WILMINGTON, NC (WWAY) — This afternoon, CFPUA’s environmental counsel notified Chemours, DuPont and the State that CFPUA intends to file a lawsuit against Chemours and DuPont in federal court to enforce the requirements of the Clean Water Act and Resource Conservation and Recovery Act.
According to the CFPUA, unauthorized discharges of GenX Pollutants by Chemours and DuPont are causing direct violations of North Carolina water quality standards adopted and enforced pursuant to the CWA.
A provision of the RCRA permits citizens to commence a civil action against any person […] including any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal facility, who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment. Chemours and DuPont are both in violation of this RCRA provision, based on their discharges, disposals and other releases of GenX Pollutants described in the letter.
Part of the letter sent to Chemours and DuPont states, “The federal court complaint will allege that: Chemours is in continuing violation of an “effluent standard or
limitation” under the CWA (33 U.S.C. § 1365(a)(l)); and Chemours and DuPont have contributed, and Chemours is contributing, “to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment” in violation ofRCRA (42 U.S.C. § 6972(a)(l)(B)). This notice is provided to you pursuant to and in accordance with the requirements of Section 505(b)(l)(A) of the CWA, 33 U.S.C. § 1365(b)(l)(A), and Section 7002(b)(2)(A) ofRCRA, 42 U.S.C. § 6972(b)(2)(A).”
The letter also claims the NPDES Permit does not authorize and has never authorized discharge of GenX Pollutants from the Fayetteville Works facility. In order to operate in comliance with an NPDES permit, the permit holder must (1) comply with the express terms of the permit; and (2) not make a discharge of pollutants that was not within the reasonable contemplation of the permitting authority at the time the permit was granted. Piney Run Pres. Ass ‘n v. County Comm ‘rs of Carroll
County, 268 F.3d 255 (4th Cir. 2001). Because Chemours and DuPont never identified the GenX Pollutants as constituents in their effluent, the substances could not have been within the contemplation ofDEQ, and are therefore not authorized to be discharged by the NPDES Permit.
CFPUA intends to file suit not earlier than 60 days after this notice is given as authorized by the Clean Water Act.
CFPUA also received the latest water sampling date for the Sweeney Water Plant. Levels of GenX continue to remain below the NC DHHS health advisory of 140 ppt. Samples taken July 27 show raw samples at 55.5 ppt and finished samples at 67 ppt.