NC0003573_Renewal-Response_20171221

SOUTHERN ENVIRONMENTAL LAW CENTER
Telephone [phone]
VIA E-MAIL AND U.S. MAIL
Michael Regan
601 WEST ROSEMARY STREET, SUITE 220
CHAPEL HILL, NC 27516-2356
December 21, 2017
Secretary
NC Department of Environmental Quality
401 Permitting
1617 Mail Service Center
Raleigh, NC 27699-1617
[e-mail]
Facsimile 919-929-9421
o CCC OIL
D
IAN 0 � 2018
D - AER RES U ES
401 & BUFFER PERMITTING
Re: Renewal of NPDES Permit No. NC 0003573 for the Fayetteville Works Facility
Dear Secretary Regan -
On behalf of the Cape Fear River Watch, the Southern Environmental Law Center is
writing to provide guidance as the North Carolina Division of Water Resources ("DWR")
considers legislative proposals by the House Select Committee on River Water Quality and the
renewal of National Pollutant Discharge Elimination System (NPDES) Permit No. NC 0003573
for the Fayetteville Works Facility. As DWR stated in its September 7, 2017 complaint against
the Chemours Company FC, LLC ("Chemours"), Chemours and E.I. du Pont de Nemours and
Company ("DuPont") have knowingly polluted North Carolina's public water sources with
GenX and other toxic chemicals for decades, causing widespread and dangerous contamination
to the state's surface and groundwaters.1 We applaud DWR for diligently investigating and
prosecuting the companies' actions thus far. DWR's obligations with respect to protecting the
Cape Fear River and the communities that rely on it are far from over, however, and we believe
the agency should clearly assert its authority to prohibit discharges such as GenX unless, and
until, Chemours can demonstrate that these toxic pollutants do not violate state water quality
standards.
DWR's September 7, 2017 complaint requests an inunction requiring Chemours to
"[e]liminate the discharge of PFASs to surface waters until such time as DEQ issues a NPDES
permit authorizing such discharge "2 The Partial Consent Order issued on September 8, 2017
by the Bladen County Superior Court similarly states that "Chemours shall immediately prevent
the discharge of PFESA compounds... until such time as a[] NPDES permit with permit
conditions authorizing any such discharge is issued. ,3 These statements indicate that DWR
could potentially allow the discharge of GenX and related compounds from the Fayetteville
Works Facility. As discussed in this letter, however, DWR cannot currently issue any NPDES
' Complaint, N C Dept of Environmental Quality v Chemours, 17 CVS 580 (N C Super. 2017)
2 Complaint at 28, N C Dept of Environmental Quality v Chemours, 17 CVS 580 (N C Super 2017) (emphasis
added)
s Partial Consent Order, N C Dept of Environmental Quality v Chemours, 17 CVS 580, 2 (N C Super 2017)
(emphasis added)
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permits that allow for the discharge of these pollutants without violating state toxic substance
standards and the CWA. GenX, and similar compounds, are toxic substances, as defined by
North Carolina regulations promulgated under the CWA.4 The same regulations require DWR to
prohibit the discharge of emerging PFASs and related compounds until it has sufficient scientific
data to determine health -based standards and appropriate effluent limits.
I. The Clean Water Act prohibits discharges—Chemours has no right to pollute the
Cape Fear River.
The Clean Water Act is clear—"it is the national goal that the discharge of pollutants into
the navigable waters be eliminated. ,5 Although the Act was ambitious in setting the target of
achieving that goal by 1985, it remains the national goal. Dumping chemicals like GenX and
other byproducts from the Chemours facility into rivers is intended to be the limited exception to
that general rule That default position, that no discharge is allowed, is recognized in state rules,
which place the burden on Chemours and other permit applicants to "provide sufficient evidence
to reasonably ensure that the [discharge] will comply with all applicable water quality standards
and regulations."6 Until the company can demonstrate that its discharge meets those standards,
DWR cannot lawfully issue a permit.
II. State standards prohibit discharging toxic substances in toxic amounts into
drinking water.
North Carolina defines toxic substances as:
any substance or combination of substances [... ], which after discharge and upon
exposure [..], either directly from the environment or indirectly [... ], has the potential to
cause death, disease, behavioral abnormalities, cancer, genetic mutations, physiological
malfunctions (including malfunctions or suppression in reproduction or growth) or
physical deformities in [... ] organisms or their offspring.8
In addition, state regulations on toxic substances explicitly provide for both numerical
and narrative standards.9 The rules state that:
the concentration of toxic substances, either alone or in combination with other wastes, in
surface waters shall not render waters injurious to aquatic life or wildlife, recreational
activities, public health, or impair the waters for any designated uses. 10
4 15A N C Admin. Code 2B.0202(64)
533USC §1251
6 15A N C Admin Code 02H.0112(c).
7 15A N C Admin. Code 02H 0112(c)
8 15A N C. Admin Code 2B 0202(64) (emphasis added)
9 While numerical standards are listed in 15A NCAC 02B .0211 and 0220 of the North Carolina Administrative
Code, narrative standards are listed in 15A N C Admin. Code 2B 0208
10 15A N.0 Admin Code 2B 0208(a)
2

Accordingly, the concentration of toxic substances "either alone or in combination with
other wastes" cannot "impair the waters for any designated uses.l i The Fayetteville Works
Facility discharges into a section of the Cape Fear River that is classified as both a Class C and a
Water Supply -IV water. The Cape Fear's waters are protected as a "source of water supply for
drinking, culinary, or food-processing purposes." 12 Thus, Chemours must provide "sufficient
evidence" to ensure that the concentration of toxic substances, in combination with each other
and background contamination in the river, does not impair any of these protected uses of the
Cape Fear River.
III. GenX and related compounds, are toxic substances under North Carolina
regulations.
Emerging contaminants, such as GenX, have been defined as materials that are likely to
enter the environment, that may cause adverse or unacceptable harm to human health or the
environment, and that do not have regulatory standards! These contaminants, including
perfluoroalkyl and polyfluoroalkyl substances (PFASs), also known as perfluormated
compounds, are increasingly found In our waters They have already been found to have severe
health and environmental risks, to slowly accumulate over time in the tissues of living
organisms, and to degrade "very slowly, if at all." 14 As discussed below, both legacy and
emerging PFASs are toxic substances, as defined by North Carolina's toxic substance standards.
Of the known PFASs, perfluorooctanoic acid (PFOA) and perfluorooctyl sulfonate
(PFOS) have been produced and studied the most. After both PFOA and PFOS had been
consistently released into the environment for decades, the U.S. Environmental Protection
Agency (EPA) learned that the compounds are readily absorbed by humans and animals, that
they accumulate in our bodies, and that they persist for a long period of time. 15 Studies show that
long -chain PFASs, including PFOA and PFOS, can cause developmental effects to fetuses and
infants, kidney and testicular cancer, liver malfunction, hypothyroidism, high cholesterol,
ulcerative colitis, lower birth weight and size, obesity, decreased immune response to vaccines,
and reduced hormone levels and delayed puberty. 16 Exposure to long -chain PFASs has caused
other adverse health effects in laboratory animals, including liver toxicity, disruption of lipid
metabolism and the immune and endocrine systems, adverse neurobehavioral effects, neonatal
toxicity, tumors in multiple organ systems. 17
11 15A N C Admin Code 213 0208(a)
12 15A N C Admin Code 02B 0216(1), 15A NCAC 02B 0101(c)(6)
13 Integral Consulting, Compendium of State Regulatory Activities on Emerging Contaminants (2016), available at
http //www mtegral-corp com/wp-content/uploads/2016/06/Integral_EC_State-Summary-Report_Final pdf
14 The Madrid Statement on Poly- and Perfluoroalkyl Substances (PFASs) A 107 (May 2015), available at
https //ehp.niehs nih gov/wp-content/uploads/123/5/ehp.1509934 alt pdf ("The Madrid Statement")
15 EPA, Basic Information about Per- and Polyfluoroalkyl Substances (PFASs), available at
https•//www epa gov/pfas/basic-information-about-and-polyfluoroalkyl-substances-pfass#tab-1; EPA, Fact Sheet on
PFOA & PFOS Drinking Water Health Advisories 2, available at https //www.epa gov/sites/production/files/2016-
06/documents/drinkmgwaterhealthadvisories_pfoa_pfos_updated_5 31 16 pdf
16 The Madrid Statement, at A 107; see also EPA, Fact Sheet on PFOA & PFOS Drinking Water Health
Advisories, 2
17 The Madrid Statement, at A 107
3

Some companies, including DuPont, have voluntarily eliminated their production and
discharge of PFOA through EPA's PFOA Stewardship Program. 18 However, legacy PFASs, such
as PFOA and PFOS, continue to persist in the environment, including in the Cape Fear River. 19
In addition, companies such as Chemours and DuPont have replaced previously -used long -chain
PFASs with new short -chain PFAS alternatives, including GenX. As stated by DWR in its
complaint, these companies then proceeded to discharge them directly in public drinking water
supplies without providing DWR with any notice. 20
The studies that have been conducted on these chemicals suggest that these new PFASs
similarly pose significant health and environmental dangers. As stated in the Cape Fear Public
Utility Authority's ("CFPUA") complaint filed in the Eastern District of North Carolina, DuPont
began studying the health effects of GenX around 1963 and submitted health and safety data to
the EPA, which showed that GenX had health effects in laboratory animals "consistent with the
effects of other PFASs, such as effects on the liver, kidney, pancreas, testicles and immune
system"21 Preliminary laboratory studies of GenX on animals have also caused pancreatic, liver,
and testicular cancer. 22 Furthermore, the North Carolina Department of Health and Human
Services' (DHHS) State Epidemiologist, Zack Moore, testified before the House Select
Committee on River Quality that these animal studies on emerging PFASs appear to indicate
toxicity for humans. 23
Not only have studies shown that emerging PFASs pose high health risks to humans and
other organisms, they also show that these compounds could bioaccumulate and persist in our
bodies and the environment. In DuPont's 2009 Toxic Substances Control Act Consent Order,
entered into with the Environmental Protection Agency ("EPA"), the EPA warned DuPont that
GenX and similar PFECA compounds "could bioaccumulate and be toxic ... to people, wild
mammals, and birds," that they "are expected to be absorbed by all routes of exposure," that they
are expected "to be highly persistent in the environment," and that "there is high concern for
possible environmental effects over the long-term."24
In May of 2015, two hundred researchers and scientists published "the Madrid Statement
on Poly- and Perfluoroalkyl Substances," and warned government officials, manufacturers, and
18 EPA, Fact Sheet. 2010/2015 PFOA Stewardship Program, available at https //www epa gov/assessinb and-
managing-chemicals-under-ts ca/fact-sheet-20102015 -pfoa-stewardship-program
19 Knappe et al , Legacy and Emerging Perfluoroalkyl Substances Are Important Drinking Water Contaminants in
the Cape Fear ("Knappe Study"), A, Environmental Science & Technology Letters, Nov 10, 2016
20 Complaint, N C Dept of Environmental Quality v Chemours, 17 CVS 580 (N C Super 2017)
21 Complaint at 10, Cape Fear Public Utility Authority v Chemours Co FC, LLC, et al (E D N C 2017)
22 NC DEQ, Fact Sheet on GenX Health Information (2017), available at
https //files nc.gov/ncdeq/GenX/GenX%20factsheet%20FINAL%2013Sep2Ol7 pdf, NC DHHS, Questions and
Answers Regarding North Carolina Department of Health and Human Services Updated Risk Assessment for GenX
(Perfluoro-2-propoxypropanoic acid) ("NC DHHS GenX Risk Assessment"), July 14, 2017, available at
https•//ncdenr s3 amazonaws.com/s3fs-
public/GenX/NC%20DHHS%20Risk%20Assessment%20FAQ%20Flnal%20Clean%20071417%20PM pdf
23 Laura Leslie, House Lawmakers meet on GenX, WRAL, Sept 28, 2017, available at http //www wral com/house-
lawmakers-meet-on-genx/I 69 80747/
24 U S Environmental Protection Agency, Consent Order and Determinations Supporting Consent Order for PMN
Substances P-08-508 and P-08-509 ("GenX TSCA Consent Order"), vii, xi, xii
11

the public not to underestimate the danger of short -chain PFAS alternatives. They wrote that
these alternatives
are still as environmentally persistent as long -chain substances or have persistent
degradation products. Thus, a switch to short -chain and other fluorinated
alternatives may not reduce the amounts of PFASs to the environment In
addition, because some of the shorter -chain PFASs are less effective, larger
quantities may be needed to provide the same performance. 25
A more recent study conducted in 2017 concluded that "[d]espite [having] different
molecular structures [... ], a majority of fluorinated alternatives displayed similar properties,
persistence and long-range transport as their predecessors."26 It also stated that "GenX is as
persistent and mobile as PFOA and could possibly be more intrinsically potent than PFOA,"27
and that the compound would cause a "similar [. ] environmental fate [as their] predecessors.
i28
Together, these studies show that emerging PFASs, including GenX and related
compounds, are toxic substances, as defined by state law.
IV. Any NPDES permit that allows for the discharge of emerging PFASs will violate
state toxic substance standards and the Clean Water Act.
Currently, DWR recognizes that it does not have sufficient scientific data to promulgate
numerical water quality standards for emerging PFASs, including GenX and similar
compounds. 29 On September 28, 2017, DWR testified to the House Select Committee on River
Quality that it required further data on the health risks of emerging PFASs before it could set
discharge limits on them. 30 That does not mean that emerging PFASs are unregulated. DWR
must still require any discharge to comply with state water quality standards on toxic substances.
Because Chemours has not provided "sufficient evidence" that it complies with toxic substances
standards, DWR must deny the requested permit. 31
Chemours and DuPont have already discharged toxic substances into the Cape Fear River
for nearly four decades. 32 GenX was found by EPA to be so dangerous that "every effort" must
25 The Madrid Statement, at A 107
26 Melissa Gomis, From emission sources to human tissues modelling the exposure to per- and polyfluoroalkyl
substances 28 (2017), available at http Hsu diva -portal org/smash/get/diva2 1085404/FULLTEXTOI pdf ("2017
Gomis Study")
27 2017 Gomis Study, at 27
28 2017 Gomis Study, at 26
29 NC DEQ Fact Sheet GenX Health Information (2017), available at
https //files nc gov/ncdeq/GenX/GenX%20factsheet%20FINAL%2013Sep2017 pdf ("There is not enough
information about GenX to know if people in North Carolina are likely to be exposed through sources other than
drinking water [ ] There is limited information about the health effects of GenX [ ] There is not enough
information to develop health goals for many other new or emerging PFAS at this time "), NC DHHS GenX Risk
Assessment.
30 NC DEQ Presentation to the House Select Committee on North Carolina River Quality, September 28, 2017
31 15A N.0 Admin Code 02H 0112(c)
32 Complaint at 13, N C Dept of Environmental Quality v Chemours, 17 CVS 580 (N C Super 2017), StarNews
notes from June 15, 2017 Chemours meeting with local, state officials, available at http•//news nhcgov com/wp-
content/up loads/2017/06/StarNewsNotesfromChemoursmeetingwithlo calstateofficials. p df
5

be made "to minimize or prevent any release to the environment of these substances," and found
that "uncontrolled ... disposal" of them "may present an unreasonable risk of injury to human
health and the environment "33 A NPDES permit that allows for any discharge of unstudied
PFASs would not only violate the Clean Water Act, it would further jeopardize the health of
already -suffering communities and the environment.
As the January 4, 2018 House Select Committee on River Water Quality meeting
approaches, we encourage DEQ to ensure that legislative actions do not infringe upon the
agency's authority to protect the public from GenX and other toxic pollutants. Existing law
requires an applicant to demonstrate that their pollution will not violate water quality standards,
including standards for toxic substances. Chemours cannot do so with respect to its discharge.
Therefore, we respectfully request that DWR prohibit the discharge of any unstudied PFASs in
reissuing Permit No. NC 0003573 for the Fayetteville Works Facility. Thank you for considering
these comments. Please contact Geoff Gisler at [e-mail] or 919-967-1450 if you have
any questions regarding this letter.
Sincerely,
( k,-5Z;//G2G
Derb S Carter, Jr.
Director, Carolinas Office
D41111Z /,7_
Geoffrey R. Gisler
Senior Attorney
Cc (via email):
Sheila Holman, NCDEQ
Linda Culpepper, NCDEQ
Kemp Burdette, CFRW
33 GenX TSCA Consent Order, xiv—xv (emphasis added)
0