These groundwaters generally are a potable
source of drinking water without the necessity of significant treatment. It is the
intent of these Rules to protect the overall high quality of North Carolina's
groundwaters to the level established by the standards and to enhance and restore
the quality of degraded groundwaters where feasible and necessary to protect
human health and the environment, or to ensure their suitability as a future source
of drinking water.
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DEQ-CFW-00084044

15A N.C.A.C. 2L.0103(a).
28. The policy section of the 2L Rules provides further that "[n]o person shall conduct
or cause to be conducted, any activity which causes the concentration of any substance to exceed
that specified in Rule .0202 of this Subchapter, except as authorized by the rules of this
Subchapter." 15A N.C.A.C. 2L .0103(d).
29. "Contaminant" is defined in the 2L Rules as "any substance occurring in
groundwater in concentrations which exceed the groundwater quality standards specified in Rule
0202 of the Subchapter." 15A N.C.A.C. 21-0102(4).
30. "Natural conditions" are defined in the 2L Rules as "the physical, biological,
chemical and radiological conditions which occur naturally." 15A N.C.A.C. 2L .0102(16).
31. The groundwater standards set forth in the 2L Rules are "the maximum allowable
concentrations resulting from any discharge of contaminants to the land or waters of the state,
which may be tolerated without creating a threat to human health or which would otherwise render
the groundwater unsuitable for its intended best usage." 15A N.C.A.C. 2L .0202(a).
32. With certain exceptions not relevant here, "substances which are not naturally
occurring and for which no standard is specified shall not be permitted in concentrations at or
above the practical quantitation limit" in groundwaters. 15A N.C.A.C. 2L .0202(c).
33. The "practical quantitation limit" or "PQL" is defined as "the lowest concentration
of a given material that can be reliably achieved among laboratories within specified limits of
precision and accuracy by a given analytical method during routine laboratory analysis." 15A
N.C.A.C. 2L .0102(15).
34. "Any person conducting or controlling an activity that results in the discharge of a
DEQ-CFW-00084045

waste or hazardous substance or oil to the groundwaters of the State, or in proximity thereto, shall
take action upon discovery to terminate and control the discharge, mitigate any hazards resulting
from exposure to the pollutants and notify the Department." 15A N.C.A.C. 2L .0106(b).
35. Pursuant to the 2L Rules, "[flnitial response required to be conducted prior to or
concurrent with the assessment required" as set forth above "shall include" among other things,
(2) abatement, containment, or control of the migration of contaminants; (3)
removal, treatment, or control of any primary pollution source such as buried waste,
waste stockpiles, or surficial accumulations of free products; (4) removal,
treatment, or control of secondary pollution sources that would be potential
continuing sources of pollutants to the groundwaters, such as contaminated soils
and non -aqueous phase liquids.
15A N.C.A.C. 21, .0106(f).
Standard for Injunctive Relief Under N.C. Gen. Stat. § 143-215.6C
36. Whenever DEQ has reasonable cause to believe that any person has violated or is
threatening to violate any of the provisions of the State's water quality laws or administrative rules,
DEQ is authorized to "request the Attorney General to institute a civil action in the name of the
State upon the relation of [DEQ] for injunctive relief to restrain the violation or threatened
violation." N.C. Gen. Stat. § 143-215.6C. That section further provides that "[u]pon a
determination by the court that the alleged violation of the provisions of this Part or the regulations
of the Commission has occurred or is threatened, the court shall grant the relief necessary to
prevent or abate the violation or threatened violation." N.C. Gen. Stat. § 143-215.6C.
37. When the State brings an action to vindicate the public interest pursuant to a statute
which provides for injunctive relief to abate violations of law, the usual test for issuance of
injunctions need not be met. See State ex rel. Morgan v. Dare To Be Great, Inc., 15 N.C. App,
275, 189 S.E.2d 802 (1972) (negating the general rule that there will be no equitable relief if there
11M
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is an adequate remedy at law when the statutory scheme provided the State with injunctive relief
under the circumstances presented). For example, the State is not required to show actual injury,
such as irreparable harm, in order to obtain injunctive relief, including a preliminary injunction.
State ex rel. Edinisten v. Challenge, Inc., 54 N.C. App. 513, 521-22,284 S.E.2d 333, 338-39 (1981)
(explaining that irreparable harm need not be established by the State as long as the statutory
conditions for issuance of a preliminary injunction exist). Rather, it must show only that the acts
or practices complained of adversely affect the public interest. See id. An adverse effect on the
public interest exists as a matter of law where the statutory conditions for issuance of injunctive
relief are present, i.e., where a violation of the applicable statute or regulations exists or is
threatened. Id. at 522, 284 S.E.2d at 339.
FACTUAL ALLEGATIONS
The Fayetteville Works Facility
38. The Chemours Company - Fayetteville Works, formerly known as the Dupont
Company - Fayetteville Works, (the "Facility") is a chemical manufacturing facility with
manufacturing areas operated by three separate companies, including Chemours.
39. Upon information and belief, E. 1. DuPont de Nemours & Company, Inc.
("DuPont"), began its Nafiong manufacturing process at the Facility in the 1970s. Since that time,
the Facility's business has expanded to include other chemical manufacturing processes.
40. The Facility discharges wastewater pursuant to National Pollutant Discharge
Elimination System Permit No. NCO03573 ("NPDES Permit"), the most recent version of which
was issued by DWR on October 28, 2015. The NPDES Permit is attached hereto and incorporated
herein as Exhibit B.
DEQ-CFW-00084047

41. Upon information and belief, Chemours took ownership of the Facility and the
NPDES Permit in 2015.
42. Upon information and belief, the Chemours Fluoromonomers/NafionO Membrane
Manufacturing Area produces, among other products, Chemours Nafion®RMembrane and Polymer
Dispersions, HFPO monomers and vinyl ether monomers. See NPDES Permit Application dated
April 27, 2016, Supplemental Information at 3, attached hereto and incorporated herein as Exhibit
C; see also Facility Map, attached hereto and incorporated herein as Exhibit D.
43. Upon information and belief, the Chemours Polymer Processing Aid ("PPA")
Manufacturing Area produces a polymer processing aid, also referred to as "GenX." Exhibit C,
Supplemental Information, at 3.
44. Upon information and belief, GenX falls within a family of chemicals known as
per- and polyfluoroalkyl substances or "PFASs,"which are commonly used in the manufacture of
nonstick coatings and for other purposes.
45. The Facility also houses areas rented by Kuraray America Inc. for the manufacture
of Butaciter.R) and SentryGlas®R. Another area is rented by DuPont —upon information and belief,
Chemours' predecessor —for the manufacture of Polyvinyl Fluoride ("PVF").
46. The NPDES Permit authorizes discharge of wastewater and stormwater from the
Facility through Outfalls 001 and 002. Outfall 001 is an internal outfall from the Facility's
wastewater treatment plant. Outfall 002 discharges Chemours' treated wastewater into the Cape
Fear River. See Exhibit C, at 5 (figure titled "Chemours Company — Fayetteville Works/Locations
of Intake and Discharge Structures").
47. The segment of the Cape Fear River into which the Facility's wastewater is
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discharged is upstream of various drinking water intakes and is classified as a WS-IV water.
48. The surface water into which the Facility's wastewater is discharged is used as a
public water source that serves residents and businesses in several counties.
Em
49. Upon information and belief, the Facility began producing GenX commercially in
50. Upon information and belief, wastewater from the GenX production process
occurring in the PPA Manufacturing Area has been collected and shipped offsite for disposal since
that time.
51. Upon information and belief, GenX and related compounds have also been
generated as byproducts during other manufacturing processes occurring at the Facility.
52. Upon information and belief, GenX and related compounds generated as
byproducts have been discharged by the Facility into the Cape Fear River since the early 1980s.
53. Upon information and belief. the onsite wastewater treatment plant at the Facility
is ineffective at removing GenX and related compounds from the process wastewater that is
ultimately discharged into the Cape Fear River through Outfall 002.
54. Upon information and belief, public water treatment plants such as the Sweeney
Plant operated by the Cape Fear Public Utility Authority in Wilmington, are ineffective at
removing GenX and related compounds from the water taken from the Cape Fear River.
55, Upon information and belief, GenX and related compounds discharged by the
Facility have been and are present in public drinking water supplied to residents and businesses in
several counties,
56. Upon information and belief, Chemours and DuPont have known for years that
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GenX and related compounds were being generated as byproducts and discharged into surface
waters of the State.
57. On August 31, 2017, EPA submitted a report to DEQ indicating that additional
PFASs had been identified in the Cape Fear River and at Outfall 002, including to two
perfluorethersulfonic acids ("PFESAS"). EPA's August 31, 2017 report is attached hereto and
incorporated herein as Exhibit E.
58. In its report, EPA identified these compounds as "PFESA Byproduct I" and
"PFESA Byproduct 2" and stated that these compounds were likely byproducts from Chemours'
Nafiong manufacturing process. Exhibit E, at 2.
59. Upon information and belief, Chemours continues to knowingly discharge
wastewater containing various PFASs, including the PFESAs identified in EPA's report.
DEQ's Investigation of GenX Contamination in the Cape Fear River
60, In recent months, DEQ, in consultation with the North Carolina Department of
Health and Human Services ("DHHS"), has led a state investigation into the presence of GenX
and related compounds in the Cape Fear River.
61. DHHS set a health goal for exposure to GenX in drinking water of 140 nanograms
per liter ("ng/L") (also referred to as parts per trillion or "ppt"). See DHHS Risk Assessment for
GenX attached hereto and incorporated herein as Exhibit F.
62. On June 19, 2017, DEQ began collecting water samples from twelve sites along
the Cape Fear River.
63. Samples collected at various locations along the Cape Fear River in June of 2017
showed that concentrations of GenX were present in the Cape Fear River at levels that were well
14
DEQ-CFW-00084050

above the DHHS health goal of 140 ppt.
64. Upon information and belief, after discussions with DWR, on or around June 21,
2017, Chemours ceased discharging the wastewater containing GenX from the vinyl ether
monomer production process and began collecting that wastewater and shipping it off -site for
disposal.
65. Upon information and belief, since that time, concentrations of GenX in the Cape
Fear River have steadily declined.
Chemours' Nondisclosure and Misrepresentations Relating to Its Discharge of GenX and
Related Compounds Into the Cape Fear River
66. Upon information and belief, DuPont and Chemours failed to timely disclose to
DWR the discharge of GenX and related compounds into the Cape Fear River.
67. In particular, none of the Dupont or Chemours NPDES permit applications
referenced "GenX" or any chemical name, formula, or CAS number that would identify any GenX
or related compounds in the Facility's discharge.
68. In fact, information provided by DuPont and Chemours led DWR staff to
reasonably believe that GenX was not being discharged into the Cape Fear.
69. On August 26, 2010, representatives of DuPont, including environmental manager
Michael Johnson, met with DEQ staff regarding DuPont's anticipated use of GenX technology at
the Fayetteville Works as a replacement for the compound perfluorooctanoic acid ("PFOA"), also
M.6747 � �_
70. The information DuPont provided indicated that the GenX compounds would be
produced in a closed -loop system that would not result in the discharge of those compounds into
the Cape Fear River.
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DEQ-CFW-00084051

71. Upon information and belief, DuPont and Chemours did not notify DWR of an
actual discharge of GenX or related compounds at this meeting or in any information subsequently
provided to DWR prior to 2017.
72. While DuPont no longer produces C8 or PFOA, its manufacturing history is telling.
73, On May 3, 2001, DuPont submitted an NPDES renewal application to DWR stating
that it intended to begin manufacturing PFOA. The 2001 Application and the 2004 Fact Sheet for
NPDES Permit Development are attached hereto and incorporated herein as Exhibits G and H.
74. During the application process, DuPont represented to DWR that:
a. PFOA does not pose a health concern to humans or animals at levels present in
the workplace or environment;
b. DuPont had used PFOA for forty years with no observed health effects on
workers;
c. PFOA is neither a known developmental toxin nor a known carcinogen. Exhibit
G, at 4 (page titled "Potential Facility Changes"); Exhibit H, at 4.
75. Upon information and belief, EPA launched a "PFOA Stewardship Program" in
January 2006 because of concerns about the impact of PFOA and long -chain PFASs on human
health and the environment, including concerns about their persistence, presence in the
environment and in the blood of the general U.S. population, long half-life in people, and
developmental and other adverse effects in laboratory animals.
76. In 2006, DuPont began to phase out its use of PFOA as part of the PFOA
Stewardship Program, aiming to completely eliminate the use and production of PFOA.
77. Upon information and belief, in 2008 DuPont submitted to EPA notices of its intent
ffo-
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to manufacture GenX pursuant to the Toxic Substances Control Act ("TSCA")
78. On January 28, 2009, EPA and DuPont entered into a Consent Order governing the
manufacture of GenX. A publicly -available redacted version of the Consent Order is attached
hereto and incorporated herein as Exhibit I.
79. The Consent Order provides that "EPA has concerns that [GenX] will persist in the
environment, could bioaccumulate, and be toxic ... to people, wild animals, and birds." Exhibit
1, at vii.
80. The Consent Order also stated that EPA had "human health concerns" regarding
GenX. Exhibit 1, at vii. The Consent Order recognized that "uncontrolled ... disposal of [GenX]
may present an unreasonable risk of injury to human health and the environment." Exhibit 1, at
K"T
81. The Consent Order required DuPont to "recover and capture (destroy) or recycle
[GenX] at an overall efficiency of 99% from all the effluent process streams and the air emissions
(point source and fugitive)." Exhibit 1, at 36.
82. At DuPont's 2010 meeting with DEQ regarding its transition from PFOA to GenX,
DuPont explained that GenX would be produced in a closed -loop system that would not result in
the discharge of GenX into the Cape Fear River.
83. DuPont represented that the wastewater generated from the manufacture of GenX
would be collected and shipped off -site for disposal and therefore this wastewater would not be
discharged into the Facility's wastewater treatment plant or into the Cape Fear River.
84. At no time during this meeting did DuPont notify DWR of an actual discharge of
GenX or related compounds into the Cape Fear River.
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85. On April 29, 2011, DuPont submitted an NDPES permit renewal application,
which is attached hereto and incorporated herein as Exhibit J, confirming that "all process
wastewater generated from [the PPA Manufacturing Area] is collected and shipped offsite for
disposal" and "no process wastewater from this manufacturing facility is discharged to the site's
biological [waste water treatment plant] or to the Cape Fear River." The application made no
mention of GenX or related compounds being discharged into the Cape Fear River.
86. On February 6, 2012, DWR issued a renewal permit with an effective date of March
1, 2012 ("2012 Permit"). The 2012 Permit is attached hereto and incorporated herein as Exhibit
K. The 2012 Permit makes no mention of GenX as part of the authorized discharge from the
Facility.
87. On or around November 10, 2016, the EPA and Dr. Detlef Knappe, professor of
Civil, Construction and Environmental Engineering at N.0 State University, published a study that
identified the presence of GenX and other PFASs in the Cape Fear River. This publication is
attached hereto and incorporated herein as Exhibit L. The study indicated that levels of GenX in
one sample area in the Cape Fear River were as high as approximately 4500 ng/L, Exhibit L, at 3,
which is more than thirty times higher than the health goal set by DHHS.
88. On June 12, 2017, after substantial media coverage regarding the presence of GenX
in the Cape Fear River, Chemours informed DEQ in a meeting that for several decades, GenX and
other PFASs had been produced as byproducts at the Facility and routinely discharged into the
Cape Fear River.
89. In late August, 2017, Chemours provided to DEQ—and only after DEQ's request —
internal health studies on GenX compounds that had been conducted previously by DuPont or
18
DEQ-CFW-00084054

Chemours.
90. DuPont and Chemours' ongoing misrepresentations and inadequate disclosures
shielded important information from DEQ and the public, and they deterred DEQ staff from
inquiring further into the nature of GenX discharges and other related activities at the Facility.
91. Had the appropriate disclosures been made, they would have justified the
application of one or more different permit conditions at the time the Permit was issued, such as
monitoring and reporting requirements, appropriate health -based water quality standards, effluent
limits, or evaluation of alternatives to discharging GenX and other chemicals in the process
wastewater at the Facility.
92. In August of 2017 EPA. reported to DEQ that additional undisclosed byproducts of
concern were detected in samples collected at Outfall 002, including PFESA Byproduct I and
PFESA Byproduct 2. See Ex. E, at 2. Upon information and belief, these compounds are a
byproduct of Chemours' Nafiong manufacturing process.
93. By letter dated August 29, 2017, attached hereto and incorporated herein as Exhibit
M, DWR requested that Chemours "immediately explore any and all options to reduce or eliminate
the release of these chemicals into the Cape Fear River until the State of North Carolina can review
available information related to these chemicals and properly evaluate potential health effects."
94. Neither Chemours nor DuPont ever disclosed to DWR that it was discharging
PFESA Byproduct I or PFESA Byproduct 2 into the Cape Fear River.
95. As of the time of this filing, 2017, DWR has received no indication from Chemours
that it intends to cease discharging PFESA Byproduct I or PFESA Byproduct 2 into the Cape Fear
River.
z
DEQ-CFW-00084055

96. Since learning of the presence of GenX in the discharge from the Facility, DEQ has
sent Chemours several requests for infon-nation to which Chemours has failed to fully respond,
including:
a. A letter dated July 21, 2017 sent by DEQ Secretary Michael S. Regan
requesting records related to the discharge of GenX and other emerging
contaminants, attached hereto and incorporated herein as Exhibit N;
b. A letter dated August 16, 2017 sent by DEQ General Counsel William Lane
requesting access or consent for the release of Chemours' confidential business
information in the possession of EPA, attached hereto and incorporated herein
as Exhibit 0;
c. A letter dated August 18,2017 sent by NPDES Permit Writer Teresa Rodriguez,
requesting detailed information about the wastewater streams at the Facility,
attached hereto and incorporated herein as Exhibit P; and
d. A letter dated August 29,2017 sent by DWR Deputy Director Linda Culpepper,
providing clarification and shortening the deadline for DWR's August 18 letter,
attached hereto and incorporated herein as Exhibit Q.
97. The communications DEQ has received in response to these requests did not
contain complete information.
98. In 2003, DuPont began a groundwater monitoring program at the Fayetteville
Works, testing for various constituents including PFOA.
99. The requirement to conduct this groundwater monitoring was incorporated into the
9E
DEQ-CFW-00084056

Resource Conservation and Recovery Act Facility Investigation Workplan Outline ("R-F1
Workplan"), which is a part of the facility's Hazardous Waste Management Permit, No.
NCD047368642-R2-M3 ("DWM Permit").
100. The DWM Permit was first issued in February of 1984 by DEQ's Division of Waste
Management ("DWM") with the most recent version issued on June 23, 2015. The most recent
version of the DWM Permit is attached hereto and incorporated herein as Exhibit R.
101. The DWM Permit allows the Facility to store and treat hazardous waste, including
waste from the Fluoromonomers/Nafion®R Membrane Manufacturing Area.
102. In 2015, following the detection of certain PFASs (in addition to PFOA) in the Cape
Fear River, DEQ instructed Chemours to conduct supplemental groundwater sampling to
determine whether groundwater flowing from the site was causing these concentrations in the
river.
103. The groundwater sampling results showed an elevated concentration of one of these
PFASs in the groundwater sample from an onsite monitoring well.
104. Chemours provided DEQ only with the PFOA groundwater sampling results, but,
until July of 2017, failed to share the results showing the elevated concentration of this additional
105. In August of 2017, DWM asked for additional groundwater sampling to occur at
the Facility, including sampling for GenX.
106. Because GenX is not naturally occurring in groundwater and no numerical
groundwater standard has been established for GenX, the applicable groundwater standard is the
PQL. See 15A N.C.A.C. 2L .0202(c).
21
DEQ-CFW-00084057

107. Samples were gathered from 14 groundwater monitoring wells and shared with
three laboratories, including the National Exposure Research Laboratory of the EPA ("EPA Lab"),
GEL Laboratories in Charleston, SC ("GEL"), and Test America, a private lab contracted by
Chemours.
108. The data received from GEL show GenX in samples taken from 13 of the 14
monitoring wells at levels greater than the PQL of 10 ng/L, and therefore in violation of the
groundwater standard set forth in the 2L Rules.
109. In fact, GenX has been detected in these 13 wells at levels ranging from 519 to
61,300 ng/L — far greater than the 140 ng/L health goal set by the DIII-IS and the 10 ng/L PQL. A
map generated by DEQ illustrating these well locations and measured concentrations of GenX in
groundwater is attached hereto and incorporated herein as Exhibit S.
110. All five wells located adjacent to the Cape Fear River have GenX levels greater
than 11,800 ng/L.
111. GenX concentrations exceeding the DHHS health goal by orders of magnitude are
site wide — indicating widespread groundwater contamination.
112. On September 6, 2017, DWR and DWM Jointly issued Chemours a notice of
violation and notice of intent to enforce for Chemours' violation of groundwater standards at the
Facility. The notice of violation and notice of intent to enforce is attached hereto and incorporated
herein as Exhibit T.
VIOLATIONS OF NORTH CAROLINA'S WATER QUALITY LAWS
Claim 1: Violation of Groundwater Standards
113. The allegations contained in Paragraphs I through 112 are incorporated into this
►.►
DEQ-CFW-00084058

claim as if fully set forth herein.
114. The applicable groundwater standard for GenX is the Practical Quantitation Limit
or PQL, which is 10 ng/L. A memorandum dated July 13, 2017 from the EPA to Linda Culpepper,
Deputy Director of DWR, documenting the PQL is attached hereto and incorporated herein as
Exhibit U.
115. Concentrations of GenX in groundwater water samples taken from monitoring
wells at the Facility drastically exceed applicable groundwater standards.
116. Chemours' failure to correct these violations constitutes a continuing violation of
the State's water quality laws that, as a matter of law, adversely affects the public interest. See
Challenge, 54 N.C. App. at 522, 284 S.E.2d at 339. The State is therefore entitled to preliminary
and permanent injunctive relief against Chemours to prevent and abate Chemours' violation of
Groundwater Standards pursuant to N.C. Gen. Stat. § 143-215.6C.
Claim 11: Misrepresentation and Violation of NPDES Disclosure Requirements
117. The allegations contained in Paragraphs I through 116 are incorporated into this
claim for relief as if fully set forth herein.
118. Upon information and belief, the process wastewater from the
Fluoromonomers/N,afion®R Membrane Manufacturing Area contains and has contained substances
or combinations of substances which meet the definition of "toxic substance" set forth in 15A
N.C.A.C. 213.0202.
119. Upon information and belief, Chemours was aware that these substances had
potential toxic effects prior to submitting its 2012 Permit Application to DWR.
120. Upon information and belief, by representing to DWR that its GenX manufacturing
IN
DEQ-CFW-00084059

process would be a closed loop system and, therefore, that GenX would not be discharged into
surface waters, and withholding infon-nation regarding its discharge of GenX, Chemours
:n
knowingly misled DWR into believing that GenX was not being discharged from the Facility into
surface waters.
121. Upon information and belief, Chemours violated 15A N.C.A.C. 2H .01050) by
failing to fully disclose all known toxic components reasonably expected to be in the discharge
when it submitted the 2012 Permit Application.
122, Upon information and belief, Chemours violated NPDES Permit Standard
Condition II.E.8, by failing to disclose all known toxic components reasonably expected to be in
the discharge after it became aware that such facts were not disclosed in the 2012 Permit
Application.
12' ). Upon information and belief, Chemours continues to withhold relevant information
regarding the contents of its wastewater discharge and the health risks associated with the chemical
byproducts produced by the Facility and discharged into waters of the State.
124. Chemours' failure to correct these violations constitutes a continuing violation of
the NPDES Permit and the State's water quality laws that, as a matter of law, adversely affects the
public interest. See Challenge, 54 N.C. App. at 522, 284 S.E.2d at 339. The State is entitled to
preliminary and permanent injunctive relief against Chemours to address Chemours'
misrepresentations and violations of NPDES disclosure requirements pursuant to N.C. Gen. Stat.
§ 143-215.6C.
Claim III: Unpermitted Discharge
125. The allegations contained in Paragraphs I through 124 are incorporated into this
24
DEQ-CFW-00084060

claim for relief as if fully set forth herein.
126. The presence of various toxic substances, including GenX and related compounds,
were not in the reasonable contemplation of DWR when it issued the 2012 Permit.
127. Chemours has discharged these substances into the Cape Fear River in violation of
its N.C. Gen. Stat. § 143 -215. 1.
128, Chemours's failure to correct these violations constitutes a continuing violation of
the State's water quality laws that, as a matter of law, adversely affects the public interest. See
Challenge, 54 N.C. App. at 522, 284 S.E.2d at 339.
129. The State is entitled to preliminary and permanent injunctive relief against
Chemours to prevent and abate Chemours' unpermitted discharge pursuant to N.C. Gen. Stat. §
143-215.6C.
1. The allegations contained in Paragraphs I through 129 are incorporated into this
Motion for Temporary Restraining Order as if fully set forth herein.
2. The State is entitled to a temporary restraining order to immediately restrain
Chemours' unlawful discharge of chemical byproducts from its manufacturing processes into
surface waters of the State.
3. As described above, when the State brings an action to vindicate the public interest
pursuant to -a statute which provides for injunctive relief to abate violations of law, the usual test
for issuance of injunctions need not be met. The State is not required to show actual injury, such
as irreparable harm, in order to obtain injunctive relief, including a temporary restraining order.
Rather, it must show only that the acts or practices complained of adversely affect the public
►W
DEQ-CFW-00084061

interest. An adverse effect on the public interest exists as a matter of law where the statutory
conditions for issuance of injunctive relief are present, i.e., where a violation of the applicable
statute or regulations exists or is threatened.
4. Pursuant to N.C. Gen. Stat. 143-215.6C, "[u]pon a determination by the court that
the alleged violation of the provisions of this Part or the regulations of the Commission has
occurred or is threatened, the court shall grant the relief necessary to prevent or abate the violation
or threatened violation."
5. Here a temporary restraining order is necessary to prevent or abate Chemours'
unpermitted discharge of chemical byproducts in violation of N.C. Gen. Stat. § 143-215.1. and to
address Chemours' misrepresentations relating to its discharge of GenX and related compounds.
6. Even if the Court required a further showing of irreparable harm, that test is easily
met here. By failing to disclose the presence of GenX and related compounds in its discharge, and
by misrepresenting that GenX and related compounds were not present in its discharge, Chemours
has caused a state of public alarm and uncertainty regarding the safety of public drinking water.
7. Moreover, Chemours delayed or prevented the State from developing health -based
water quality standards for the GenX and related compounds that Chemours discharged to the
waters of the State. After GenX was disclosed in the Cape Fear River, the State produced a
preliminary health assessment which concludes that GenX has health risks over a certain level.
When GenX was first measured, it was above this health goal in surface water.
8. While the State does not yet have sufficient data to establish a health goal for these
related compounds, given the health risks associated with GenX and other PFASs, the public is
entitled to the protections afforded by the precautionary measures requested in this Motion.
we
DEQ-CFW-00084062

9. Furthermore, as noted in the State's preliminary health assessment, EPA guidance
indicates where contamination is found in surface water and information is lacking about other
sources of exposure in the environment, environmental agencies should assume that drinking water
is not the only source of exposure.
10. An immediate cessation of Chemours' discharge of recently discovered chemical
byproducts is necessary to immediately put a stop to the adverse environmental impacts caused by
Chemours' unlawful discharge and restore public confidence in the safety of drinking water while
this litigation proceeds.
11. While not necessary to prove that a temporary restraining order should issue under
N.C. Gen. Stat. § 143-215.6C, the balance of equities and the public interest strongly favor granting
the temporary injunctive relief sought by this Motion.
12. Accordingly, the State requests that the Court enter a temporary restraining order
directing Chemours' to: 1) immediately cease discharging the substances identified as PFESA
Byproduct I and PFESA Byproduct 2 in Exhibit E, at p. 2, Tbl. 1, from its manufacturing process
into surface waters, and 2) continue to prevent the discharge of process wastewater containing
GenX into waters of the State.
WHEREFORE, the Plaintiff, State of North Carolina, prays that the Court grant the
following relief:
That this verified Complaint be used as an affidavit upon which to base all orders
of the Court.
2. That the Court grant a temporary restraining order requiring Chemours to
a
DEQ-CFW-00084063

a. immediately cease discharging the substances identified as PFESA Byproduct
I and PFESA Byproduct 2 in Exhibit E, at p. 2,Tbl. 1, from its manufacturing
process into surface waters; and
b. continue to prevent the discharge of process wastewater containing GenX into
waters of the State.
3. That the Court preliminarily, and upon final judgment permanently, enter a
prohibitory and/or mandatory injunction requiring Chemours to:
a. Eliminate the discharge of PFASs to surface waters until such time as DEQ
issues a NPDES permit authorizing such discharge or otherwise authorizes such
activities;
b. Remove, treat or control any source of PFASs that has the potential to
contaminate groundwater in accordance with a plan as approved by DEQ and
with such conditions as DEQ shall deem necessary.
c. Complete site assessment activities and submit a plan and proposed schedule
for corrective action to DEQ as required by 15A N.C.A.C. 2L .0106.
d. Take appropriate action to abate the violations of N.C. Gen. Stat. § 143-215.1,
NPDES Permit and groundwater standards at the facility pursuant to a
corrective action plan and schedule approved by DEQ.
e. Comply in full with DEQ's requests for information, attached hereto and
incorporated herein as Exhibits N-Q.
4. That the cost of this action, including attorneys' fees, if allowable, be taxed against
Chemours.
W.
DEQ-CFW-00084064

That this Court grant such other and further relief as the Court shall deem to be just
Respectfully submitted this the 7'h day of September, 2017.
JOSH STEIN
Attorney General
401
By:
F4hcIsco J. Benzord
Assistant Attorney General
N.C. State Bar No. 38660
fbenzonigncdoj.gov
Asher P. Spiller
Assistant Attorney General
N.C. State Bar No. 46425
aspiller2nedoi.gov
N.C. Department of Justice
Environmental Division
PO Box 629
Raleigh, NC 27602
[phone] (phone)
[phone] (fax)
Attorneys for Plaintiff
a
DEQ-CFW-00084065

j0
DEQ-CFW 00084066

Linda Culpepper, being duly sworn, deposes and says that she is the Deputy Director of
the Division of Water Resources of the North Carolina Department of Environmental Quality, that
she has read the foregoing COMPLAINT, MOTION FOR TEMPORARY RESTRAINING
ORDER, AND MOTION FOR PRELIMINARY INJUNCTIVE RELIEF and that she is
acquainted with all of the facts and circumstances stated therein; that the same is true of her own
knowledge, except as to those matters and things stated and alleged upon information and belief,
and as to those matters and things she believes them to be true.
this the 7th day of September, 2017
11,111MMINIM
My Commission Expires: —Ll� �a P --L /
RE
Linda ulpepper
DEQ-CFW-00084067