Loading...
HomeMy WebLinkAboutDEQ-CFW_00074515BROOKs6b., �—'"I PIERCE FOUNDED 1897 June 19, 2017 By email to: michael.regam@ncdenr.gov 2000 RENAISSANCE PLAZA 230 NORTH ELM STREET GREENSBORO,NC 27401 T 336,373.8850 F 336.378.1001 W W W.BROOKSPIERCE.COM RECEIVED Office of the Secretary JUN 2 0 2017 By FedEx to: Secretary Michael S. Regan Department of Environmental ouai ty Department of Environmental Quality 217 West Jones Street Raleigh, North Carolina 27603 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 "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 ("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. DEQ-CFW 00074515 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. NCO003573 (the "Chemours Permit"). We also understand that the application is still under consideration by DEQ. 2 DEQ-CFW 00074516 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. 3 DEQ-CFW 00074517 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.G. 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 DEQ-CFW 00074518 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, �ge W. H �sse- V. Randall Tinsley DEQ-CFW 00074519 Exhibit 1 (CFPUA Resolution) DEQ-CFW 00074520 CAPE FEAR PUBLIC U71LITY 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 application for NPDES Permit NCO003573 dated April 27, 2016 did not disclose to the North Carolina Department of Environmental Quality ("DEW) and the public that its effluent wastewater contained fluorochemical 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 reviewer! 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 per in the environment, could blo-accumulate, and be toxic (."PBT") to people, wild mammals and birds. EPA's concerns are based upon data on the PMN substances, analogy to other [ ) 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 man 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 wastee 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. DEQ-CFW 00074521 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]." 1SA NCAC 28.0216(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.(5). 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 CFPUA's water users and should promptly take all such actions. Now, therefore, be it resolved: 1. CFPUA requests DEQ. a. To immediately modify NPDES Permit NCQ003573 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 wih 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 bioaccumuiation; 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 La. and b. have been completed. 2. The CFPUA requests EPA determine whether Chemours has: DEQ-CFW 00074522 a. 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 bioaccumulation and to immediately modify PMN P-08-508 and P-08-509 to prevent the discharge of any fluorochemical compounds into the Cape Fear River until these determinations can be made. 4. CFPUA requests Chemours act responsibly and cease all discharges that contain flucrochemical 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. Michael C. Brown, III Chairman of the Board Attest: C. Lawrence Sneeden, Secretary DEQ-CFW 00074523