TOXIC SUBSTANCE CONTROL ACT (TSCA)

Under TSCA section 4, EPA can issue test orders or rules requiring manufacturers to conduct health and environmental effects studies on their chemicals. This authority was included in the law because Congress recognized that inadequate data are available on most chemicals and that the responsibility for developing information on chemical safety should rest with the companies who put these chemicals in commerce and cause people and the environment to be exposed to the risk of harm. TSCA sets a low bar for requiring testing. EPA need only show that there is a basis for concern about the harmful effects of the chemical, that exposure may be occurring and that insufficient data are available to determine whether the chemical presents an unreasonable risk.

Under Section 21 of TSCA members of the public can formally submit a petition to the EPA to take action under several provisions of the law. This includes asking EPA to issue testing rules and orders under section 4. EPA must respond to petitions within 90 days and petitioners can take EPA to court if it denies the petition or fails to act.

We partnered with the Center for Environmental Health, Cape Fear River Watch, and Toxic Free NC to encourage the EPA to use its full authority under TSCA to require Chemours pay for an independent comprehensive research program on 54 PFAS found in residents air, soil, water, food supply, and blood.

About Our TSCA Lawsuit

Our coalition launches a public awareness campaign called “Cape Fear Courage” with the release of a short film by Emmy award-winning filmmakers Peak Plastic Foundation.

Watch our video.

Sign our letter to President Biden.

While residents continue to lose friends and family due to rare forms of cancer, and drinking water fountains at schools remain contaminated, Chemours seeks to expand its operations, and the EPA refuses to use its authority under the Toxic Substances Control Act (TSCA) to hold a known polluter accountable.

This is environmental injustice in action - and it has to stop.

AUGUST 2023: The Center for Environmental Health, Clean Cape Fear, Cape Fear River Watch, and Toxic Free NC filed an opening brief with the Fourth Circuit Court of Appeals seeking to reverse the March 31, 2023 ruling of Trump appointed District Judge Richard E. Meyers II dismissing their case against EPA. Read our join press statement here. Here’s Clean Cape Fear’s official statement:

“There are children in our community burying their parents,” said Emily Donovan, co-founder of Clean Cape Fear. “We deserve to know if exposures from Chemours’ PFAS caused these untimely deaths and how to provide preventative care and medical monitoring moving forward.”

MARCH 2023: Judge Myers dismisses our lawsuit by choosing to take a narrow view of our petition as one single petition instead of multiple petitions within one single document. Here’s Clean Cape Fear’s official statement:

“By dismissing our lawsuit, Trump-appointed Judge Myers has created a dangerous precedent for future EPA administrations to publicly grant citizen TSCA petitions while internally failing to do the work requested. We are considering an appeal to this disappointing decision that serves no one but the chemical companies who continue to hold hostage our regulatory institutions at the expense of our health and wellbeing.”

JANUARY 2023: Judge Myers decides to hold an in-person hearing regarding the EPA’s motion to dismiss our lawsuit. The hearing is scheduled for Tuesday, February 14, 2023 at 10:00 am in Wilmington, NC.

JUNE 2022: Immediately after the EPA was granted their motion to transfer our case to North Carolina, the EPA filed a motion to dismiss our case. The EPA claimed courts can only address petitions that were formally rejected, and lack authority under TSCA to review responses that were granted. Read our joint press release and Clean Cape Fear’s official statement regarding the motion to dismiss:

“The EPA’s request to dismiss our case is a slap in the face to the 500,000 residents in southeastern North Carolina who are chronically drinking levels of PFAS in our tap water exceeding EPA’s Lifetime Health Advisory Limits,” said Emily Donovan, Co-Founder, Clean Cape Fear. “We don’t want to sue the EPA, but we raised our children on this water and deserve access to the information these health studies would provide.”

MARCH 2022: The EPA filed a motion to transfer our case from the Northern District of California to the Easter District of North Carolina. Read our opposition statement. The courts granted EPA’s motion to transfer and our case was moved to NC where it was assigned to Chief Judge Richard E. Myers II located in Wilmington, NC. Read our joint press release.

JANUARY 2022: Our coalition decided to pursue litigation against the EPA. We filed an amended complaint with the court. In paragraph 83 of page 22 our legal team summarizes all the testing we originally requested in our petition that the EPA DID NOT require in their petition response. Read our joint press release.

 

About Our TSCA Petition

In October 2020, we formed a coalition with North Carolina community and environmental justice groups to submit a petition to the Environmental Protection Agency (EPA) demanding that it take long overdue action to address Per- and Polyfluoroalkyl Substances (PFAS) pollution in North Carolina’s Lower Cape Fear River basin. The petition asked the EPA to use its authority under the Toxic Substances Control Act (TSCA) to require Chemours to fund comprehensive health and environmental testing on PFAS manufactured at its production facility in Fayetteville. Chemours is a spinoff of Dupont, a company with a legacy of contaminating communities with dangerous PFAS.

CHEMOURS RESPONSE: Chemours requests the U.S. EPA deny our TSCA petition. Read the full letter filed by Chemours to the EPA.

JANUARY 2021: The Trump EPA denies our TSCA petition. Read the full denial letter issued by EPA Assistant Administrator Alexandra Dunn.

MARCH 2021: Our coalition asks the Biden EPA to reverse Trump’s denial of our TSCA petition. Read our joint press release.

DECEMBER 2021: The Biden EPA responds to our TSCA petition by publicly granting it. However, after reviewing the the EPA’s response we realized they only granted approximately 3% of the tests we requested. EPA’s petition response did not announce any new studies on the 54 PFAS. It said it would require limited testing on 7 of the 54 PFAS, but this testing had previously been announced in October under EPA’s general PFAS testing strategy. In declining to require testing on additional PFAS produced by Chemours, EPA claimed it could determine their health effects by extrapolating from studies it plans to require on 24 “representative” substances under its testing strategy. This highly theoretical and unproven approach, which is based on complex computational models, rejects the recommendations of petitioners, local governments, more than 120 public health organizations, and dozens of leading scientists that EPA should focus testing on those PFAS that directly threaten human health.

Simply put, EPA has had over a year to review the many letters and submissions of petitioners explaining the concerns of North Carolina communities but has completely missed the entire purpose of the petition–to address the public health needs of a severely contaminated community. Instead, the EPA asserts it is “granting” the petition but in fact is deferring action on petitioners’ testing requests indefinitely. 

EPA refused to commit to requiring the studies that are most important in understanding the human health effects of long-term PFAS contamination on North Carolina communities. In fact, EPA provided no assurance that it would require cancer studies on any PFAS; refused to require an epidemiological study on the exposed human population; and declined to require testing of any of the mixtures of PFAS found in drinking water and human blood. 

The facts.

Here’s a graphical representation of all the Chemours-specific PFAS health studies we requested vs. what the EPA actually granted. This is why we decided to sue the EPA.

 
 

LAWSUITS

  • August 29, 2018: Cape Fear River Watch files federal lawsuit for violations to Clean Water Act and Toxic Substance Control Act.

  • July 13, 2018: Cape Fear River Watch & SELC file an administrative lawsuit against NC DEQ to force Chemours immediately stop all discharges of PFAS chemicals into the environment.

  • February 21, 2018: 70 well owners filed lawsuit

  • January 31, 2018: Class action plaintiffs: Consolidated class action lawsuit filed by Cohen Milstein Sellers & Toll PLLC and Susman Godfrey, Interim Co-Lead Class Counsel

  • Oct. 3, 2017: New Hanover County resident Brent Nix files Class Action lawsuit on behalf of all other similarly situated (CONSOLIDATED INTO JAN 31 FILING)

  • Oct. 16, 2017: CFPUA files lawsuit against Chemours (60 days notice given August 3, 2017) (CONSOLIDATED wITH BRUNSWICK COUNTY SUIT)

  • Oct. 20, 2017: Brunswick County resident Roger Morton files Class Action lawsuit on behalf of all others similarly situated (CONSOLIDATED INTO JAN 31 FILING)

  • Oct. 23, 2017: Leland resident Victoria Carey files Class Action lawsuit on behalf of all others similarly situated after testing her water heater and finding high levels of GenX (CONSOLIDATED INTO JAN 31 FILING)

  • Oct. 31, 2017: Brunswick County announces it has filed lawsuit suit against Chemours (CONSOLIDATED WITH CFPUA SUIT)

  • Letters of Intent to Sue:

 

CONSENT ORDER

Cape Fear River Watch, NC Department of Environmental Quality, and Chemours entered into a legal agreement via the 2019 consent order. It’s important to remember it took lawyer, Rob Bilott, nearly 20 years to expose DuPont and the toxic effects of one single PFAS chemical: PFOA.

NC DEQ: For the latest documents related to the Chemours consent order click here.

Cape Fear River Watch: For the latest information and FAQs related to the Chemours consent order click here.

Chemours: For the latest compliance data related to the Chemours consent order click here.

  • February 26, 2019: Bladen Superior Court judge signs consent order.

    Per Southern Environmental Law Center the signed consent order requires Chemours to additionally:

    • Gives downstream public water utilities a seat at the table to determine how Chemours can immediately reduce its pollution in the Cape Fear River.

    • Requires Chemours to study the extent of its sediment pollution in the Cape Fear River.

  • February 20, 2019: NC DEQ reviews and responds to public comments and releases a revised proposed consent order.

  • January 7, 2019: Public comment period ends on draft consent order.

  • November 28, 2018: Cape Fear River Watch, NC DEQ, and Chemours settle their lawsuits and release a draft consent order. Chemours is required to pay $12 million fine—the largest fine ever collected by NC DEQ.

    Per Southern Environmental Law Center the proposed consent order requires Chemours to:

    • Clean up its pollution, in the short-term and long-term.

    • Provide clean drinking water to North Carolinians with contaminated wells.

    • Fund health studies of at least five of its chemicals.

    • Take specific actions to keep the public and public utilities informed of potential issues with the facility

    • Pay the largest fine ever levied by the N.C. Department of Environmental Quality.


REGULATORY ACTIONS BY DEQ / STATE: 

NOTE: 60-day notices are required to sue under the Clean Water Act; 90-day notices are required to sue under Resource Conservation & Recovery Act

DEQ publishes their enforcement actions and communications with Chemours online HERE

STATE LAWS THAT SHOULD BE AMENDED/REPEALED

The below information is attributable to the Southern Environmental Law Center - Letter to Senators, Jan. 30, 2018

  • REGARDING AIR EMISSIONS: G.S. 143-213(9) which was established in 2012 by the N.C.G.A. in S.L. 2012-187 must be removed from statute. It excludes "emission[s]" from the definition of "discharge" meaning DEQ has no authority to regulate air emissions that have deposited to water

  • REGARDING SETTING A REGULATORY STANDARD: The Hardison Amendment G.S. 150B-19.3:) must be repealed - not only for this issue but all environmental issues affecting our state. It prohibits agencies authorized to implement and enforce state and federal environmental laws from adopting regulations for the protection of water quality, the environment, or natural resources that impose a more restrictive standard, limitation, or requirement than those imposed by federal law.

  • REGARDING PERMITS:

    • Currently, DEQ cannot include in the wastewater discharge permit any toxic substance for which the EPA or State has not set a health or effluent standard. Legislature must amend G.S. 143-215.1(a) (Activities for Which Permits Required) to prohibit permitted facilities from discharging any toxic substances, as defined by 15A N.C. Admin. Code 2B .0202(64), for which there is no federal or state standard set. If a chemical does have a health or effluent standard, or a consent order entered by the EPA under the Toxic Substances Control Act (“TSCA”), then the applicant must comply with whichever is most stringent.

    • Amend G.S. 143-215.1 to require automatic permit suspension if a company is found to be discharging any pollutant not authorized by its permit; and not disclosed in its permit application.

  • REGARDING RESPONSIBILITY AND ACCOUNTABILITY: Amend G.S. 143-215.1 to require that companies in violation of discharge permits must provide and maintain the necessary filtration equipment to municipalities affected for as long as contamination persists in the environment, and that the company is financially responsible for removing pollution from drinking water sources so that this burden does not fall to North Carolina’s taxpayers.

OTHER LEGAL DOCUMENTS & HISTORY

CONSENT ORDER ALLOWING PRODUCTION OF GENX WITH 99% WASTEWATER CAPTURE

CHEMOURS RESPONSE TO DEQ LEGAL ACTIONS: 

CHEMOURS PERMITS:

FILINGS BY DUPONT/CHEMOURS REQUIRED BY TOXIC SUBSTANCES CONTROL ACT:

  • Industry is required to file reports to EPA if they find "unreasonable risk to health or to the environment" in unregulated contaminants; Here are DuPont/Chemours filings: https://adobe.ly/2xFbn6X

HOUSE SELECT COMMITTEE MEETINGS ON NC RIVER WATER QUALITY PRESENTATIONS::

  • OVERVIEW FROM ALL DEQ DEPARTMENTS WORKING ON THIS (AIR, WATER, WASTE) & BREAKDOWN OF STAFF ASSIGNED TO IT & GRAPH OF PERMIT BACKLOG: PRESENTED BY DEQ AT HOUSE SELECT COMMITTEE NOV. 2017: HERE

  • Link to presentations for all meetings found HERE

FEDERAL LAWS RELATING TO UNREGULATED and EMERGING CONTAMINANTS:

DHHS RISK Assessments:

DEQ GenX Investigation

CFPUA: