Federal prosecutors who convened a grand jury will not press criminal charges against a chemical company that discharged toxic waste into the Cape Fear River and prompted a flurry of responses, including a local decision to spend tens of millions of dollars to better filter drinking water in Brunswick County.

Chemours, a Fayetteville-based spinoff of the DuPont company, discharged GenX and other PFAS-type chemicals into the river, air and groundwater for years. The discharges are the subject of investigations by local, state and federal regulators, as well as regional utilities that rely on river for drinking water and the protection of natural resources, including marine life.

Travis Fain of WRAL-TV5 first reported that federal prosecutors declined to press criminal charges against the company. There were no press releases; Chemours revealed the news in its 10-Q form required by the U.S. Securities and Exchange Commission, submitted on or about May 1.

Chemours formally alerted shareholders about the state’s notice of violations (NOV) and the perceived ramifications of legal actions in the 10-Q.

“The company responded to grand jury subpoenas, produced witnesses before a grand jury and for interviews with government investigators and attorneys, and met with the U.S. Attorney’s Office for the Eastern District of North Carolina and the Environmental Natural Resources Division of the U.S. Department of Justice regarding their investigation into a potential violation of the CWA (Clean Water Act). In March 2020, the U.S. Attorney notified the company that, after an extensive review of the law and all the facts, it declined to pursue any criminal action against Chemours and is closing its file. “An NOV was received from the EPA in February 2019 alleging certain … violations at Fayetteville. Matters raised in the NOV could have the potential to affect operations at Fayetteville. The Company responded to the EPA in March 2019, asserting that the Company has not violated environmental laws. As of March 31, 2020, management does not believe that a loss is probable.”

In its 74-page statement to shareholders, Chemours discussed a litany of pollution issues. The Cape Fear River and PFAS potential violations are expected to cost $196-million in remediation costs for the current fiscal year, the company stated.

Reaction

The fact that criminal charges won’t be sought at the federal level has not reduced concern about GenX and related chemical issues for people drinking the water in Brunswick County.

“We are aware of the grand jury’s decision not to pursue criminal charges against Chemours, but this decision does not affect the county’s ongoing civil litigation to hold Chemours accountable for its actions in contaminating the county’s source of drinking water,” said Frank Williams, chairman of the Brunswick County Board of Commissioners.

“Brunswick County continues to stress the need for our federal and state partners to hold contaminators responsible for polluting drinking water sources and the environment, as well as to conduct and/or encourage the necessary research and investigation into the effects of these currently unregulated compounds for the benefit of our state and nation,” Williams continued. “Brunswick County will focus its efforts and attention on the litigation it has filed with other utilities in the region to sue DuPont and Chemours to stop polluting our water supply and is seeking to recover damages from Chemours for the expenses the County has had to incur as a result of the contaminants they put in the water.”

Other local officials are not ready to let the issue go.

“It’s unbelievable,” said Oak Island Town Council Member Loman Scott. “The people deserve an explanation from the U.S. Attorney’s Office.” He said that people “drinking this poison” deserve more than a passing notice to shareholders.

The larger environment

Pete Key, of Brunswick Environmental Action Team (BEAT), said the company needs to be held accountable.

“BEAT is deeply disappointed that the federal government has let the clear and present evidence of misdirection and criminal negligence, by both DuPont and Chemours, go unaccounted for,” he stated. “Private individuals in this country cannot expect to be treated with equal kid gloves as corporate polluters do. Chemours, knowingly and forever, tainted the water supply of the southeastern portion of North Carolina and generations to come will continue to suffer from their intentional negligence. BEAT feels the federal government is now complicit in these acts by allowing a criminally aggressive polluter off the hook with such a clear trail of malfeasance and deception.

“North Carolina deserves better. We should be able to depend on the government for protection from corporations that harm the right of citizens to enjoy clean air, water and soil,” Key stated. “Instead, they have set a precedent that, while making billions in profits over the years while poisoning our waters, there will be no accountability for criminal corporate pollution of the water supply for millions of North Carolinians.”

Local government response

Brunswick County, in a prepared statement, offered a response for moving forward. 

“The county is focusing and moving forward on its project to install a low-pressure reverse osmosis system at the Northwest Water Treatment Plant to remove PFAS compounds like GenX from water sourced from the Cape Fear River. The Brunswick County Board of Commissioners approved two major items at the May 18 meeting to award bids related to the construction of this new treatment system and to expand the water capacity at the plant to support our county’s residential, commercial and industrial growth.

“This project will ensure the county has the best treatment system available to remove these unregulated compounds from our water supply and remain below any health advisories established in the future should federal and state officials conduct the necessary research to answer these important questions.”