Read the full article by Pat Rizzuto (Bloomberg Law)

“Community and environmental groups are exploring legal responses after the EPA approved shipments of up to 4.4 million of pounds of PFAS wastes to a Chemours plant in North Carolina that has been the source of previous pollution.

The Environmental Protection Agency’s approval (Notice ID: 035594/07I/23Notice ID: 035605/07I/23) of up to 100 shipments of wastes containing per- and polyfluoroalkyl substances (PFAS) from the Chemours Netherlands B.V. facility in Dordrecht to the Chemours Fayetteville Works plant was first reported by NC Newsline earlier this month.

The shipments, previously a routine way Chemours recycled chemicals, are alarming local residents because the company and factory from which the wastes are being shipped has been held liable and continues to face scrutiny by Dutch authorities. Also, since 2018, when Fayetteville received its most recent shipments from the Netherlands, the EPA has advised near-zero drinking water limits nationwide for several PFAS.

An injunction could be sought to try and stop the imports, said Theodore J. Leopold, a Cohen Milstein Sellers & Toll PLLC, partner and co-lead counsel in Nix v. The Chemours Co. FC LLC, a class action case seeking property damage and related claims alleged from PFAS.

Both Leopold and Robert M. Sussman—an environmental lawyer who represents local residents in a lawsuit, Center for Environmental Health v. Michael Regan—said they’ve fielded questions about options to oppose the EPA’s decision, but neither have heard of a group choosing a specific action.

Emily Donovan, co-founder of Clean Cape Fear, said the North Carolina community group is examining legal and other actions.

The community is tired of being a ‘sacrifice zone’ for a government that’s allowing chemical companies to dictate policies ‘at the expense of our health, our families, and our livelihood,’ she said.

Local residents’ concerns and questions about the wastes being shipped to their community are heightened because of actions in the Netherlands, Donovan said.

The Netherlands’ Public Prosecutor’s Office has launched a criminal investigation of Chemours’ managers, and the Rotterdam District Court in September ruled that Chemours Co. and DuPont de Nemours Inc. are liable for past PFAS emissions.

EPA: No Other Choice

The EPA’s approval means the Fayetteville plant can resume importing wastewater containing hexafluoropropylene oxide (HFPO), a type of PFAS, for recycling and reuse, an activity it did until 2019. The Fayetteville plant is the only US site where HFPO is produced, according to EPA information.

The shipments stopped while the Netherlands’ Human Environment and Transport Inspectorate (ILT), which supervises waste imports and exports, and Chemours answered questions the EPA posed in late 2018 and in 2020.

‘Insufficencies’ in previous importation requests were addressed, the agency said in a recent statement.

Neither the federal or state consent orders under which Chemours operates in Fayetteville prohibit the importation of waste containing HFPO at the facility, the EPA said.

Absent ‘other disqualifying circumstances’ the EPA had ‘no course of action other than to provide the conditional consent,’ the agency said.

Conditions it imposed include that only nonhazardous wastewater containing recoverable amounts of the HFPO chemicals be shipped to the Fayetteville facility, the EPA said.

HFPO chemicals often are called GenX, but that term refers to the technology Chemours uses with HFPO to make fluoropolymers used by semiconductor, electric vehicle, and other manufacturers.

The Dutch government’s investigations and other actions involving the Chemours’ Dordrecht site haven’t impacted the volumes of PFAS substances leaving the Netherlands, said ILT spokesperson Sascha Elzinga.

EPA had another choice, according to Scott Faber, an attorney and senior vice president of government affairs for the Environmental Working Group.

The agency should have postponed its approval until it issues guidance describing how PFAS wastes can be disposed of and finalizes a rule for managing HFPO and three other types of PFAS, said Faber, whose advocacy group has raised concerns about these chemicals for more than 20 years.

The 2020 National Defense Authorization Act required the EPA to release that updated PFAS disposal guidance by December. A proposed Resource Conservation and Recovery Act rule that the EPA announced in 2021 is under review by the White House.

The EPA’s decision to approve the PFAS waste imports, just months before it’s required to issue disposal guidance, could be raised in an administrative appeal asking the agency to revoke its approval, said Sussman, who previously advised the EPA, including serving as its Chief Operating Officer and Regulatory Policy Officer during the Clinton administration.

Waste Oversight Boosted

Chemours is complying with all applicable laws, permits, and consent orders and agreements, including a 2021 waste agreement, said Chemours spokesman Thom Sueta.

Under that agreement, Chemours must analyze all spent fluorine containing wastes it receives and ensure that no hazardous waste is accepted for reclamation.

The company signed the agreement after the EPA alleged two samples of PFAS wastes shipped to Fayetteville in 2017 and 2018 were corrosive, making them hazardous wastes.

The company doesn’t discharge any processed water from the site, Sueta said.

Chemours seeks to recycle as much HFPO as possible, as part of its sustainability commitment, Sueta said. The amount of HFPO-containing liquids Fayetteville Works expects to import is far less than the amount the EPA approved. It’s expected to be closer to historically imported levels, he said.

The amounts imported to Fayetteville from Dordrecht ranged from 10 metric tons, 22,046 pounds in 2014, to 116 metric tons, 255,736 pounds in 2018, according to ILT.

About 45% of the liquids it receives from Dordrecht are recoverable HFPO, and the remaining residues are incinerated at licensed US facilities, according to information ILT reported in 2018 and Chemours confirmed.

Congress temporarily banned the Pentagon’s incineration of PFAS waste in the fiscal 2022 defense authorization bill due, in part, to questions about the temperatures necessary for their destruction.

The EPA said Chemours already handles the residuals that remain after it recovers HFPO as hazardous wastes even though they’re not classified as such.”