North Carolina PFAS fight tests Regan’s environmental justice promises

BY: ANNIE SNIDER | 02/27/2023 05:00 AM EST

EPA Administrator Michael Regan’s fight with community groups in North Carolina over their bid to get information about the chemicals contaminating their water, air and blood is raising questions about his signature commitment to focus the agency’s work on the people most overburdened by pollution.

Regan has promised his agency’s efforts on the PFAS “forever chemicals” that are fouling drinking water will be driven by the communities — especially disadvantaged ones — bearing the brunt of the pollution. But he has already fallen behind schedule on his vow to swiftly regulate PFAS in drinking water and force polluters to foot the bill for cleanups, and patience among activists and lawmakers is beginning to wear thin, particularly in his home state of North Carolina

“At any point, Regan could step in here and say, ‘Look, these are my people in North Carolina, I want them to be treated well,’ but he’s never done that,” said Bob Sussman, the former No. 2 at EPA during the Clinton administration who is representing groups in the state that have sued EPA. “He’s never done that, even though he’s made speeches saying he has the backs of the community.”

Cities and towns along a 70-mile stretch of the Cape Fear River running from Fayetteville to the coastal city of Wilmington face some of the most extreme PFAS pollution in the country. For four decades, chemical manufacturer Chemours dumped the compounds known as PFAS from its sprawling Fayetteville plant directly into the waterway — the drinking water supply for 300,000 people — and sent them up its smokestacks, from which the chemicals later ended up in the soil, food and nearby drinking water wells.

Certain PFAS have been linked with cancer, reproductive problems and a host of other harms, but very little is known about many of the specific chemicals contaminating eastern North Carolina.

Groups representing the community have asked Regan to use EPA’s authorities to require Chemours to conduct testing on 54 chemicals that have been found in their blood, water, air and soil — a request Regan’s EPA overwhelmingly rebuffed.

EPA spokesperson Khanya Brann said the agency “shares the petitioners’ concerns regarding the potential risks posed by PFAS and the need for more data to better understand and address these risks in communities all across America.” She argued that the agency’s national strategy for testing PFAS will allow the agency to tackle the chemicals more swiftly, but declined to answer specific questions about its handling of the North Carolina request, citing active litigation.

There is little dispute that the contamination facing communities along the Cape Fear River is extreme. Researchers have found that, in the years before the contamination was uncovered, levels of just one of the chemicals in the drinking water were 78 times higher than what EPA now says is safe for it. Total amounts of PFAS in the river near Wilmington’s drinking water intake were found to have reached as high as 130,000 parts per trillion — astounding concentrations given that EPA has found levels of some PFAS to be dangerous at a fraction of 1 part per trillion.

But most of those chemicals are a scientific mystery.

“On a great majority of those [chemicals] there is zero information. I mean zero — no [toxicity] data, no in vitro data, no high-throughput data, no animal data,” said Linda Birnbaum, who previously led the National Institutes of Environmental Health and worked with North Carolina on their petition to EPA.

Congress in 2016 gave EPA broad authority to require manufacturers to conduct testing on any chemical that may present an unreasonable risk to human health or the environment — authority the communities asked EPA to use to order Chemours to test for the 54 individual compounds, as well as on mixtures of the the chemicals that have been found in residents’ blood and water. They also asked for a study that would follow the health of the community over a number of years in search of unusual concentrations of illnesses — the type of research that public health experts say is crucial to understanding the contamination’s impact, but that could also become powerful evidence for residents seeking to hold Chemours responsible in court for their health ailments.

Notably, the law requires that companies — not taxpayers — pay for that testing. That’s a key point for the communities that are currently footing the bill for a $43 million upgrade to their local drinking water plant to filter Chemours’ PFAS pollution out of their taps.

Chemours declined to comment on the request for testing.

“We’re losing friends and loved ones and neighbors, so access to this health information is critical for us, so our doctors can be better informed for how to treat us,” said Emily Donovan, founder of the nonprofit group Clean Cape Fear, one of the groups petitioning EPA.

Regan’s EPA has said it will require testing for just seven of those chemicals, and refused the request for research on mixtures and an epidemiological study, which EPA said would be overly complex and time-consuming to design.

Instead, the agency has opted to take on the enormous class of roughly 12,000 chemicals using a testing strategy that chemicals experts describe as “academic.” It focuses on collecting information on a handful of selected chemicals that it has concluded are most representative of thousands of others that have a similar molecular structure. Officials argue that this approach will allow them to evaluate and regulate a larger number of chemicals more quickly.

“There are hundreds of PFAS in commerce that have limited or no toxicity data. If EPA attempts to research them one at a time, it will be impossible for EPA, states, or communities to expeditiously understand, let alone address, the risks these substances may pose to human health and the environment,” EPA chemicals chief Michal Freedhoff wrote in her response to the groups’ petition.

She argued that the agency’s approach to breaking the thousands of chemicals down into categories and requiring testing on just a handful of chemicals within each category “will be a strategic and effective use of limited resources.”

Environmental and public health groups had in fact urged EPA to use a category approach, and many initially welcomed EPA’s testing strategy.

The problem, critics say, is that it doesn’t differentiate the chemicals that communities are known to have been exposed to at worrying levels from those with no known human exposures when deciding which ones to select for testing. Nor does it accelerate testing for the chemicals of greatest concern to hot-spot communities.

“The strategy is unlikely to provide information on those PFAS with the greatest potential to harm exposed populations,” a group of 48 scientific experts including Birnbaum and three current or former EPA PFAS experts wrote Regan after the strategy was unveiled.

They urged Regan to “redirect” the agency’s testing strategy to focus on research that could benefit communities, health researchers and medical professionals most, arguing that such data would also be the most useful to regulatory decision-making as well.

The EPA spokesperson said that, “as EPA continues to refine the Testing Strategy, the Agency plans to increase its focus on exposure concerns as a basis for identifying PFAS for which to impose testing requirements.”

Outside experts say there’s no reason EPA couldn’t require at least some of the testing the North Carolina groups are seeking now while at the same time pursuing its preferred approach to testing.

“I think there certainly was a middle ground that could have gotten a lot of what the communities had asked for, even taking into account the resource limitations that EPA has,” said Maria Doa, senior director of chemicals policy at the Environmental Defense Fund and a former top toxics expert at EPA. Doa is not involved with the petition.

The communities have taken EPA to court but even Sussman, their lawyer, acknowledges they face long odds. The judge is a conservative Trump appointee, he said, and the fact that EPA deemed its response to be a “granting” of his clients’ petition, despite agreeing to only a fraction of the testing communities wanted, complicates the groups’ case.

At a court hearing earlier this month, EPA’s lawyers urged the court to dismiss the case.

But even if Regan wins in court, he could still lose public opinion at a time when the 46-year-old EPA leader is seen as a rising star in the Democratic party and has been rumored in recent weeks to be mulling a run for governor of the Tar Heel state. The southeastern communities that bore the brunt of Chemours’ contamination are some of the most purple in the state.

The only declared Democrat in the gubernatorial race so far is the state’s attorney general, Josh Stein, who has staked out an aggressive stance on the PFAS, filing multiple lawsuits against Chemours and other chemicals manufacturers.

Regan made a swing through North Carolina the day before the court hearing earlier this month — but not to the Cape Fear River region. Instead, he traveled to Maysville, N.C., a city just over an hour away from Wilmington that is unaffected by the Chemours contamination, to announce a series of grants related to PFAS.

Crystal Cavalier, policy director for Toxic Free NC, one of the groups that petitioned EPA to require testing, said Regan’s visit felt like a deliberate effort to draw attention away from the court battle and a press conference activists held after the hearing.

“He was here, he could have came down,” she said.

In response to questions about the event, EPA’s Brann said Chemours is not the only source of contamination in the state and noted that the agency’s top water official last year visited the Cape Fear region last year.

Cavalier, who is Native American, said she has become cynical about Regan’s environmental justice promises. If he makes a state-wide political run, she said, he has lost her vote.

“I feel that it’s just superficial. I don’t feel that he really cares,” she said. “I think he just got in those right places to help his career look great and he started grooming himself for a political career.”