DEQ-CFW_00075295

BROOKS 1`._.__
-� PIERCE
FQUNDFD i8o7
August 3, 2017
Via Certified Mail
E.I. du Pont de Nemours and Company
c/o CT Corporation System, Registered Agent
160 Mine Lake Court, Suite 200
Raleigh, NC 27615-6417
Ellis H. McGaughy
Fayetteville Works Plant Manager
The Chemours Company FC, LLC
22828 NC Highway 87 West
Fayetteville, NC 28306-7332
V. Anne Heard
Region 4 Administrator
U.S. Environmental Protection Agency
61 Forsyth Street, S.W.
Mail Code: 9T25
Atlanta, GA 30303-8960
Michael S. Regan
Secretary
N.C. Department of Environmental Quality
1601 Mail Service Center
Raleigh, NC 27699-1601
2000 RENAISSANCE PLAZA
230 NORT}I ELM STREET
GREENSBORO, NC 2..7401
T 336.373.8850
F 336.378.1001
WWW.IiROO[(SPIERC.E.COM
The Chemours Company FC, LLC
c/o CT Corporation System, Registered Agent
160 Mine Lake Court, Suite 200
Raleigh, NC 27615-6417
Scott Pruitt
Administrator
U.S. Environmental Protection Agency
William Jefferson Clinton Building
1200 Pennsylvania Avenue, N. W.
Mail Code: 1101A
Washington, DC 20460
Jeff Sessions
U.S. Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001
S. Jay Zimmerman
N.C. DEQ, Division of Water Resources
1611 Mail Service Center
Raleigh, NC 27699-1611
Michael Scott
Governor Roy Cooper
N.C. DEQ, Division of Waste Management
N.C. Office of the Governor
1646 Mail Service Center
20301 Mail Service Center
Raleigh, NC 27699-1646
Raleigh, NC 27699-0301
Josh Stein
N.C. Attorney General
N.C. Department of Justice
9001 Mail Service Center
Raleigh, NC 27699-9001
►' �� AUG - 8 2017
;r;t,rtStiat� OF WATER RESOUR�;C:S
DEQ-CFW 00075295

Re: Notice of Intent to Bring Citizen Suit Against:
(a) The Chemours Company FC, LLC (Chemours) and
(b) E.I. DuPont de Nemours & Company (DuPont)
Ladies and Gentlemen:
Our law firm represents Cape Fear Public Utility Authority ("CFPUA") in connection with
perfluorinated chemicals ("PFCs") released by Chemours and DuPont into the Cape Fear River at
the Fayetteville Works facility. The Fayetteville Works facility is a chemical manufacturing
facility owned and operated by Chemours and is located on the Cape Fear River near Fayetteville,
North Carolina. The Cape Fear River is a major source for drinking water.
CFPUA is a water authority created pursuant to North Carolina General Statutes Chapter
162A that provides potable water to residents of New Hanover County and the City of Wilmington.
One of CFPUA's water supply intakes is located on the Cape Fear River in Bladen County, North
Carolina, downstream of the Fayetteville Works facility.
You are hereby provided notice that CFPUA, through undersigned counsel, intends to file
a lawsuit against Chemours and DuPont in federal court to enforce the requirements of the Clean
Water Act ("CWA") and Resource Conservation and Recovery Act ("RCRA"). The federal court
complaint will allege that: Chemours is in continuing violation of an "effluent standard or
limitation" under the CWA (33 U.S.C. § 1365(a)(1)); and Chemours and DuPont have contributed,
and Chemours is contributing, "to the past or present handling, storage, treatment, transportation,
or disposal of any solid or hazardous waste which may present an imminent and substantial
endangerment to health or the environment" in violation of RCRA (42 U.S.C. § 6972(a)(1)(13)).
This notice is provided to you pursuant to and in accordance with the requirements of Section
505(b)(1)(A) of the CWA, 33 U.S.C. § 1365(b)(1)(A), and Section 7002(b)(2)(A) of RCRA, 42
U.S.C. § 6972(b)(2)(A).
In accordance with CWA Section 505(b)(1)(A) and applicable rules governing the
provision of notice of intent to file a CWA citizen suit at 40 C.F.R. Part 135, and RCRA Section
7002(b)(2)(A) and applicable rules governing the provision of notice of intent to file a RCRA
citizen suit at 40 C.F.R. Part 254, CFPUA hereby provides the following information:
A. Facts
1) Fayetteville Works Facilily operations
Chemours was a wholly owned subsidiary of DuPont when it acquired the Fayetteville
Works facility from DuPont on February 1, 2015. Chemours later separated from DuPont in July
2015. The Fayetteville Works facility had been operated by DuPont since the early 1970s. DuPont
still operates a manufacturing area at the facility.
The Fayetteville Works facility has five discrete manufacturing areas: (i)
Fluoromonomers/Nafion (operated by Chemours); (ii) Polymer Processing Aid ("PPA") (operated
by Chemours); (iii) Butacite (operated by Kuraray and rented from Chemours); (iv) SentryGlas
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DEQ-CFW 00075296

(operated by Kuraray and rented from Chemours); and (v) Polyvinyl Fluoride ("PVF") (operated
by DuPont and rented from Chemours). The wastewater from each of the manufacturing areas
flows through Chemours' on -site wastewater treatment plant ("WWTP"), is diluted with much
larger volumes of water, and is ultimately discharged into the Cape Fear River at Outfall 002. The
Fayetteville Works facility is operating under NPDES Permit No. NC0003573 (the "NPDES
Permit"), the most recent version of which was issued to Chemours for the point source discharge
from the entire Fayetteville Works facility.
According to a Chemours representative, the Fayetteville Works facility has been
generating and discharging a substance or group of substances, now identified as GenX, as a
byproduct since 1980. Based upon information and belief, the generation of GenX at the
Fayetteville Works facility, as a product, byproduct or otherwise, has been and is accompanied by
the generation of GenX Pollutants which are defined in this notice as follows:
• chemicals collectively identified by DuPont and Chemours as "GenX";
• chemicals that are structurally or functionally or otherwise similar to GenX that result from
or are associated with the manufacture, use, processing, treatment, or disposal of GenX;
• perfluoroalkyl ether carboxylic acids (PFECAs); and
• chemicals that are structurally or functionally or otherwise similar to PFECAs that result
from or are associated with the manufacture, use, processing, treatment, or disposal of
PFECAs.
More specifically, the GenX Pollutants include, without limitation, the following GenX Pollutants
found in the Cape Fear River in the vicinity of the CFPUA intakes:
• GenX (described in more detail in section A.3 of this notice);
• Perfluoroalkyl ether carboxylic acids with one ether group (mono -ether PFECAs)
including:
o Perfluoro-2-methoxyacetic acid; C3HF5O3; CAS No. 674-13-5
o Perfluoro-3-methoxypropanoic acid; C4HF703; CAS No. 377-73-1
o Perfluoro-4-methoxybutanoic acid; C5HF9O3; CAS No. 863090-89-5
Perfluoroalkyl ether carboxylic acids with multiple ether group (multi -ether PFECAs)
including:
o Perfluoro(3,5-dioxahexanoic) acid; C4HF7O4; CAS No. 39492-88-1
o Perfluoro(3,5,7-trioxaoctanoic) acid; C5HF9O5; CAS No. 39492-89-2
o Perfluoro(3,5,7,9-tetraoxadecanoic) acid; C6HF11O6; CAS No. 39492-90-5
By 2011, in addition to its generation as a byproduct, GenX was intentionally manufactured
at the Fayetteville Works facility as a replacement for another substance or group of substances
called "C8" (CAS No. 3825-26-1). C8 is also known as perfluorooctanoic acid ("PFOA") or its
salt, ammonium perfluorooctanoate ("APFO"). The substance is a long -chain synthetic
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perfluorinated carboxylic acid' used in the manufacturing of products such as Teflon. CFPUA is
informed and believes that C8 was discontinued because of its adverse effects on the environment
and human health and that studies indicate GenX has similar adverse effects. Based on information
and belief, Chemours and DuPont have released, and Chemours continues to release, GenX and
GenX Pollutants into air, soil, surface water, and groundwater at the Fayetteville Works facility.
2) DuPont's NPDES Permit applications and production of C8
In or around December 1995, DuPont submitted to North Carolina Department of
Environment and Natural Resources ("DENR"), as part of its NPDES Permit renewal application,
a request to reroute the Nafion wastewater to bypass the facility's wastewater treatment plant.
According to DuPont, the only significant pollutant in the "low biodegradable" wastewater was
fluoride, which was not removed in the water treatment process, so the wastewater only added to
the hydraulic load at the WWTP. The 1996 NPDES Permit appears to have authorized the bypass.
Based upon information and belief, the Nafion wastewater also included GenX Pollutants.
On May 3, 2001, DuPont submitted a renewal application for its 1996 NPDES Permit in
which the company disclosed its intent to begin manufacturing C8 at the Fayetteville Works
facility. DuPont had previously been purchasing C8 from 3M, but CFPUA is informed and
believes that 3M stopped manufacturing the substance due to concerns over its persistence,
bioaccumulation and toxicity. CFPUA is informed and believes that, by the time of its 2001
NPDES renewal application:
a) DuPont had been conducting medical studies on C8 for decades. DuPont already
"understood that PFOA [i.e., C8] caused cancerous testicular, pancreatic, and liver
tumors in lab animals. One laboratory study suggested possible DNA damage from
PFOA exposure, and a study of workers linked exposure with prostate cancer."
Nathaniel Rich, The Lawyer Who Became DuPont's Worst Nightmare, The NY Times
Magazine, Jan. 6, 2016.
b) In 1991, DuPont set an internal exposure guideline of 1 ppb.
c) DuPont had been the defendant in a federal lawsuit over adverse health effects arising
from C8 contamination from its facility in Parkersburg, West Virginia, and a class
action regarding adverse health effects was filed against the company in August 2001.
However, CFPUA is informed and believes that DuPont in its 2001 NPDES Permit renewal
application failed to disclose any of the studies or health data on C8 in its possession. Instead,
DuPont represented to DEQ's Division of Water Quality3 ("DWQ") that: (i) based on "medical
surveillance of its own employees and epidemiological data from others in the industry," C8 "does
not pose a health concern to humans or animals at levels present in the workplace or environment";
(ii) DuPont had used C8 for forty years "with no observed health effects in workers"; and (iii) the
compound "is neither a known developmental toxin nor a known human carcinogen." The 2001
' PFOA is considered a long -chain PFC because it has a string of eight carbons off the carboxylic
acid compound —hence the name "C8."
2 Now Department of Environmental Quality ("DEQ").
3 Now Division of Water Resources ("DWR").
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DEQ-CFW 00075298

NPDES Permit application requested authorization to discharge the C8 wastewater directly to a
dedicated outfall, bypassing the facility's WWTP. CFPUA understands that, beginning in the fall
of 2002, DuPont started manufacturing C8 at the Fayetteville Works facility. The renewal NPDES
Permit, however, was not issued until January 2004. Because later submissions from DuPont
represented that the C8 manufacturing operation was constructed to have no process wastewater
discharges, and that the wastewater would be captured and incinerated off site, the 2004 NPDES
Permit did not include authorization for discharge of the C8 manufacturing wastewater. Upon
information and belief, the wastewater from C8 manufacturing included GenX Pollutants.
3) Phase out of C8 and transition to GenX
In 2006, EPA initiated a voluntary PFOA Stewardship Program, in which DuPont
participated, calling for the complete elimination of PFOA (i.e., C8) both from emissions to all
media and from product content by 2015. DuPont identified GenX as a viable replacement
compound. GenX (CAS Nos. 13252-13-6 and 62037-80-3) falls within a category of chemicals
known as short-chain4 PFECAs.
DuPont submitted its next NPDES Permit renewal application on May 1, 2006. As to the
manufacture of C8, DuPont represented in its application that: (i) the wastewater "is collected and
shipped off -site for disposal"; (ii) "[n]o process wastewater from this manufacturing facility is
discharged to the site's biological WWTP or to the Cape Fear River"; and (iii) the C8 produced at
the facility "is used to produce fluoropolymers and fluorinated telomers, but none of the produced
[C8] is used at the Fayetteville Works site." As to the Nafion manufacturing operations, DuPont
disclosed in its application that the plant manufactures five final products, including FLPR Vinyl
Ether monomers and HFPO monomers (hexafluoropropylene oxide, CAS No. 428-59-1).
According to DuPont, the Vinyl Ether and HFPO monomers are shipped to other DuPont locations
to produce various fluorochemical products such as Teflon, and the Nafion wastewater was now
being treated in the facility's WWTP.
The renewal NPDES Permit was issued May 25, 2007. Although all C8 process
wastewater was to be captured and disposed of off -site, the permit included a monitoring condition
for C8 due to known groundwater contamination.
In 2008, DuPont submitted to the EPA pre -manufacture notices for GenX (P-08-508 and
P-08-509) pursuant to the Toxic Substances Control Act ("TSCA"). On January 28, 2009, EPA
and DuPont entered the TSCA Consent Order governing the manufacture of GenX. The Consent
Order specified 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 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
4 GenX is a short -chain PFC in that two shorter carbon chains are connected by an ether linkage
as opposed to the unbroken eight -carbon chain in C8.
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DEQ-CFW 00075299

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.
As part of its NPDES permit renewal process, DuPont representatives, including its
environmental manager Michael Johnson, met in August 2010 with DWQ to discuss the phase -out
of C8. During that meeting, CFPUA is informed and believes that DuPont identified the C8
replacement as "GenX" and, consistent with the disclosures in its renewal application, represented
that the wastewater generated from the manufacture of GenX would be captured and disposed of
off -site.
On April 29, 2011, DuPont submitted another NPDES Permit renewal application. CFPUA
is informed and believes that DuPont had begun transitioning from C8 to GenX by that time.
Where its disclosures previously identified the manufacture of C8, DuPont instead identified the
manufacturing area as a "PPA [polymer processing aid] manufacturing area." DuPont represented
in its application that: (i) the "processing aids produced in this unit are used to produce
fluoropolymers and fluorinated telomers, but none of the produced processing aids are used at the
Fayetteville Works site"; (ii) "[a]ll process wastewater generated from this manufacturing facility
is collected and shipped off -site for disposal"; and (iii) "[n]o process wastewater from this
manufacturing facility is discharged to the site's biological WWTP or to the Cape Fear River."
DuPont's representations regarding the Nafion plant are essentially identical to its May 2006
NPDES application. The effluent from the Nafion wastewater is represented as being heavily
diluted with noncontact river water and other water prior to discharge.
The NPDES Permit renewal was issued February 6, 2012, and advised DuPont that the
Cape Fear River segment into which DuPont is discharging wastewater had been reclassified to a
water supply classification—WS-IV. As with the prior NPDES permit, PFOA (i.e., C8)
monitoring conditions were included; PFOA monitoring was required at Outfall 002—after
dilution with large volumes of non -contact river water and other water. The 2012 NPDES Permit
does not authorize the discharge of GenX or any other GenX Pollutants.
4) RCRA investigation of C8 contamination
At some point after DuPont began the manufacture of C8 at its Fayetteville Works facility,
the site became contaminated with C8 in the soil and groundwater, due (on information and belief)
to some combination of spills, leaks, releases, discharges, and air emissions. DuPont conducted a
RCRA Facility Investigation (RFI) under the Hazardous and Solid Waste Amendments Corrective
Action Program, which led to the issuance of a Phase III RFI Report in February 2014, revised
August 2014. According to the RFI Report, at least seven releases occurred between March 2011
and February 2013, including a release from the PPA facility in June 2011, a release from the
Nafion facility in March 2012, and a release from the Waste Fluorocarbon Storage Tank in March
2012. Based upon information and belief, at the time of some or all of those releases, DuPont was
manufacturing or otherwise producing GenX Pollutants, which are likely to have been
contaminants in one or more of the releases.
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DEQ-CFW 00075300

Earlier RFI reports —in particular the Phase I RFI dated April 14, 2003 and revised August
1, 2003, the Phase II RFI dated June 2006 and its August 2009 Addendum —include additional
findings regarding historical contamination and releases at the Fayetteville Works facility. Among
other things, the RFIs: (i) identify C8 contamination in soil and groundwater throughout the
Fayetteville Works facility, and posit that some of the contamination is due to deposition of C8 air
emissions; (ii) indicate that until 1990, unlined lagoons constructed in or around 1979 were used
as biosludge settlement lagoons for wastewater from throughout the facility, before discharging to
the Cape Fear River; and (iii) acknowledge historical releases at the Nafion manufacturing area,
including from solid waste management units (SWMUs) handling Nafion wastewater. CFPUA is
informed and believes that DuPont was generating GenX Pollutants at the Fayetteville Works
facility during the time of the activities and releases at the facility identified in the RFIs, such that
GenX Pollutants were constituents of the contamination and releases described in the RFIs.
5) Change of ownership and 2016 NPDES Permit application
On June 19, 2015, DuPont submitted an ownership change request, notifying DWR of the
pending transfer of the Fayetteville Works facility to Chemours and requesting a permit
amendment. On June 24, 2015, Michael Johnson, Chemours' (and previously DuPont's)
environmental manager, met with DWQ officials to discuss a "new" perfluorinated compound
identified in the Cape Fear River, GenX, which had been identified by N.C. State University
researchers conducting sampling on the Cape Fear River as part of a study commissioned by EPA.
The researchers have since published their results, Legacy and Emerging Perf uoroalkyl
Substances are Important Drinking Water Contaminants in the Cape Fear River Watershed of
North Carolina, in Environmental Science & Technology Letters (November 10, 2016) ("Knappe
Report"). CFPUA is informed and believes that DuPont represented to DWQ that GenX was C8's
replacement, and that GenX was no longer being discharged to the Cape Fear. The 2012 NPDES
Permit was amended to reflect the change of ownership effective July 1, 2015.
Chemours submitted its most recent NPDES Permit renewal application on April 27, 2016.
The application contained essentially identical representations regarding the PPA and Nafion
manufacturing areas as the April 2011 renewal application. Similar to the prior application, the
effluent from the Nafion wastewater is represented as being heavily diluted with noncontact river
water and other water prior to discharge.
The April 2016 NPDES renewal application requested that the C8 monitoring condition be
removed from the NPDES Permit. Chemours' justification for the request was that C8 monitoring
at Outfall 002 showed an average C8 concentration of .027 ug/L—below the recommended Interim
Maximum Allowable Concentration ("IMAC") of 1 ug/L. Chemours' further asserted that non -
contact water from the Cape Fear River —which Chemours represented constituted 99% of the
effluent flow at Outfall 002—had an average C8 concentration of .012 ug/L, thus contributing to
the total C8 in the effluent. Based on Chemours' representations: (i) the pre -dilution effluent —
only 1 % of the final discharge —would be the cause of the increase in C8 concentration from .012
ug/L to .027 ug/L at Outfall 002, and (ii) the actual concentration of C8 in Chemours' effluent
prior to dilution by water from the Cape Fear River would be 1.5 ug/L, which exceeds by 50
percent the IMAC upon which Chemours chose to base its request. In addition, groundwater
monitoring results in the RFI Report suggest that Chemours' on -site C8 contamination may have
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DEQ-CFW 00075301

impacted Willis Creek, which flows into Cape Fear River just upstream of Chemours' intake,
potentially contributing to the reported 0.12 ug/L concentration of C8 in the Cape Fear River at
the Chemours intake.
6) Discovery of GenX in the Cape Fear River
The Knappe Report shows that GenX, along with six other GenX Pollutants, are present in
the Cape Fear River, downstream of the Fayetteville Works facility. The report found that GenX
was in the raw water at CFPUA's intake at mean concentrations of 631 ng/L, and six other GenX
Pollutants (all PFECAs) were found at even higher levels. Based upon information and belief, the
Fayetteville Works facility is the source of each of the GenX Pollutants at CFPUA's intake.
The Knappe Report indicates that CFPUA's water treatment plant is largely ineffective at
removing PFECAs from the water during the treatment process. With regard to treatment options,
although reverse osmosis might be effective, it is not practicable to implement at the scale required
given the volume of water treated by CFPUA. Finally, carbon filtration is not known to be
effective at removing PFECAs.
Once publicly confronted about GenX contamination in the Cape Fear River, Chemours:
(a) asserted that GenX is an "unregulated" chemical that was being discharged as a byproduct from
its Nafion-related manufacturing processes, in particular during the manufacture of vinyl ethers;
(b) disclosed that GenX was in its air emissions as part of those same processes; and (c) explained
that GenX had been discharged from its vinyl ether process, unabated, from 1980 until November
2013, at which time abatement technology was implemented to reduce the GenX discharge by 80
percent. Following public outcry, Chemours committed to taking steps to prevent discharge of
any wastewaters containing GenX by June 21, 2017. However, as recently as July 12, 2017, GenX
was identified in Chemours' effluent being discharged to the Cape Fear River.
After reviewing the available data regarding the PBT characteristics of GenX and
consultation with EPA, North Carolina Department of Health and Human Services ("DHHS")
issued a Risk Assessment on July 14, 2017 setting a health goal of 140 ng/L. Subsequent testing
has shown GenX present in the raw CFPUA's intake, and in the Authority's finished water, at
concentrations in excess of the health goal.
B. Chemours is violating CWA and RCRA, and Chemours and DuPont have
violated RCRA
1) The specific standard, limitation or order alleged to be violated under CWA
Section 505(a)(1) of the CWA permits citizens to commence a civil action against "any
person ... who is alleged to be in violation of ... an effluent standard or limitation under this
Act," 33 U.S.C. § 1365(a)(1), including the prohibition against discharging pollutants without an
NPDES permit. 33 U.S.C. § 1311(a).
"Pollutants" under the CWA include "chemical wastes ... and industrial ... waste
discharged into water." 33 U.S.C. § 1362(6). GenX Pollutants, including GenX, are "pollutants"
DEQ-CFW 00075302

as defined under the CWA. Based on information and belief, GenX Pollutants have been and
continue to be among CWA pollutants that are discharged into the Cape Fear River from the
Fayetteville Works. Based on information and belief, GenX Pollutants are discharged by DuPont
from its manufacturing area to the Cape Fear River, using the Chemours WWTP as a conduit.
Based on information and belief, the WWTP does not effectively remove GenX Pollutants from
wastewater that is routed through it.
The NPDES Permit does not authorize, and has never authorized, discharge of GenX
Pollutants from the Fayetteville Works facility. In order to operate in compliance with an NPDES
permit, the permit holder must (1) comply with the express terms of the permit; and (2) not make
a discharge of pollutants that was not within the reasonable contemplation of the permitting
authority at the time the permit was granted. Piney Run Pres. Assn v. County Commis of Carroll
County, 268 F.3d 255 (4th Cir. 2001). Because Chemours and DuPont never identified the GenX
Pollutants as constituents in their effluent, the substances could not have been within the
contemplation of DEQ, and are therefore not authorized to be discharged by the NPDES Permit.
In addition, DuPont's and Chemours' unauthorized discharges of GenX Pollutants are
causing violations of North Carolina water quality standards adopted and enforced pursuant to the
CWA, including water quality standards for "oils, deleterious substances, colored, or other
wastes," 15A NCAC 2B .0211(12), and for "toxic substances." 15A NCAC 2B .0208, 15A NCAC
2B .0211 (incorporating 15A NCAC 2B .0208 by reference), and 15A NCAC 2B .0216(3)(a) and
(h).
2) The specific permit, standard, regulation, condition, requirement, or order
which has allegedly been violated under RCRA
Section 7002(a)(1)(B) of RCRA permits citizens to commence a civil action against:
any person ... including any past or present generator, past or present transporter,
or past or present owner or operator of a treatment, storage, or disposal facility, who
has contributed or who is contributing to the past or present handling, storage,
treatment, transportation, or disposal of any solid or hazardous waste which may
present an imminent and substantial endangerment to health or the environment.
42 U.S.C. § 6972(a)(1)(B).
Chemours and DuPont are both in violation of this provision, based on their discharges,
disposals and other releases of GenX Pollutants described above and discussed in more detail
below.
3) Activities alleged to be a violation of CWA and RCRA
The CWA violations by DuPont and Chemours are the historic and ongoing unpermitted
discharges of GenX Pollutants at and from the Fayetteville Works facility (including without
limitation discharges from the WWTP) and the resulting violations of water quality standards as
previously described.
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DEQ-CFW 00075303

The RCRA violations by Chemours and DuPont are the historic and ongoing contribution
to the disposals and other releases of GenX Pollutants to soil, groundwater, surface water, and air
at and from the Fayetteville Works facility, which have contaminated and are contaminating the
Cape Fear River. As determined by DHHS in its Risk Assessment, and consistent with the health
concerns identified by EPA in its TSCA Consent Order, and as indicated in study reports such as
Evaluation of substances used in the GenX technology by Chemours, Dordecht, National Institute
for Public Health and the Environment, The Netherlands (2016) at page 3 of 92 (GenX substances
"are perfluorinated hydrocarbons and poorly degradable in the environment ... [and] are causing
similar harmful effects as PFOA (such as carcinogenic [effects] and effects on the liver.")), the
GenX released in the Cape Fear River may present an imminent and substantial endangerment to
health or the environment. Other GenX Pollutants in the Cape Fear River are similar substances
to GenX and should be expected to have similar effects and therefore may present an imminent
and substantial endangerment to health or the environment.
The dates of the violations are as identified in Part A above.
On June 27, 2017, CFPUA sent written Requests for Information to Chemours, requesting
information regarding, among other things, Chemours' and DuPont's historical use, discharges,
releases, and emissions of GenX Pollutants, as well as information regarding GenX Pollutants'
effect on human or environmental health. To date, Chemours has refused to provide the requested
information. CFPUA expressly reserves the right to supplement its prospective citizen suit with
any information currently withheld by Chemours that is later disclosed in discovery.
4) Persons responsible for the alleged violation
The persons responsible for the alleged violation currently known to CFPUA include Ellis
H. McGaughy, Fayetteville Works plant manager, and Michael E. Johnson, Fayetteville Works
plant environmental manager.
5) Name, address, and telephone number of person givingnotice
otice
The name and contact information of the person giving notice is as follows:
Cape Fear Public Utility Authority
235 Government Center Drive
Wilmington, NC 28403
Attn: Jim Flechtner
Telephone: [phone]
The counsel for CFPUA is Brooks, Pierce, McLendon, Humphrey, and Leonard, L.L.P., of
Greensboro, North Carolina. The name and contact information of counsel for the person giving
notice is as follows:
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George W. House
V. Randall Tinsley
Joseph A. Ponzi
Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P.
2000 Renaissance Plaza
230 North Elm Street
Greensboro, NC 27401
Telephone: [phone]
Facsimile: [phone]
Messrs. House, Tinsley, and Ponzi are providing this notice as counsel for CFPUA.
6) Notice of intent to sue
CFPUA intends to file suit not earlier than 60 days after this notice is given as authorized
by the Clean Water Act. CFPUA intends to file suit not earlier than 90 days after this notice is
given as authorized by the Resource Conservation Recovery Act.
Pursuant to the CWA, RCRA, and EPA's rules at 40 C.F.R. Part 135 and Part 254, copies
of this notice letter are being served on the EPA Administrator, the EPA Regional Administrator,
the United States Attorney General, the N.C. DEQ Secretary, the N.C. DWR Director, and the
N.C. DWM Director.
cc: Bill Lane, NC DEQ
Sincerely,
,: ..
, L
George W. ouse
11
V. Randall Tinsley
Joseph A. Ponzi
DEQ-CFW 00075305