Chemours blasts state's GenX efforts as secret, arbitrary, 'unsupported factually'

In a letter to DEQ's in-house attorney, the company described itself as a good corporate citizen "stymied by DEQ at every turn" and exasperated by unrealistic demands. It pointed to at least two efforts going back to 2002 to turn DEQ's attention to chemical discharges similar to the ones now causing pollution concerns in the river, saying they essentially were met with silence.

DEQ spokesman Jamie Kritzer said Friday that the agency is "focused on results" and that the administration got what it wanted last Friday when a Superior Court judge signed off on a consent order that at least partially resolves a lawsuit state regulators brought to stop Chemours from dumping even small amounts of chemicals called PFESAs into the river. Gov. Roy Cooper's office said the same, adding that "the state will continue to hold the company accountable."

These chemicals are potentially toxic but not well studied. The company agreed back in June to stop discharging GenX, a chemical used to make Teflon, after a series of articles in The Wilmington StarNews keyed in on the compound's presence in local drinking water. Negotiations with the state became more contentious after new PFESAs were detected in the river, leading to the state's lawsuit and threat to revoke the company's discharge permit.

Both moves from the state followed scrutiny from Republican legislators and others, who questioned the Cooper administration's response.

Chemours' letter is dated Sept. 8 – the same day the consent order – and it lays out the basics of a potential legal strategy. Company attorneys wrote that the state's push to curtail discharges by threatening Chemours' permit "violates applicable law ... is unsupported by any facts or science ... and otherwise is arbitrary and capricious."

Chemours argued that the state's initial demand that the company stop discharging these chemicals within three days was inconsistent with the state Department of Health and Human Services' repeated promises that municipal water supplies drawn from the Cape Fear River remain safe to drink. Chemours said known carcinogens are allowed in North Carolina drinking water in far higher concentrations than what the state now expects for the unregulated chemicals that once flowed from the plant, even though their health risk hasn't been established.

The state's dealing with the company has been so skewed, the letter states, that it violates due process rights under the 14th Amendment.

Both the House and the Senate have select committees reviewing the Cape Fear River water issues and the state's response. Sen. Trudy Wade, R-Guilford, chairwoman of the Senate committee, said Friday that the committee may delve into topics in Chemours' letter.

"Unfortunately, to date, representatives of Chemours have refused to come forward and appear publicly before any legislative committee, which is very concerning," Wade said in the statement.

The company has also failed or declined to comment to WRAL News in recent weeks. Subpoenas made public indicate that the U.S. Attorney's Office is investigating, and Cooper directed the State Bureau of Investigation to consider its own inquiry in July.

From the beginning, the chemistry involved and the emerging nature of compounds produced at Chemours' Fayetteville Works has made it difficult to pinpoint just what plant operators told the state over the years and how concerned officials should have been as unregulated chemicals without clear health effects turned up in the river. Chemours said in its letter last week that its predecessor at the Fayetteville Works, DuPont, told DEQ in 2002 the facility "manufactures many fluorocarbon compounds" that "create dozens or hundreds of byproducts in very low concentrations."

This is a pushback on DEQ's assertion that Chemours misled the department, failing to tell regulators GenX was going into the Cape Fear River. DuPont said in its 2002 letter that it was considering a study of these byproducts.

"The fluorochemistry involved in this processes is exceptionally complicated, and most of the byproducts are unknown compounds," that letter states. "There is no standard method to identify these compounds."

GenX and other chemicals found in the Cape Fear River fall within this family of fluorocarbon compounds. The chemical GenX essentially replaced at the plant, PFOA or "C-8," has been studied longer and is known to cause cancer in animal tests. It generated hundreds of millions in fines and settlements against Chemours and Dupont.

Chemours said the 2002 letter failed to trigger a DEQ request for further testing or to quantify the chemicals mentioned, "much less cease their discharges." The department also didn't follow up in 2015 when a Chemours employee sent DEQ a scientific paper identifying two PFESAs in the river, the letter states.

The company argues that state permit rules don't require a compound-by-compound listing of everything pumped into the river, in part because of legal precedent that determined "it is impossible to identify and rationally limit every chemical or compound present." It said the state's Sept. 5 order threatening the company's discharge permit "disregarded even the most basic rudiments of fair play and proper process," in part because the state did not follow North Carolina public notice requirements designed to prevent "precisely this ill-conceived, closed-door decision-making."​