New Year’s resolution: Comment today on DEQ’s draft consent order for Chemours

The fine is historic — a $12 million penalty, plus $1 million in investigation costs — but no amount of money can repair the environmental damage — and possibly the harm to human health — inflicted by Chemours.

A draft consent order issued by the state Department of Environmental Quality is intended to lay to rest Chemours’ decades-long illegal discharges of toxic perfluorinated compounds — PFAS — from its Fayetteville Works plant into the air, the groundwater and the Cape Fear River, as well as public and private drinking water supplies.

But while DEQ’s proposed penalty is an unprecedented amount for a single site, the consent order can’t undo the 40 years’ of contamination that now percolates in the riverbed of the Cape Fear, in the lakes and fish and groundwater. It can’t rectify the decades of lies, half-truths and misleading statements issued by Chemours. The consent order can’t answer so many questions: How do you put a price on clean drinking water? How do you put a price on trust? How do you punish arrogance?

In Bladen County, where private drinking water wells have been contaminated, the consent order requires Chemours to pay for alternate water supplies for affected households whose wells tested above the state’s health goal of 140 parts per trillion: connection to a public water line, whole-house filtration systems, or under-sink reverse osmosis systems. 

For households that choose to connect to public water, Chemours is required to pay their water bills — up to $75 a month — for 20 years. 

“No one should be drinking water with PFAS above 10 parts per trillion,” DEQ Assistant Secretary Sheila Holman told the media last month. That threshold is for individual compounds; the EPA has advised that drinking water shouldn’t contain combined levels of more than 70 ppt for PFOA and PFOS.

But people are drinking water with compounds above that benchmark. Downstream in Wilmington, the Cape Fear Public Utility Authority has released data showing that finished water — treated and delivered to 200,000 households — routinely contains combined levels of PFAS far above 70 ppt. And any many instances, the 10 ppt threshold was also exceeded.

While the levels of PFAS have declined over time because of additional treatment techniques, finished water in many cases still contains higher concentrations of the compounds. Eighteen months ago, CFPUA began routinely testing raw and finished water for per-fluorinated compounds. Oddly, results showed that levels of many of the compounds were higher in the finished water than they were in the raw water, which comes directly from the Cape Fear River.

For example, water testing data included in court documents filed by CFPUA show that last September and October, finished water contained higher levels of PFOA than raw water in 26 of 30 samples. For PFOS, this phenomenon occurred 24 of 30 samples; and for GenX it was 19 of 29 samples. (The table is on Page 42 of the court document.)

The cumulative total of all PFAS in finished drinking water ranged from 299 ppt to 672 ppt, for an average of 444 ppt.

Lindsey Hallock, director of public and environmental policy at CFPUA, said there are several reasons for the counterintuitive results. A delay in sampling times occurs when one bottle is taken from the raw water line and, later, another bottle is taken from the finished water line. “Because they are not the same batches of water, we cannot compare” the PFAS levels, she said.

Another possible cause is the water chemistry itself. The Sweeney Water Treatment Plant uses carbon filters as part of its biological filtering process. Utility officials suspect these filters have filled with PFAS compounds over the decades Chemours has been discharging the compounds to the Cape Fear River.

These filters may “prefer” certain compounds over others. As new compounds reach these filters, others may be released into the finished water, causing varying levels of PFAS in the drinking water, Hallock said.

CFPUA is replacing these filters with new carbon filters, which is expected to be completed this spring. At that time, Hallock said, “we expect to see immediate reductions in levels of the compounds in the finished water. This process is our interim solution to address PFCs in drinking water until a permanent upgrade to the Sweeney Water Treatment Plant is operational.”

That upgrade is estimated to cost $70 million over 10 years. If CFPUA wins its federal court case against Chemours, which is a separate action from DEQ’s consent order, the company could be required to pay for those upgrades rather than CFPUA customers.

CFPUA and many of its customers are displeased with the state’s consent order against Chemours. The utility has filed a motion to intervene in DEQ’s legal action, claiming the order doesn’t do enough for downstream users, and essentially favors private well owners near the plant. 

“DEQ’s decision to abandon any effort to seek relief for CFPUA and its customers means, by definition, DEQ’s interests have diverged from CFPUA’s interests in this enforcement action,” court documents read.

It is true that the draft consent order doesn’t require Chemours to pay for the utility’s upgrades. And those upgrades would be necessary to treat the raw Cape Fear River water to a higher standard that could be imposed by the state. But while CFPUA rightfully concerned about its ability to meet that standard, it has previously argued that DEQ isn’t responsible for fighting on its behalf. 

In the federal court case,CFPUA and its lawyers said seeking those monetary damages is outside the agency’s purview. Nor, the utility argued, does DEQ have the “purpose of vindicating individual property rights.”

Nor does the draft consent order require any prompt clean up of the contamination in the raw river water, the utility lawyers wrote. 

It’s uncertain whether that is even possible. Stirring up the sediment could release more contaminants, which degrade very slowly, into the water.

The consent order can serve as a deterrent and limit future discharges and emissions — although Chemours has been notoriously recalcitrant about compliance. But the damage — serious damage — is done. Everyone wants the river, the water, the air, to be the way it was. The way it will never be.