SOUTHEASTERN N.C. — Local and national nonprofits continue to fight for the Cape Fear region impacted by contaminated drinking water. They filed their third motion with the courts Friday in ongoing litigation with the Environmental Protection Agency.
Six groups are in a legal battle with the EPA over an initial petition from Oct. 2020 to test 54 per- and polyfluoroalkyl substances (PFAS), man-made chemicals, that directly impact residents downstream of Chemours Company’s Fayetteville plant, where the contamination is disseminated.
“There is so much sickness in this area,” Clean Cape Fear director Emily Donovan said. “We know this, and so it’s unconscionable to me. It’s one of the greatest American chemical coverups in history.”
In 2017, individuals living in the Cape Fear region were made aware of chemicals contaminating the Cape Fear River, the main source that provides drinking water for over 300,000 people. Chemours, the largest U.S. producer of PFAS, had been dumping toxic chemicals into the river for more than four decades.
As a result, Cape Fear River Watch, Center for Environmental Health, Clean Cape Fear, Democracy Green, NC Black Alliance and Toxic Free NC asked for testing on the chemicals to have a better idea on long-term health effects. The EPA released a set of preliminary data for PFAS collected in July 2021.
The data only revealed which facilities report PFAS, the substances they manufacture and process and in what quantity. The report showed 44 PFAS filed by 38 facilities showing over 700,000 pounds of production-related waste of PFAS was expelled in 2020. EPA will regularly update the data as facilities report it.
Additional research must be done to know the effects the chemicals might have on humans and the environment.
Without knowing the long-term health effects, the nonprofits said residents living in the area don’t have the knowledge on whether the contaminated drinking water can cause harmful medical conditions.
After the EPA denied the request for further testing of PFAS, the advocates asked for reconsideration. The EPA then changed its stance and granted the initial 2020 petition, yet with the stipulation that 47 of the 54 PFAS the group asked for didn’t qualify for testing protocols.
“Our people are really very frustrated and upset,” attorney Bob Sussman said. Sussman has been leading the case since 2020.
EPA refuses to test 47 of 54 PFAS
PFAS are “ubiquitous in the environment and people’s blood and harmful to human health,” according to the nonprofits’ argument. EPA released in a statement in 2020, the substances are “an urgent public health and environmental issue facing communities across the U.S.”
It estimates more than 12,000 PFAS are manufactured or found nationwide as of August 2021. Not enough data is available on all 12,000 to fully understand the harm they pose to humans and the environment.
In 2019, the N.C. Department of Environmental Quality issued Chemours a consent order calling for the company to permanently reduce PFAS air emissions and discharges by 99% and provide alternative drinking water supplies to affected residents.
As part of the consent orders’ guidelines, DEQ required Chemours to prepare a non-targeted analysis, or a search for unknown compounds, of PFAS sourced from its facility. Its sampling completed in 2020 identified 257 “potential unique unknown PFAS.”
Serving over 65,000 water customers in New Hanover County, Cape Fear Public Utility Authority specifically tests its drinking water for 70 “targeted” or known substances. It reported at least 18 present in its July 6 testing, resulting in a combined 126 parts per trillion (ppt).
By comparison, the EPA released a health advisory in June for GenX — a form of PFAS — setting levels to 10 parts per trillion. There are currently no regulations or advisories on other PFAS; however, the EPA said it has plans to release a proposed PFAS National Drinking Water Regulation this fall.
Due to the chemical makeup, PFAS don’t degrade, spread easily and can be found in surface water, groundwater, soil and air — earning them the colloquial label “forever chemicals.”
On Oct. 14, 2020, Sussman petitioned the EPA to compel Chemours to undertake comprehensive health and environmental testing on the 54 PFAS evident in the Cape Fear River.
“It’s incredibly important because we’re missing the ability to have real important conversations with our doctors,” Donovan said. “I get emails from residents constantly saying, ‘I got breast cancer.’ ‘I have a rare blood cancer,’ and they’re in their 50s. ‘Is it from the water?’”
The nonprofit is within its rights to ask for further evaluation from the EPA. The public can request testing on chemicals under section 21 of the 1976 Toxic Substances Control Act, a national program for assessing and managing the risks of chemicals. The EPA then reviews the petition and can choose to grant or deny it.
Center for Environmental Health et. al vs. EPA states 54 PFAS meet the criteria for testing since there is little-to-no data. Though they are similar to other tested PFAS that are known to cause adverse effects, according to the lawsuit.
Under the law, the EPA mandates testing under certain guidelines:
- If a chemical presents an unreasonable risk of injury to health or the environment
- There is not enough information to determine the effects
- If testing is necessary to develop the missing information
As Chemours is the one producing and distributing the chemicals, Sussman is also asking the company to be responsible for funding the testing.
“Central to the law is imposing accountability on chemical manufacturers,” as noted in Sussman’s petition.
“The least these companies could do after making billions of dollars is allow us the right to at least know what the risks are, and we don’t have that access right now,” Donovan said. “That’s the whole point of this petition.”
The initial petition included a plan for long-term studies, involving lab animals to determine whether PFAS detected in human blood and drinking water cause cancer, reproductive damage and other diseases, as well as testing for its impact to the environment.
On January 7, 2021, the EPA denied the petition entirely.
According to the EPA, “the petition failed to provide the facts necessary” to prove testing was required on all 54 substances. The agency said since it already had begun working on a National PFAS Testing Strategy, the requested studies by the nonprofits were not required; however, the fact that there isn’t sufficient information available on the PFAS is the exact reason the nonprofits want to pursue testing.
Following the petiton’s rejection, Sussman filed suit against the EPA asking for judicial review. He also submitted a request for reconsideration on March 4, 2021, which the EPA agreed to in September 2021.
Sussman and the groups agreed to not pursue litigation until the EPA made a new decision.
On Dec. 28, 2021, the EPA issued its decision on testing PFAS. It “granted” the petition and did not dispute the substances met criteria for testing, but the agency refused to test 47 of the 54 substances, calling it “unnecessary” according to a plan of action it had in place.
The EPA’s Office of Chemical Safety and Pollution Prevention, in collaboration with the Office of Research and Development, announced in October 2021 it was establishing a National PFAS Testing Strategy. The approach groups PFAS into 24 categories, as opposed to one at a time, as a “more efficient way to understand the risks associated with PFAS.”
It claims nearly 3,000 PFAS will fall into the 24 groupings.
“The problem is, there isn’t enough research on even how to categorize this stuff,” Cape Fear River Watch executive director Dana Sargent Sargent said. “If there is information, where is it? And why hasn’t it been shared?”
Sussman interpreted their decision as a denial of his clients’ original petition since it didn’t clearly address the 54 PFAS they requested. On Feb. 1, Sussman reactivated the lawsuit with an amended complaint against the EPA.
Sargent said the EPA’s response came as a “gut punch,” personally and to the community.
“It would have been, in my opinion, more honorable to just say: ‘We can’t grant this’ and said why,” she explained. “Instead, it seems like they tried to bury it with language.”
EPA calls case ‘moot’
Sussman originally filed the case in Oakland, California. While the Center for Environmental Health, one of the six nonprofits involved in the litigation, has a presence in North Carolina, it’s headquartered out west. Sussman said he thought the nonprofits’ petition would have more merit if heard in an area where similar cases were won.
In 2018, the EPA settled with Oakland companies after alleged violations of the Clean Water Act. In 2021, another case involved exposure to chemicals in agricultural produce and led to the EPA issuing a rule to control the substance.
Represented by U.S. Department of Justice attorneys Hubert Lee and Brandon Adkins, the EPA asked to have the PFAS testing case moved to where it’s relevant in North Carolina and to have the ability to call locals in to testify.
On May 9, the case was transferred to the U.S. District Court for the Eastern District of N.C. It landed on the desk of Wilmington native Judge William Richard Myers, who attended UNCW and was a professor at UNC Chapel Hill before taking his seat.
Since it legally granted the petition, EPA filed June 23 to dismiss the lawsuit, citing the courts’ “lack of jurisdiction.”
However, the nonprofits said with so many restrictions and conditions the EPA placed on approving PFAS studies, the petition was “not granted” and taken by the plaintiffs as an outright denial of its ask, citing their right to be heard in court.
“Our position is that the court can’t simply accept the label EPA applies to its action but needs to look at the underlying reality of what the agency did,” Sussman said, referring to the fact that the EPA said all but seven PFAS would not require testing.
Also, under the Toxic Substances Control Act, after granting a petition, the EPA merely has to “commence an appropriate proceeding,” or begin some form of action. The agency is saying it did that by showing it has begun testing for a first phase of PFAS and most of the substances requested “overlap” with ones already identified to be studied.
On June 6, the EPA issued the first order, directing Chemours to develop and submit information regarding 6:2 fluorotelomer sulfonamide betaine. Within this group, 30 of the 54 PFAS identified by the advocacy groups will be tested.
The other nine substances are not identified in the first phase, and the remaining 15 “do not fit the definition” of the testing strategy, the motion states — though they may fall into future groups to be studied, it adds.
According to the EPA’s motion, judicial action would only be required if the EPA denied the petition or “failed to act” in a timely manner.
It says it did neither, calling the case “moot.”
“They’re completely tone deaf,” Donovan explained. “[EPA] completely missed the point. They’re trying to lump us into existing work, and that’s great, they should keep doing that work but they should also address this community’s concerns because it is massive, and we deserve that right. They can do both.”
De novo proceedings
The other issue at hand filed by EPA is the request to not allow for a “de novo proceeding,” which means a trial case before the courts where evidence is presented, witnesses are called upon and there’s an opportunity to question EPA officials on why they chose to “deny” the petition.
The third brief Sussman filed Friday is the latest response to EPA’s request, which calls for the judge to base his decision solely on the initial 2020 petition and EPA’s supporting documents, without introducing new evidence.
“We’re saying, what Congress wanted to give us when it wrote the TSCA law that petitioners have opportunities to present their case in a trial,” Sussman said, “But the EPA, it seems, doesn’t want the judge to hear the evidence.”
The EPA has a short time, roughly two weeks Sussman said, to submit a reply. At that point, “it’s all in the hands of the judge.”
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