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Checking the record: NCDEQ never held Chemours accountable for missing its 'barrier wall' deadline


Back in 2019, the North Carolina Department of Environmental Quality had to be forced into regulating Chemours after it was caught dumping forever chemicals into the Cape Fear River. But the tenor of the relationship between DEQ and Chemours has remained cozy. WHQR’s Kelly Kenoyer brought environmental advocate Dana Sargent into the studio to discuss the issue.

In July of 2023, Chemours missed its deadline to construct a barrier wall to keep toxic PFAS from leaking into the Cape Fear River. At that time, NCDEQ declined to comment on whether it would fine the company for missing its deadlines. When NCDEQ declined, WHQR's Kelly Kenoyer made a public records request for all emails between NCDEQ and Chemours staff members related to the barrier project from January to June of 2023.

NCDEQ's estimate for how long it would take to fulfill this request was considerable, and seemed to violate the spirit of North Carolina's public records law. The Reporters Committee for Freedom of the Press represented WHQR and fought to obtain the records — which showed NCDEQ never discussed a fine with Chemours, and exerted little or no pressure to complete the wall more quickly.

You can find DEQ's and Chemours' comments in response to WHQR questions at the bottom of this article.

The following interview is a discussion of these events with Cape Fear River Watch Executive Director Dana Sargent.

Kelly Kenoyer: Well, Dana Sargent from Cape Fear River Watch. Thank you so much for joining me today.

Dana Sargent: Thanks for having me.

KK: So I want to have you into the studio today to kind of rehash something that happened last summer. And it starts with the Fayetteville Works barrier wall. Can we start by having you explain what this barrier wall is, what its purpose is, and when it was supposed to be completed?

DS: Sure. So the barrier wall is part of the Chemours Consent Order, which came about after Cape River Watch sued the company, and we sued the state Department of Environmental Quality. This consent order requires that company to do a whole bunch of things, including stopping the groundwater contamination from the site from reaching the Cape Fear River. So the barrier wall, it was meant to be a part of that protection, and so, the wall is a piece of it. And that sort of the end-point so that the water coming toward the river can't get into it. But before the wall, there are these catchments. And so they're a bunch of wells that are just gathering that water, running it through filtration, granular activated carbon, similar to what's at the Cape Fear Public Utility Authority site now, and then they'll be, you know, discharging that filtered water into the Cape Fear River afterwards.

KK: And the purpose of this barrier wall is really to stop all of the contamination that's at the Fayetteville worksite under Chemours from getting into the river in the first place. And there was this whole debate with NCDEQ, trying to figure out what level of contamination would be permissible. Advocates were able to get it to 99.9% of the PFAS being filtered out. That was the whole point of this entire conversation. And the barrier wall and all of the other components of that project are how that happens. But Chemours kind of sued to prevent it from being that restrictive, and they ended up getting their deadlines pushed. Can you talk a little bit about what that whole legal process was?

DS: Sure, so you know, Chemours originally, in their way, because everything with Chemours is based on their bottom line, was very supportive of the wall. They were actually sending out emails and the Department of Environmental Quality, the state, the DEQ, was contacting me asking if we were sending these emails saying "build the wall, build the wall." And I said, "No, that's not language, we generally use at Cape Fear River Watch." And it turned out it was Chemours. And they were essentially tricking the public into supporting the barrier, because the permit originally was so weak. And that means that they can run that system that granular activated carbon system cheaper, because they don't have to change out the carbon as much. So they can allow more PFAS to be released, so it doesn't cost them as much.

So they were very supportive of the wall, we got a whole bunch of public comments, our community came out strong. And the DEQ then issued the strongest PFAS permit at the time in the country on a discharger of PFAS. And that was really due to this public outcry in this community. And then Chemours, like they do, came out and and basically said we don't we're not going to support this and they tried to fight it in court, which led to the judge basically telling Chemours, "no, you have to do this, this is the level at which you have to do this." And then DEQ was, in my opinion, soft on them and allowed for a period of time for them to essentially test out the process and basically extend the deadline for the barrier wall construction, and the deadline for making sure that those contaminants are kept at the highest level of filtration as possible.

KK: So I recall that they had an initial deadline in the spring of 2023. And then the new deadline was pushed to May 31 of 2023. But what ended up happening is that they didn't meet that deadline, even the second delayed deadline, right?

DS: Exactly. We actually held our State of the River forum on June 1, and I presented on PFAS at that event. And at that time, I said to the audience, yesterday was the deadline, we've not yet heard. And this I think is what led, you know, WHQR into digging in and trying to figure out what happened.

KK: Yeah, exactly. At that time, I reached out to NCDEQ and I asked, "exactly what is going on here? Why have they been allowed to not meet this deadline? Are they going to be punished for this?" And the comment from NCDEQ was, "we're not going to give comment at this time." So I asked for all of their emails related to this project. They delayed for months, we ended up hiring an attorney pro bono to help us get these documents from NCDEQ. And now we have the internal emails that show exactly what the communications were between those two organizations as they were dealing with this project.

And it turns out, they knew that they weren't going to meet the deadline on May 22, and didn't inform the public. So we just saw that the deadline got passed and everybody reacted to it in the moment. There were a lot of different advocacy organizations that were furious about it. And then after that in June, they were just asking for updates on when it was going to be completed, and they never fined Chemours for blowing past the deadline.

DS: Yeah, I mean, the DEQ has traditionally not fined Chemours or called them out publicly, unless they are inclined to do it through public pressure. And that is extremely unfortunate. And just the fact that you had to spend so much time and hire a lawyer to get these public, what should be publicly available emails at the ready, is pretty asinine. And really the state, the Department of Environmental Quality. Their mission is to protect human health and the environment, we shouldn't in our industry, or yours as a watchdog of all of us, have to fight them to uphold their mission.

And so it's really disconcerting, that that whole process had to take place. And the fact that they didn't fine them. The DEQ continues to use the consent order as a ceiling. So the consent order does include areas where they should be fined. This happened to not be one of them. So the DEQ is hiding behind the fact that they don't essentially have to do it. But that doesn't mean they shouldn't. And that doesn't mean they don't have the authority to — they can fine them all they want. And they keep on using the consent order as, "well, it doesn't say we have to do that." Well, you know what? It doesn't say a lot because it was written in 2019. Right? We need to take what we've learned from 2019 to the present day, and DEQ should be using all of its enforcement abilities to hold this polluter accountable.

KK: I shared these emails with you after I received them. Is there anything else notable about these communications that you want to point out?

DS: Yeah, I mean, I hate to say this, but when we first found out about this issue, I was building a website for — then — Clean Cape Fear which I was a co-founder of — a really great community organization. And I did a lot of research into the DEQ microfiche, the history of their water permits with DuPont, and then Chemours. And the word that comes to mind is, it’s very “bro-y,” it's, unfortunately, it seems like they are all friends chumming around the water cooler together, rather than an enforcement agency communicating with a known polluter.

This email from NCDEQ's Eric Aufderhaar to representatives of Chemours encapsulates the cozy relationship between the regulator and the polluter. Despite the email's date two days past Chemours' deadline, the questions shared are "posed by a local environmental group," not NCDEQ, and there is no mention of the company missing its deadline.
This email from NCDEQ's Eric Aufderhaar to representatives of Chemours encapsulates the relationship between the regulator and the polluter. Despite the email's date two days past Chemours' deadline, the questions shared are "posed by a local environmental group," not NCDEQ, and there is no mention of the company missing its deadline.

KK: That's, I think that is an accurate read of some of these emails, talking about dealing with parents who are aging, that kind of thing. "Oh, I hope you have a nice weekend." Really, really, really polite and friendly conversation between these two institutions, when one is supposed to be holding the other to account. Exactly. Well, thank you so much for coming into the studio today. I really appreciate your expertise, Dana.

DS: Thank you so much for all your work on this Kelly.

Note: WHQR reached out to NCDEQ and Chemours about this story. Their full statements are below:

NCDEQ's Sharon Martin

Q: I’d like to know whether DEQ gave any kind of fine or other punishment to Chemours for missing its deadline for the Fayetteville Works Barrier Wall last year, what that punishment was, if it occurred, and the rationale for that decision.

A: DEQ did not impose a fine related to the construction delays for the barrier wall. The agency focused on making sure the project was properly completed and effectively meeting the limits required by the Consent Order and related permits.

Q: In my story, an advocate alleges an inappropriately cozy relationship between NCDEQ staff and Chemours staff, that perhaps explains why DEQ did not follow through on any punishment for Chemours after it missed its May 31 deadline for completing that barrier wall. This advocate was frustrated that Chemours was allowed to go additional days without protecting the public from PFAS contamination, and is concerned that DEQ favors Chemours rather than maintaining an appropriate role as a regulator. Can DEQ respond to this allegation?

A: DEQ continues to hold Chemours accountable both through the court-enforceable Consent Order and existing state laws and regulations. Since 2017, countless members of our staff have been engaged in the efforts to address the contamination caused by Chemours. Claiming that our staff has acted inappropriately is both unfounded and ill-informed.


Q. What was the cause of the delay in completing the barrier wall that led Chemours to miss the May 31 deadline by several days, and when, exactly, did the barrier wall get completed and begin operating?

A. Chemours completed the construction of our barrier wall and groundwater capture and treatment project in Fayetteville, NC consistent with our Consent Order and Consent Order Addendum with NCDEQ and Cape Fear River Watch. The groundwater treatment plant associated with the barrier wall construction became operational and began treating water on February 10, 2023, and the barrier wall was completed on June 11, 2023. At the time Chemours proposed the project, the company and DEQ recognized that various factors could impact and lengthen the projected completion date including adjusting the start of construction to allow time for DEQ approval of the project and appropriate permitting. Chemours also worked with our contract partners to resolve construction challenges such as supply of materials and mechanical breakdowns of equipment, and the company and our partners adjusted staffing to mitigate the impact to timing of these challenges.  

Q: Dana Sargent [of Clean Cape Fear] claims Chemours was voicing support for building the wall until DEQ began requiring filtration if 99.9% of the PFAS. She said Chemours was advocating for it at 99% because it would be cheaper to operate. Is that true?

A: Chemours is appreciative of the support we’ve received from DEQ and our community as we constructed this state-of-the-art groundwater extraction and treatment system and first-of-its kind barrier wall. Now that construction is complete, the system is capturing and treating groundwater, seep water, and stormwater with a removal efficiency of more than 99%. The 99% treatment efficiency was agreed upon with DEQ after determining the technology applicable to the unique conditions at the site. The treatment plant’s design was based on this efficiency target and was built to meet CO and CO addendum requirements. The final discharge limit was subsequently set by DEQ and was not based on cost. Our dedicated team of operators, scientists and engineers have been able to operate the system to achieve these stringent permit requirements.

Kelly Kenoyer is an Oregonian transplant on the East Coast. She attended University of Oregon’s School of Journalism as an undergraduate, and later received a Master’s in Journalism from University of Missouri- Columbia. Contact her on Twitter @Kelly_Kenoyer or by email: KKenoyer@whqr.org.