NC0089915_SELC Draft Permit Comments_20200817

SOUTHERN ENVIRONMENTAL LAW CENTER
Telephone [phone]
Via Electronic Mail
Sergei Chernikov
Division of Water Resources
601 WEST ROSEMARY STREET, SUITE 220
CHAPEL HILL, NC 27516-2356
August 17, 2020
N.C. Department of Environmental Quality
[e-mail]
Re: Draft Permit for Chemours' Outfall 003 Discharge
(Permit NC0089915).
Dear Mr. Chernikov:
Facsimile 919-929-9421
On behalf of Cape Fear River Watch, the Southern Environmental Law Center
submits these comments on the proposed Draft National Pollutant Discharge Elimination
System Permit for The Chemours Company's proposed discharge into the Cape Fear River,
Permit NC0089915. It is imperative that this permit be issued promptly, yet with
appropriate limits on per- and polyfluoroalkyl substances (PFAS). As described below, we
recommend lowering the limits to levels that Chemours has shown its technology can
achieve. DEQ must do so quickly to provide relief to downstream communities that
continue to face ongoing pollution from Old Outfall 002.
The draft permit simultaneously takes a significant step forward in controlling
Chemours' ongoing contamination of the Cape Fear River and does not go far enough.
Under the 2019 Consent Order, Chemours is required to capture and treat water leaving its
site through Old Outfall 002 to remove at least 99 percent of the PFAS compared to existing
levels. This requirement under the Consent Order is intended to be a backstop and cannot
replace DEQ's permitting analysis required under the Clean Water Act. Yet Chemours used
the minimum reduction requirement as the sole basis for its proposed limits and DEQ
accepted them without further analysis.
Over the last year, Chemours has tested the to -be -applied technology through a pilot
study (GAC Study)' and achieved significantly lower levels of PFAS than the limits in the
proposed draft permit. DEQ appears to ignore the GAC Study's demonstration that
Chemours can attain much lower PFAS concentrations. As discussed in these comments,
DEQ must base permit limits on what the technology can achieve, not on the backstop
included in the Consent Order. Because it did not, the current draft permit allows more
PFAS pollution to be discharged than is permissible under the law.
' Parsons, Engineering Report: Old Outfall 002 GAC Pilot Study Results, Chemours Fayetteville
Plant, Fayetteville, NC (September 2019) (GAC Study).
Charlottesville • Chapel Hill • Atlanta • Asheville • Birmingham • Charleston • Nashville • Richmond • Washington, DC
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1. The Treatment System Will Address One of the Most Significant Sources of
Ongoing Contamination to the Cape Fear River.
Although the draft permit must be strengthened, capturing and treating the
contaminated water from Old Outfall 002 and discharging it through Outfall 003 will be
among the most significant steps taken to date to control contamination leaving Chemours'
site. Currently, Old Outfall 002 accounts for between 17 and 28 percent of ongoing
contamination from the Chemours site to the Cape Fear River.2 The wastewater treatment
plant that will be authorized to discharge with this permit will dramatically reduce that
pollution and should result in nearly immediate reductions in PFAS in the drinking water
of downstream communities. That said, the limits should be lower, as discussed below. If
appropriately set, the permit would essentially eliminate PFAS contamination from Outfall
003 to the Cape Fear River.
2. DEQ's Analysis for Technology -Based Effluent Limits Is Inadequate.
DEQ claims that the limits established in the draft permit are technology -based
effluent limits. Yet the limits do not reflect what the treatment technology can achieve and,
as a result, the established limits allow too much pollution. The central error in DEQ's
analysis is the agency's adoption of Chemours' proposed limits, which rely on the Consent
Order, to set the permit's limits. Testing demonstrates that much greater reductions are
feasible. Greater reductions are, therefore, required.
a. Technology -based effluent limits are the Clean Water Act's primary tool to
avoid pollution.
The Clean Water Act set an audacious goal —elimination of all discharges by 1985.
The primary tool for eliminating those discharges is the technology -based effluent limit.
The controlling federal and state laws require DEQ to limit discharges to pollution that
cannot be avoided using applicable technology.
Technology -based effluent limits are "the minimum level of control that must be
imposed in a permit."3 These limits are a potent tool to address industrial chemicals
because they "are developed independently of the potential impact of a discharge on the
receiving water, which is addressed through water quality standards and water quality -
based effluent limitations."4 As the U.S. Environmental Protection Agency has recognized,
"technology -based limits aim to prevent pollution by requiring polluters to install and
implement various forms of technology designed to reduce the pollution discharged into the
nation's waters."5
Although technology -based effluent limits often take the form of effluent limitation
guidelines, the absence of those guidelines is not a barrier to protective limits in discharge
permits. When EPA has not issued a national effluent limitation guideline for a particular
2 Geosyntec, Cape Fear River Table 3+ Mass Loading Assessment - First Quarter 2020 at 38 (July
2020) (2020 Mass Loading Analysis).
3 40 C.F.R. § 125.3(a) (emphasis added).
4 U.S. EPA, NPDES Permit Writers' Manual, 5-1 (2010).
5 U.S. EPA, Technical Analysis for Determination of Technology -Based Permit Limits for the
Guaynabo Drinking Water Treatment Facility NPDES Number PR0022438, 2-1 (Mar. 2009)
("Guaynabo TBEL Analysis").
2

industry or pollutant,6 permitting agencies must implement technology -based effluent
limits on a case -by -case basis using their "best professional judgment."7
DEQ failed to base the draft permit on its "best professional judgment" because the
agency adopted Chemours' proposed limits, which relied exclusively on the Consent Order's
99 percent reduction requirement despite new information that the technology to be used is
more effective. Since the Consent Order was signed, DEQ has received extensive analysis of
the reduction levels achievable using Chemours' proposed technology. Those data support —
and therefore the law requires DEQ to adopt —much more restrictive limits.
b. Technology -based effluent limits must be based on the reductions achievable
by the technology.
DEQ relies on Chemours' use of the Consent Order's 99 percent reduction
requirement to justify high limits for indicator PFAS compounds, particularly for PFMOAA.
The limit in the draft permit for PFMOAA is 850 ppt; for GenX: 60 ppt; and for PMPA: 54
ppt.8 DEQ's reliance on the Consent Order as a ceiling is inappropriate. Chemours' report
on the reduction levels that are achievable using its treatment system demonstrates that
more restrictive limits are achievable.
As Chemours reported in its GAC study, the technology can reduce almost all PFAS
to such low levels that they are not detectable.9
Date
PFMOAA
PMPA
HFPO-DA
(ppb)(ppb)
b
MRL
0.0106
0.0048
0.0117
6/15/2019
ND
ND
ND
6/17/2019
ND
ND
ND
6/21/2019
ND
ND
ND
6/24/2019
ND
ND
ND
6/26/2019
ND
ND
ND
6 33 U.S.C. § 1314(b).
7 40 C.F.R. § 125.3; see also 33 U.S.C. § 1342(a)(1)(B); NRDC v. EPA, 859 F.2d 156,183 (D.C. Cir.
1988) ("Section 1342(a)(1) requires EPA, in approving permits in the absence of formally
promulgated effluent limitations guidelines, to exercise its best professional judgment (BPJ) as to
proper effluent limits... States issuing permits pursuant to § 1342(b) stand in the shoes of the
agency, and thus must similarly pay heed to § 1311(b)'s technology -based standards when exercising
their BPJ. Thus, notwithstanding Industry's contrary assertions, States are required to compel
adherence to the Act's technology -based standards regardless of whether EPA has specified their
content pursuant to § 1314(b).") (emphasis added); Texas Oil & Gas Assn v. EPA, 161 F.3d 923 (5th
Cir. 1998) ("In situations where the EPA has not yet promulgated any [effluent limitations
guidelines] for the point source category or subcategory, NPDES permits must incorporate `such
conditions as the Administrator determines are necessary to carry out the provisions of the Act.' In
practice, this means that the EPA must determine on a case -by -case basis what effluent limitations
represent the BAT level, using its `best professional judgment.' Individual judgments thus take the
place of uniform national guidelines, but the technology -based standard remains the same.") (citing
33 U.S.C. 1342(a)(1); 40 C.F.R. § 125.3(c)-(d)).
8 Draft Permit at 3.
9 GAC Study, Appendix C. Information in table is pulled from Table 6 of the report.
3

6/28/2019
ND
ND
ND
7/1/2019
ND
ND
ND
7/3/2019
ND
ND
ND
7/5/2019
ND
ND
ND
7/8/2019
ND
ND
ND
7/12/2019
ND
ND
ND
7/15/2019
ND
ND
ND
7/19/2019
ND
ND
ND
7/22/2019
ND
ND
ND
7/25/2019
ND
ND
ND
7/29/2019
ND
ND
ND
8/1/2019
ND
0.0113
0.0251
Based on this data, there is no basis for setting permit limits significantly higher than the
detection level for PFMOAA, GenX, or PMPA. The technology achieved non -detect for
PFMOAA (which is equivalent to less than 10.6 parts per trillion, or ppt) for every sample
taken over a six week period. Sampling reported in the addendum to the GAC Study
similarly did not detect PFMOAA.10 GenX and PMPA were also recorded as non -detect
(equivalent to less than11.7 ppt for GenX; less than 4.8 ppt for PMPA) for the first 16 of 17
samples in the initial study. GenX was also reported as non -detect in the addendum." The
discharge levels achieved in the GAC Study, therefore, are significantly lower than the
limits proposed in the draft permit.
c. The draft permit limits allow for inadequate pollution control.
Because the draft permit limits are too lenient, the draft permit would allow
Chemours to operate its treatment system less efficiently in order to reduce cost. For
example, the draft fact sheet proposes to allow Chemours to replace the carbon in the first
vessel when the concentrations of influent to that vessel match its effluent.12 According to
DEQ, this is to be done to allow Chemours "full utilization of the carbon bed."13 In other
words, Chemours would change out its filters on a schedule that allows the company to get
the most use out of its filters, rather than to minimize the amount of pollution released.
That is the wrong goal. The purpose of this permitting program is to prevent as
much pollution as possible from reaching our rivers and drinking water. DEQ must analyze
what carbon replacement schedule will maximize pollution reduction —not what allows
Chemours to maximize carbon utilization (and cost savings). We recommend that
Chemours be required to replace the carbon in the first vessel when any of the indicator
compounds are detected in the second vessel. This would prioritize the health and safety of
downstream communities over the company's bottom line.
10 See Parsons, Engineering Report: Old Outfall 002 GAC Pilot Study Results Addendum, Chemours
Fayetteville Plant, Fayetteville, NC (January 2020) (GAC Study Addendum), Table 5 (reporting
samples after column 3).
11 Id.
12 Draft fact sheet at 4.
13 Id.
11

3. The Draft Permit Limits Are Too High, Particularly Considering the
Historic Exposure of Downstream Communities.
Because of the improper focus on only meeting the Consent Order's 99 percent
reduction requirement, DEQ has not proposed to require Chemours to control its PFAS
discharges to the extent feasible. Lower limits are essential for the health of downstream
communities, particularly for PFMOAA.
The importance of limiting PFAS discharges to the maximum extent achievable by
the technology cannot be overstated. Downstream communities have, prior to 2017, been
exposed to decades of extraordinarily high PFAS levels —as demonstrated by recent
retesting of 2014 and 2015 samples downstream of the Chemours facility. One sample
below Chemours' outfall had PFAS concentrations of approximately 990,000 ppt.14 Another
sample near the drinking water intake for people in Wilmington and Brunswick County
had PFAS concentrations of 130,000 ppt.15 Detlef Knappe, the N.C. State University
scientist conducting the sampling, stated that these high concentrations are the "current
best estimate of what people in the Wilmington area were drinking for [... ] 37 years."16
Contamination from other parts of the Chemours' site also continues to reach the Cape
Fear River, and upstream sources continue to contribute to the overall PFAS burden that
downstream users are forced to carry.17
Under the Clean Water Act, DEQ is required to ensure that "the concentration of
toxic substances [... ] in surface waters" do "not render waters injurious to [... ] public
health..."18 The final permit should recognize that downstream communities are already
overburdened and set limits at or near the non -detect levels achieved during pilot testing.19
4. The Permit Must Include a Condition to Control Other PFAS if Monitoring
Reveals That Reductions in the PFMOAA, GenX, and PMPA Do Not
Represent Reductions in the Full Suite of PFAS.
Even protective limits will not be successful if PFMOAA, GenX, and PMPA are not
appropriate indicators for the full range of PFAS discharged by the facility. Based on
existing knowledge and pilot testing, those chemicals appear to be valid indicators of PFAS,
and limits based on those compounds can be expected to control all PFAS. In case new
information reveals that these compounds are not appropriate indicators for the full suite of
PFAS, however, we recommend including a condition in the permit that reserves DEQ's
14 Adam Wagner, NC State -led study shows Cape Fear River had `incredibly high' levels of chemicals,
The News & Observer, Oct. 10, 2019, available at
https://www.newsobserver.com/article235963052.html (last visited Feb. 25, 2020).
15 Id.
16 Id.
17 See 2020 Mass Loading Analysis at 38-39 (describing upstream PFAS sources and high 1,4-
dioxane levels).
18 15A N.C. Admin. Code 02B .0208.
19 The fact sheet suggests that DEQ will lower permit limits if the technology performs at a higher
level than required by the permit. Fact Sheet at 10. At a minimum, that ratcheting down of limits
must be included as a condition of the permit. But that is not enough. The system will be operated to
achieve permit limits; therefore only stringent permit limits will ensure that the system is operated
at its optimal pollution reduction efficiency.
5

express authority to impose additional limits on other PFAS compounds if any are found to
behave differently than the three selected indicator compounds.
5. The Permit Cannot Allow for Less Than 99 Percent Removal of PFAS.
DEQ must remove a provision in the permit that allows Chemours to "request
revision of the 99 percent removal efficiency requirement" if "99% removal is no longer
technically feasible."20 Such a revision would violate the 2019 Consent Order, which
requires that Chemours' treatment system "be at least 99% effective in controlling indicator
parameters ... "21 It would also violate the requirement that DEQ impose technology -based
effluent limitations, as described above.22
6. DEQ Must Do More.
This permit is essential and will dramatically clean up water downstream of
Chemours' site. Yet the draft permit does not do enough. DEQ must revise the final permit
to further reduce PFAS contributions from Outfall 003 to the Cape Fear River.
Thank you for considering these comments. You can reach us at [e-mail],
[e-mail], or [e-mail] if you have any questions regarding their
content.
Sincerely,
Geoffrey R. Gisler
Senior Attorney
Jean Zhuang
Staff Attorney
Kelly F. Moser
Senior Attorney
20 Draft Permit at 4.
21 Consent Order, N.C. Dept. of Environmental Quality v. Chemours, 17 CVS 580, 17 (N.C. Super.
2019).
22 The only scenario in which a 99 percent removal would be unattainable is if PFAS levels in intake water were
dramatically lower. That is not a realistic scenario for the duration of this permit.
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