Looking for Shelter under the Permit Shield

Posted on October 4, 2017 by George House

As a follow up to Kenneth Gray’s post on PFASs, the PFAS situation in the lower Cape Fear River of North Carolina is a new battleground for the Clean Water Act NPDES permitting process.  GenX is a product that DuPont, and now Chemours, began manufacturing in or about 2010 as a substitute for PFOA of Parkersburg fame.  When GenX is used in other processes at the same plant facility, it is released in the process wastewater as a byproduct.  While testing Chemours discharge for GenX, two other perfluorinated compounds, identified by EPA as PFESA Byproducts 1 and 2, were discovered.

The Department of Environmental Quality (DEQ) of North Carolina sued Chemours (spin-off of DuPont) on September 7, 2017 and sought injunctive relief from the North Carolina Superior Court for an order requiring Chemours to, “immediately cease discharging the substances identified as PFESA Byproduct 1 and PFESA Byproduct 2  . . . from its manufacturing process into the surface waters . . . and, to continue to prevent the discharge of process wastewater containing GenX into the waters of the State.”   DEQ alleged among other things that Chemours and its predecessor DuPont, “failed to timely disclose to DWR (the permitting authority) the discharge of GenX and related compounds into the Cape Fear River” and, “In particular, none of the DuPont and Chemours NPDES permit applications referenced ’GenX’ or any chemical name, formula, or CAS number that would identify any GenX or related compounds in the Facility’s discharge.”  Further, DEQ alleged, “Part of the permit applicant’s burden . . . is to disclose all relevant information, such as the presence of known constituents in a discharge that pose a potential risk to the human health.” 

By letter from counsel dated September 8, 2017, Chemours responded, “The NPDES permit specifically describes the portion of the Fayetteville Works’ complex that generates the PFESA’s and, in accordance with well- and long-established NPDES permitting practice as construed and ratified by the courts, this is sufficient for the discharges to be covered by the permit . . . . chemical substances did not have to be enumerated by name in Chemours’ NPDES permit in order to be covered under the permit, so long as the process from which they were generated was described in the permit.”  Chemours further stated that this situation, “characterizes the circumstances that also prevail at countless permitted facilities throughout North Carolina and the rest of the United States, where numerous untested and unregulated trace-level compounds are present in permitted discharges”.

North Carolina courts will now have to grapple with the issues presented in Piney Run Pres. Ass'n v.Cnty. Comm'rs that was recently cited with approval in S. Appalachian Mt. Stewards v. A&G Coal Corp., both Fourth Circuit cases, and rule upon the issue of how much information a permit applicant must disclose to successfully avail itself of the “permit shield.”



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