A proposed federal consent decree between Chemours and the U.S. Environmental Protection Agency likely fails to provide further protections to communities downstream of the chemical company's Fayetteville Works plant, N.C. Attorney General Jeff Jackson said in an interview with Wednesday.
"This is an insult to the people of eastern North Carolina. It does practically nothing for the state. It sends a message that the EPA doesn't really care about groundwater contamination," Jackson, a Democrat, told the N.C. Newsroom.
"As Attorney General, we're going to do everything we can to actually make sure that Chemours is held responsible for the remarkable and extensive groundwater contamination that they allowed to occur in our state."
The consent decree, filed Tuesday, requires Chemours to conduct additional monitoring at the Fayetteville Works facility from which the company and its predecessors are alleged to have illegally discharged so-called forever chemicals into the Cape Fear River.
The agreement covers alleged releases of a number of per- and polyfluoroalkyl substances, or PFAS, which are commonly known as forever chemicals because their chemical makeup allows them to persist in nature. Scientists have linked the chemicals to a number of adverse health impacts, including certain cancers.
Chemours employees in 2017 told North Carolina officials that they and employees at DuPont, which owned Fayetteville Works before spinning Chemours off, discharged forever chemicals into the Cape Fear River beginning as early as 1980.
Much of the $450 million agreement covers facilities in other states, including $280 million to supply drinking water near the New Jersey and West Virginia facilities and $60 million to control discharges and emissions at Washington Works in West Virginia.
The decree would also mandate that Chemours spend $90 million over the next 15 years to control PFAS releases at the three plants, including Fayetteville Works. Part of that, however, is that Chemours can receive up to $36 million in credits if state level regulators such as the N.C. Department of Environmental Quality require that the company install pollution controls to reduce PFAS emissions or discharges.
The agreement, filed in the U.S. District Court for the Southern District of West Virginia, is not yet final and is open to public comment for the next 30 days. The proposal also covers alleged releases at plants now belonging to Chemours at Washington Works in Parkersburg, West Virginia, and Chambers Works in Deepwater, New Jersey.
As part of the agreement, Chemours would need to hire an independent engineer to evaluate the processes involving GenX, create a flow chart of Chemours' operations and identify any potential release points. The engineer would also be tasked with quantifying the potential release of GenX over a calendar year.
"Fayetteville Works is required to capture 99.5% of GenX emissions, including HFPO-DA byproduct emissions. Given the significant investment made in emissions control technologies at Fayetteville Works over the past decade, the site is well suited to meet this requirement," Jess Loizeaux, a Chemours spokeswoman, wrote in a statement.
Under the proposed agreement, Chemours will also pay a civil penalty of $22.5 million.
Chemours' market cap is about $3 billion.
"Through this commitment, Chemours will better control PFAS at its plants, allowing the company to continue its manufacturing operations while protecting communities in North Carolina, West Virginia, and New Jersey from PFAS exposure. This agreement ensures that the company will manufacture these critical materials in a responsible manner," Adam Gustafson, the U.S. Department of Justice's principal deputy assistant attorney general for the Environment and Natural Resources Division, said in a statement.
North Carolina's Department of Justice was not party to the consent decree, Jackson said, even though it "absolutely" would have wanted to be.
"This is a major issue to our state. We wanted U.S. DOJ and EPA to hold Chemours' feet to the fire because that's what the state deserves. They decided to completely stand down here, abdicate," Jackson said.
NC consent decree already in place
Those investments were largely mandated under a still-in-effect consent decree the chemical manufacturer reached with the N.C. Department of Environmental Quality and environmental watchdog Cape Fear River Watch in February 2019.
That agreement has resulted in Chemours taking a number of measures to significantly reduce forever chemical discharges and emissions, including the installation of a thermal oxidizer that captures and destroys PFAS, resulting in a 99% reduction in GenX emissions. It also led to Chemours' construction of a 1.5-mile long barrier wall and installation of water treatment system meant to capture and treat 99% of contaminated groundwater underneath the facility.
"When crafting the settlement agreement, Chemours’ existing Consent Order with NC DEQ was taken into account, along with the work that has already been done to significantly reduce PFAS emissions from Fayetteville Works," Loizeaux wrote.
Jackson, the N.C. attorney general, said his team is still working through the agreement but believes that it does little to actually protect communities in North Carolina.
If North Carolina receives a third of the discretionary spending that can be split among the three plants, Jackson said, that would be $30 million over 15 years, or $2 million annually. By comparison, Chemours officials have said that a thermal oxidizer at Fayetteville Works cost somewhere around $100 million when it was built nearly a decade ago.
"Even if there is a little bit of money here, it doesn't actually go to the State of North Carolina. The State of North Carolina isn't in the driver's seat on determining how it should be spent to remedy the groundwater contamination. The terms of this are totally favorable to Chemours," Jackson said.
