DEQ-CFW_00074203

BROOKS
PIERCE
RECEWD
Offtasof the S9"WrY
JUL 2 6 2017
pepsnment of EnAronmentai Qu811ty
July 24, 2017
By email to: michael.regan(incdenr.gov
By FedEx to:
Secretary Michael S. Regan
Department of Environmental Quality
217 West Jones Street
Raleigh, North Carolina 27603
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Gn tNs t ncz, NC 2,74011
T 336.313.8350
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Re: • GenX Pollutants in the Cape Fear River Are Not Unregulated Substances
• Allowable Concentration in Cape Fear River Is Zero (or Non -Detectable)
100% Removal Required for Chemours Wastewater Discharge
Dear Secretary Regan:
We are environmental counsel for the Cape Fear Public Utility Authority
("CFPUA'). This letter follows up our prior requests to the Department of
Environmental Quality for actions to address the GenX Pollutants problem in the
Cape Fear River. CFPUA's prior requests included the addition of certain conditions
to the NPDES permit for the Chemours Fayetteville Works or outright permit denial.
This letter provides additional regulatory analysis of the State of North
Carolina's authority and duty to include in the Chemours NPDES permit the
following (assuming the permit will not be denied):
- A water quality -based effluent limitation that prohibits any discharge of
GenX Pollutants which are subject to a North Carolina water quality
standard which restricts "deleterious substances" and "other wastes"; and
- A technology -based effluent limitation that requires removal of 100% of
GenX Pollutants from the Chemours wastewater discharge because 100%
removal has been demonstrated to be the practicable waste treatment and
disposal alternative with the least adverse impact on the environment.
DEQ-CFW 00074203

1. GenX Pollutants
The following pollutants are identified collectively as "GenX Pollutants":
(1) chemicals collectively identified by DuPont Company and The Chemours
Company FC, LLC as "GenX";
(2) chemicals that are structurally or functionally or otherwise similar to
GenX that result from the manufacture, use, processing, treatment, or
disposal of GenX;
(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.
We understand that Chemours has applied for reissuance of the NPDES
permit for a discharge of pollutants to the Cape Fear River from its Chemours
Company — Fayetteville Works near Fayetteville, North Carolina, NPDES Permit No.
NCO003573 (the "Chemours Permit") and that the application is still under
consideration by DEQ. GenX Pollutants have been and apparently continue to be
among the pollutants that are discharged into the Cape Fear River from the
Chemours Fayetteville Works at Outfall 002 (and perhaps elsewhere at the
Fayetteville Works).
As discussed in more detail below, the Chemours Permit (if reissued or
reopened) must include two kinds of effluent limitations that restrict or prohibit the
discharge of GenX Pollutants from the Fayetteville Works.
2. Water Quality Standard Prohibits GenX Pollutants
GenX Pollutants, both collectively and individually, are substances that are
regulated pursuant to the following water quality standard:
Oils, deleterious substances, colored, or other wastes: only such
amounts as shall not render the waters injurious to public health,
secondary recreation, or to aquatic life and wildlife, or adversely affect
the palatability of fish, aesthetic quality, or impair the waters for any
designated uses.
15A NCAC 2B.0211(12).
DEQ-CFW-00074204

In this case, GenX Pollutants have been and apparently are being disposed of
in the Cape Fear River and are therefore waste. GenX Pollutants are subject to
regulation under 15A NCAC 2B .0211(12) as "other wastes."
"Deleterious substance" is not defined by North Carolina statutes or rules.
"Deleterious" is an adjective that means "injurious to health" or "harmful; injurious."
httn://www.dictionary.com/browse/deleterious?s=t (site viewed July 20, 2017).
Published records and reports indicate that GenX is a substance that is injurious to
health and harmful.
For example, on January 26, 2009, DuPont and EPA entered into a TSCA
Consent Order for premanufacture notices for GenX (P-08-508 and P-08-509) that
stated that "EPA has concerns that [GenX] will persist in the environment, could
bioaccumulate, and be toxic ("PBT") to people, wild mammals, and birds," and that,
based on available data, "EPA has human health concerns" for GenX. TSCA Consent
Order at vii. Due to the likelihood that GenX would be used as a major substitute for
C8, EPA determined that "more information is needed on the toxicity and
pharmacokinetics" of GenX, and noted the "high concern for possible environmental
effects over the long-term." TSCA Consent Order at xi xii. Accordingly, EPA
concluded that "uncontrolled manufacture, import, processing, distribution in
commerce, use, and disposal of [GenX] may present an unreasonable risk of injury to
human health and the environment." TSCA Consent Order at xv. Due to the stated
concerns of EPA, the Consent Order authorized the manufacture of GenX but
required that DuPont "recover and capture (destroy) or recycle [GenX] at an overall
efficiency of 99% from all effluent process streams and the air emissions (point source
and fugitive)." TSCA Consent Order at 36.
More recently and with more information from actual experience with
environmental releases of GenX, the National Institute for Public Health and the
Environment, The Netherlands, stated the following:
Since 2012, Chemours [at a plant in Europe] is using the GenX
technology to produce plastics (fluoropolymers). In this technology, the
substances FRD-902, FRD-903, and El replace the controversial PFOA
substances.
x�*
Like PFOA, FRD-903, FRD-902, and E1 are perfluorinated
hydrocarbons and poorly degradable in the environment. Also, FRD-902
and FRD-903 are causing similar harmful effects as PFOA (such as
carcinogenic [effects] and effects on the liver).
Evaluation of substances used in the GenX technology by Chemours, Dordecht (2016)
at page 3 of 92.
3
DEQ-CFW 00074205

Thus, GenX is a deleterious substance and is therefore subject to regulation by
DEQ pursuant to the North Carolina water quality standard, 15A NCAC 2B
.0211(12).
The same regulatory analysis applicable to GenX (discussed above) also applies
to GenX Pollutants, which consist of GenX and substances that are similar to GenX.
GenX Pollutants in the Cape Fear River have been disposed of and are "other wastes"
subject to regulation under 15A NCAC 2B .0211(12). Moreover, GenX Pollutants
should all be expected to have effects on human health and the environment like
those of GenX, and should be subject to regulation under 15A NCAC 2B 0211(12) as
deleterious substances.
The water quality standard allows deleterious substances and other wastes to
be present in the Cape Fear River only in such amounts that are shown to not cause
any of three kinds of problems. An allowable amount is one that:
(1) shall not render the waters injurious to public health, secondary
recreation, or to aquatic life and wildlife (the "Shall Not Injure Amount"
or "SNIN');
(2) shall not adversely affect the palatability of fish or aesthetic quality; and
(3) shall not impair the waters for any designated uses.
Under 15A NCAC 2B .0211(12) it is not enough that an amount of a deleterious
substance or other waste might not or even probably won't have a prohibited effect.
The plain language of the water quality standard only allows an amount of a
deleterious substance or other waste that shall not have any of the three prohibited
effects.
The allowable amounts of GenX Pollutants in a surface water body have not
yet been determined. A portion of a SNILA determination may have been completed
by the NCDHHS when it published a health goal for GenX, but the health goal has
not been identified by DEQ as being applicable to or satisfying even part of the water
quality standard15A NCAC 2B .0211(12). Further, the health goal apparently does
not address non -cancer effects or effects on secondary recreation or aquatic life or
wildlife for an SNIA. In addition, we are aware of no findings that support
determinations of no adverse effect on the "palatability of fish or aesthetic quality or
of no impairment of designated uses.' Thus, even if DEQ considers the NCDHHS,
health goal to be applicable, the required analysis and findings to identify an
1 The designated uses include drinking water supply, which should be considered
impaired at detectable concentrations of GenX Pollutants. We note that the "no
impairment of use" standard is stricter than the "no preclusion of use" standard at
15A NCAC 2B.0216(2).
DEQ-CFW-00074206

allowable amount of GenX Pollutants have not been completed. Therefore, any
detectable amount of GenX Pollutants in the Cape Fear River violates 15A NCAC 2B
.0211(12).
3. Permit Conditions Must Prohibit GenX Pollutants and. Require 100%
Removal of GenX Pollutants
As discussed below, DEQ has a duty to include the following conditions in the
Chemours NPDES Permit (assuming it will be reissued or reopened):
- A water quality based effluent limitation ("WQBEL") that prohibits the
discharge of GenX Pollutants until acceptable concentrations of these
pollutants are determined in compliance with 15A NCAC 2B .0211(12).
A technology based effluent limitation C TBEL") that requires. 100%
removal of GenX Pollutants from wastewater.
DEQ has a nondiscretionary duty to include conditions in the Chemours
Permit that reasonably ensure compliance with applicable water quality standards
and regulations. 15A NCAC 2H .O112(c). If such conditions are not or cannot be
inch -lad, the Chemours Permit cannot lawfully be reissued: "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).
In addition, the burden is not on DEQ to obtain sufficient information to
formulate the conditions. It is Chemours' duty to provide the Information: "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." 15A NCAC 2H .O112(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, it is DEQ's non -
discretionary duty to deny Chemours' application for permit renewal or at least
prohibit discharges from any portion of the Chemours Fayetteville Works for which
compliance cannot reasonably be ensured.
3.1. Zero Discharge WQBEL
Water quality based effluent limitations are included in NPDES permits
when. aver necessary to reasonably ensure that a water quality standard will not be
violated. Until Chemours provides sufficient evidence to reasonably ensure that the
inclusion of GenX Pollutants in its discharge to the Cape Fear River complies with
water quality standard 15A NCAC 2B .0211(12), the Chemours Permit (if reissued)
must prohibit any detectable amount of GenX Pollutants in the discharge. 15A NCAC
211.0112(c).
5
DEQ-CFW 00074207

3.2. 100% Removal TBEL
DEQ has a duty to include in the Chemours Permit a technology based effluent
limitation that requires 100% removal of GenX Pollutants from its wastewater
(assuming the permit is reissued). 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.
15A NCAC 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).
Most importantly, 100% removal is mandated by statute:
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 of GenX Pollutants is now well -documented.
The practicability of 99% removal of GenX was established early on by EPA's TSCA
Consent Order, discussed above. More recently, Chemours established the
practicability of 100% removal of GcnX when it announced that it would implement
100% removal at the Fayetteville Works. Because the GenX Pollutants are so similar
to Cir,,ziX, 100% removal of those pollutants must also be determined to be practicable.
T
DEQ-CFW 00074208

Conclusion
On behalf of CFPUA, if the Chemours Permit will be reissued, we request the
Department of Environmental Quality exercise its authority to prohibit the discharge
of GenX Pollutants into the Cape Fear River, one of the most important drinking
water sources in North Carolina. If the Chemours Permit will not be reissued soon
with the requested conditions for GenX Pollutants, we request that DEQ immediately
re -open the current permit and add the requested permit conditions.
Sincerely,
eorge W. House
V. Randall Tinsley
Joseph A. Ponzi
7
DEQ-CFW 00074209