2020.03.12_CCO.p16_CohenMilsteinCommentsCAP

Theodore Leopold
[phone]
[e-mail]
March 12, 2020
VIA ELECTRONIC MAIL

The Honorable Sheila Holman
Assistant Secretary for the Environment
1601 Mail Service Center
Raleigh, NC 27699-1601
[e-mail]

Re: Comments on the Corrective Action Plan dated December 31, 2019. pursuant to
the Consent Order Paragraph 16, State of North Carolina, ex rel., Michael S.
Regan, Secretary, North Carolina Dept. of Envtl. Quality v. The Chemours
Company FC, LLC, No. 17-CVS-580
Dear Assistant Secretary Holman:
We are the Court-appointed interim co-lead counsel for the putative Class in Carey v. E.I.
du Pont de Nemours & Co., No. 7:17-CV-00189-D, currently pending in the U.S. District Court
for the Eastern District of North Carolina. The Carey action plaintiffs (“Plaintiffs”) seek to hold
Chemours and its predecessor, DuPont, liable for polluting North Carolina residents’ bodies and
property with GenX and other Per- and Polyfluoroalkyl Substance (“PFAS”) compounds
originating from Chemours’ Fayetteville Works plant, thereby endangering these residents’ health.
Plaintiffs seek to represent several putative classes of individuals—including property owners who
receive their water from wells as well as property owners who receive their water from public
utilities—whose health and property have been injured by Chemours’ and DuPont’s wrongful
contamination of the Cape Fear River area with PFAS.

On behalf of those putative Classes, Plaintiffs respectfully submit the attached comments
in response to the December 31, 2019, Corrective Action Plan (“CAP”), prepared by Geosyntec
Consultants of NC, P.C. (“Geosyntec”) for The Chemours Company FC, LLC (“Chemours”). The
CAP was prepared pursuant to the February 2019 Consent Order (“CO” or “Consent Order”) in
the above-referenced matter brought by the State of North Carolina against Chemours for its
unlawful contamination (the “DEQ Action”).

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The CAP is regrettably deficient in numerous respects. As explained in the attached
Comments, the CAP’s proposed remedies do not and will not address the full extent of the PFAS
contamination originating from Chemours’ Fayetteville Works plant, and fail to adequately protect
the human health of residential users of municipal water supplies drawn from the Cape Fear River,
including in New Hanover, Brunswick, Pender, and Columbus Counties, who are putative class
members in the Carey action. In brief:

• ISSUE: The CAP offers no protection to downstream residential consumers
(“DRCs”) who obtain water from public utilities and whose water remains
contaminated with PFAS above the Consent Order’s Action Level. During the summer
and fall of 2019, experts working for the putative class counsel collected and analyzed
drinking-water samples from 27 residences in Brunswick, Columbus, New Hanover, and
Pender Counties serviced by municipal water. All of the samples collected from these
residences exceed the Consent Order’s Action Level—i.e., the threshold for triggering
Chemours’ obligation to install reverse-osmosis (“RO”) filters pursuant to Consent Order
¶ 20. Despite the fact that municipal water customers’ water has PFAS concentrations
exceeding the Consent Order’s 10/70 Action Levels, the remedies proposed in the CAP
will not prevent PFAS from contaminating DRC’s properties and water supplies for years
to come, leaving these citizens’ homes and bodies exposed to harmful toxins for the
indefinite future.
o RECOMMENDATION: Pursuant to Consent Order ¶ 16 which requires
Chemours to “comply with the requirements of the 2L Rules and guidance provided
by [the North Carolina Department of Environmental Quality (“DEQ”)]”, Consent
Order ¶ 16 (see 15A NCAC 02L .0103 (“2L Rules”)), and in order to treat equally
all North Carolina residents who have been harmed by Chemours’ illegal behavior,
DEQ should compel Chemours to pay for (a) the acquisition, installation, operation,
and maintenance of three under-sink RO systems for each residence in the
municipal water supply districts where tap water has been found to exceed the 10/70
Action Levels, and (b) bottled water pending the installation of such systems.

• ISSUE: Chemours admits that it does not know when or whether its remedies will
effectively abate PFAS contamination above the 10/70 Action Levels. Chemours’
proposed remedies in the CAP are inadequate to prevent PFAS from contaminating DRCs’
residences above the 10/70 Action Levels for years to come. Specifically, for PFAS that
continue to migrate into the Cape Fear River from the contaminated Fayetteville Works
facility, Chemours has not even completed investigating—let alone implemented—any
measures necessary to abate or prevent ongoing PFAS contamination. All of the ten
remedial actions proposed in the CAP are expected to take between 5 and 10 years, and
likely longer, to complete. Moreover, Chemours admits that it does not know whether its
long-term remedies will be effective, stating that “the proposed long-term groundwater
remedy is still highly conceptual,” that “it is not presently possible to conclude with

March 12, 2020
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confidence whether this alternative is economically feasible,” and that “[t]he state of
knowledge regarding the fate and transport properties, toxicological characteristics, and
potential remedial approaches for PFAS and Table 3+ PFAS are continuing to evolve
and advance.” See CAP at xvii & p. 1.
o RECOMMENDATION: Pursuant to Consent Order ¶ 16, the requirements of the
2L Rules, and in order to treat equally all North Carolina residents who have been
harmed by Chemours’ illegal behavior, DEQ should compel Chemours to pay for
(a) the acquisition, installation, operation, and maintenance of three under-sink RO
systems for each residence in the municipal water supply districts where tap water
has been found to exceed the 10/70 Action Levels, and (b) bottled water pending
the installation of such systems.

• ISSUE: Chemours suggests that remediation may be impossible. In the CAP,
Chemours openly states that, in the future, “NCDEQ and Chemours may need to consider
alternate cleanup standards,” and that the appropriate standard is one that alleviates
Chemours’ obligations in light of the costliness of remediation. See CAP at 58 (stating that
the goal of corrective action is “restoration to the level of the standards, or as closely
thereto as is economically and technologically feasible”).
o RECOMMENDATION: It is Chemours’ legal obligation under the Consent
Order to “submit . . . a plan demonstrating maximum reductions in PFAS loading”
within two years, or a longer plan “if significantly greater reductions can be
achieved.” See Consent Order ¶ 12. Although the Consent Order acknowledges that
the economic and technological feasibility of Chemours’ remediation are important
considerations, DEQ cannot allow Chemours to use that as an escape hatch to avoid
its obligations to achieve and demonstrate maximum PFAS reductions to ensure
that all North Carolina residents can drink and use water free of Chemours’ harmful
PFAS contamination.

• ISSUE: Chemours fails to propose any plan to remediate groundwater and PFAS-
contaminated land outside of Fayetteville Works. PFAS will continue to migrate to
groundwater and into the Cape Fear River even if Chemours manages to remediate
contamination from its Fayetteville Works facility. This is because (as Chemours admits)
its PFAS air emissions have contaminated over 70 square miles of the Cape Fear watershed,
and this contamination has vertically migrated from the soil into groundwater that flows
directly into the Cape Fear River. Chemours presents no plan to address this extensive
contamination, suggesting instead that it cannot be addressed at all. See CAP p. 58 (“the
costs for on and off-site remediation . . . would exceed billions to potentially tens of
billions of dollars and the timeframe would be on the order of multiple decades.”). Instead
of addressing this contamination, Chemours simply states that it’s too expensive, and
proposes no reduction in PFAS loadings to the Cape Fear River from aerial deposition

March 12, 2020
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outside Fayetteville Works. Consequently PFAS will continue to impact surrounding and
downstream water users for decades.
o RECOMMENDATION: DEQ should require Chemours to present a plan for
reducing PFAS loadings to the groundwater and Cape Fear River over the Cape
Fear River watershed, and until such loadings are decreased, compel Chemours to
pay for (a) the acquisition, installation, operation, and maintenance of three under-
sink RO systems for each residence in the municipal water supply districts where
tap water has been found to exceed the 10/70 Action Levels, and (b) bottled water
pending the installation of such systems.

ISSUE: Chemours’ risk assessment is flawed, biased, and inadequate to comply with
the requirements of the Consent Order. Chemours has yet to complete satisfactory risk
assessments as required by Consent Order ¶ 14. In particular, Chemours has neither quantified the
risks of PFAS exposure to DRCs and all other individuals affected by Chemours’ contamination
nor complied with Consent Order ¶ 14’s requirement to establish that Attachments B and C PFAS
do not pose an unacceptable risk to human health. Chemours has also failed to calculate toxicity
values (and risks) for 19 out of 20 PFAS, focusing all of its efforts on GenX, the one PFAS for
which DuPont and Chemours have produced at least some toxicity evaluations. In addition,
Chemours’ analysis fails to (a) follow standard U.S. Environmental Protection Agency (“EPA”)
guidance for deriving toxicity values; (b) adequately address the past decade of scientific literature
on GenX’s toxicity; (c) properly weigh and account for the toxicity and human health risks of
GenX, including immunotoxicity; and (d) account for all necessary risks and toxicity information
associated with drinking contaminated water. Chemours also manipulates its conclusions by
making improper and scientifically unsound assumptions that mask the true risks associated with
drinking PFAS-contaminated water and fail to account for exposure risks to sensitive
subpopulations.
• RECOMMENDATION: DEQ should require Chemours to rectify all of these
deficiencies, recalculate the risks posed to DRCs, and design remedial actions, including
the provision of RO and bottled water to achieve these objectives.

In sum, in addition to failing to comply with the Consent Order requirements, the CAP
demonstrates conclusively that Chemours has no plan to remediate the PFAS contamination it has
caused in the immediate or even long term. Property owners and individuals who rely on the Cape
Fear River for their water cannot wait the many years—if not decades—that will be required before
PFAS contamination drops below acceptable levels. It is therefore critical that Chemours address
the consequences of its actions now.

For the reasons set forth below, Plaintiffs respectfully request that DEQ compel Chemours
to pay for the acquisition, installation, operation and maintenance of three under-sink RO systems
for each residence in the municipal water supply districts where tap water was found to exceed the
10/70 Action Levels (described below), and bottled water pending the installation of such systems.

March 12, 2020
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Plaintiffs believe that this relief, which they are also seeking as part of their pending case against
Chemours and DuPont, is needed to remediate damage resulting from the trespasses upon their
persons and properties resulting from the unauthorized release of PFAS into the drinking water
supply, and to address ongoing threats to their health resulting from exposure to PFAS at levels
found in the water supply in the area.

Respectfully submitted,

/s/ Theodore J. Leopold /s/ Stephen E. Morrissey
Theodore J. Leopold Stephen E. Morrissey

Cc:

Mr. Michael Abraczinskas
Director, Division of Air Quality
1641 Mail Service Center
Raleigh, NC 27699-1641
[e-mail]

Mr. Michael Scott
Director, Division of Waste Management
1646 Mail Service Center
Raleigh, NC 27699-1646
[e-mail]

Ms. Linda Culpepper
Interim Director, Division of Water Resources
1611 Mail Service Center
Raleigh, NC 27699-1611
[e-mail]

William F. Lane, Esq.
General Counsel
1601 Mail Service Center
Raleigh, NC 27699-1601
[e-mail]

Francisco Benzoni, Esq.
Special Deputy Attorney General
P.O. Box 629

March 12, 2020
Page 6
Raleigh, NC 27602
[e-mail]

Mr. Kemp Burdette
Cape Fear River Watch
617 Surry Street
Wilmington, NC 28401
[e-mail]

Mr. Geoff Gisler
Southern Environmental Law Center
601 West Rosemary Street, Suite 220
Chapel Hill, NC 27516-2356
[e-mail]