The URL can be used to link to this page

Home My WebLink AboutDEQ-CFW_00085000ROBINSON BRADSHAW � September 8017 �e�r��4�p-��b'a;��€�e�§�ra��h��.� s¢� 704.377.8380 : Direct Phone 704.373,3980 : Direct Fax GeneralWilliam F. Lane, Esq. ♦ *. NC Department of Environmental Quality 217 West Jones Street Raleigh, NC 276' We write on behalf of The Chemours Company FC, LLC ("Chemours") in response to that part of DEQ's September 5, 2017 letter which directs Chemours to cease discharges in any amount of two PFESA compounds (CASRN 66796-30-3 and CASRN 749836-20-2) from its Fayetteville Works facility by September 8, 2017 (hereinafter :::. a. �Cease and Desist l w.. or P 1 Order") as r pre-conditi for y!. s not suspending the Fayetteville NPDES Permit NCO003573 (the "Permit"). For the reasons set forth below, the PFESA Order violates applicable r contravenes the terms of Chemours' NPDES permit and long-standing NPDES permitting practice, is unsupported factually, technically or scientifically, and is arbitra and capricious on these and other grounds. Furthermore, there is no evidence whatsoever that these two trace level discharges represent an acute health risk or oth public health emergency that would justify DEQ's precipitous action. In continuing fidelity to the Company's commitment to fully cooperate with its regulators, and as we informed you and three other DEQ officials in our conference call on Wednesday (the "September 6 Call"), Chemours has already taken expeditious measures to identify an eliminate sources of these two PFESA compounds in its permitted discharge. The bases on which we have concluded that the PFESA Order is unlawful ,nclude, but are not limited to, the following: No Authorily. Chemours has requested, multiple times, that DEQ provide the legal authority for its PFESA Order, but to date DEQ has provided no such legal authority. When we spoke on the afternoon of September 6th—i.e., after DEQ issued its Order —you suggested that both of us research the statutes and regulations concerning the alleged authority for the PFESA Order. I have not heard back from you on the subject. ROMNSON, BRADSttAW & H SON, PA, Charlotte Office : 101 N. Tryon 5t., Ste. 1900, Charlotte, NC 28246 : 704,377.2536 DEQ-CFW 00085000 :omm' 0 r;g.r DEQ—CFW 00085001 r. 117, Page 3 ' Vaughn Hagerty, Did Chemours Tell NC It Was Discharging CenX, STAR NEWS (June 29, 2017) (quoting DEQ spokesman Jamie Kritzer). DEQ-CFW 00085002 2 Letter from Michael Johnson, Environmental Manager, FayettevilleWorks, toDavid Goodrich, NCDEWF-DivisionofWater Quality ai1(Apr. 23.2002). 3 Furthermore, from 2002 to today, Chemours has submitted three wastewater discharge permit applications, and DEQ had not requested further identification or permit requirements to address PFESAs orother fluorinated compounds. 4 For many reasons Chamounsbelieves that the 14OPPTlevel iaflawed. w- TA-' re 1-111, -E, Page 5 This recent turn of events is regrettable and was avoidable. Chemours has demonstrated the utmost good faith and willingness to cooperate with DEQ, but has been stymied by DEQ at every turn. The good faith was demonstrated when Chemours took action beginning on June 21 $'to capture and dispose off -site the process wastewater at its facility that was contributing to the trace levels of HFPO Dimer Acid (GenX) found in the Cape Fear River. Chemours did this as a good and responsible corporate czen of North Carolina, and at very substantial expense: 5 See "State Seeks to Stop Additional Chemical Discharges into the Cape Fear River," August 31, 2017, available at: https://www.ncdhhs.gov/news/press-releases/state-seeks-stop-additional-chemical- discharges-cape-fear-river. DEQ-CFW-00085004 WTOM W?_j1WA Page 6 Chemours remains wng to work with DEQ cooperatively to address responsibly and expeditiously any legitimate questions or concerns about the safety of its discharges and appropriate terms for its NPIDES permit. We have made the same commitment to DHHS. We urge DEQ to reconsider its hasty actions and unilateral positions; we urge the State to put aside gation and engage in open, transparent dialogue. And even in the absence of such reconsideration, as yet another gesture of its good faith, Chemours will pursue appropriate measures to reduce its discharges of the two PFESA compounds. To that end, based on the best analytical resources availableChemours has already identified the single source of significance in terms of discernible levels of the 2 PFESA compounds, to the best of the Company's present knowledge. Starting today, Chemours will cease releasing and will instead (before resuming the pertinent process operation) hold for off -site shipment and disposal, that identified waste stream. This action should result in a reduction in the already minute concentrations of these PFESAs in the facility's discharge. If, after implementing these changes, Chemours detects concentrations of concern still present in its NPIDES-permitted discharge, the Company is prepared to address such remaining concentrations further, as appropriate and feasible. That is the best we can do today. In sum, DEQ's PFESA Order violates applicable law, contravenes the terms of Chemours' NPIDES permit and long-standing NPIDES permitting practice, is unsupported by any facts or science made known by DEQ, and otherwise is arbitrary and capricious.. DEQ-CFW-00085005 is Page IMS FrnCiCO J. Pfl0iti, Aifnf �ffOrrly Linda Culpepper, DEQ Evelyn Brantley The Chemours Company, John Savarese Lipton, Rosen Ralph Levene Wachtell, Lipton, Rosen & Katz Lester Sotsky Arnold & Porter Kaye Scholer Joel Gross Arnold & Porter Kaye Scholer DEQ-CFW 00085006