Source: The Intercept
Chemours has offered a novel argument in defense of one of its toxic PFAS chemicals, known as GenX: that the compound, which causes cancer and other health effects in lab animals and was released by the company into the drinking water of hundreds of thousands of people, is necessary for the fight against climate change.
Chemours, a chemical company that was spun off from DuPont in 2015, made the case for GenX as an environmental good in response to a toxicity assessment of the chemical that the Environmental Protection Agency finalized in October. The EPA document set a safety threshold for GenX based on studies showing that it causes liver effects in rats, including cancerous tumors. But in a March 18 request for correction, Chemours’ attorneys asked the agency to weaken its threshold, arguing that GenX is necessary for the country’s transition away from fossil fuels.
“Chemours’s chemistries are critical to achieving the United States’ energy transition and decarbonization ambitions,” attorneys from the firm Arnold & Porter wrote, going on to note that GenX is used in the process of creating compounds called fluoropolymers, which are used to make lithium-ion batteries used in electric cars, membranes used for water purification, and hydrogen from renewable sources.
The company, which makes GenX in its plant in Fayetteville, North Carolina, and uses the chemical at its facilities in New Jersey and West Virginia, also insisted that continued domestic production is important for U.S. energy independence: “There are often no domestically manufactured alternative replacement products available for these mission-critical applications.”
According to Chemours, which reported net sales of $6.3 billion last year, restrictions on GenX are not just a threat to the company’s bottom line. Noting that “fluoropolymers are used in every car, airplane, cellphone, as well as semiconductor and computer chips” and are also used in the production of “the vast majority of prescription drugs,” the company’s attorneys argued that the “EPA’s Toxicity Assessment, unless corrected, has the potential to cause significant harm to Chemours as well as to the broader United States economy.”
In recent years, as the climate crisis has escalated, fossil fuel companies have responded with a flurry of greenwashing, false pledges, and branded content that inaccurately absolves oil and gas from responsibility for climate change. Even in this context, Chemours’ attempt to position its toxic chemical as a solution to energy and water problems has struck some environmental advocates as remarkably cynical. They object to the company’s pitting of one environmental cause against another and scoff at the notion that GenX, one of a class of chemicals that has caused one of the most widespread and persistent pollution problems in recent history, is truly helping address the spiraling climate catastrophe.
“Chemours currently manufactures PFAS by using and releasing potent greenhouse gas chemicals such as HCFC-22. They are clearly part of the climate pollution problem, not the solution,” said Laurie Valeriano, executive director of the advocacy group Toxic-Free Future. “A clean energy future includes safer products made without emissions of potent greenhouse gases and hazardous chemicals.”
Veterans of the battle over PFAS contamination find the company’s claims about the environmental and economic benefits of GenX familiar. “This is the same kind of argument we’ve been hearing for several decades now,” said Rob Bilott, an attorney who sued DuPont over another toxic PFAS chemical, PFOA, in 1999. The company had used PFOA for decades to make Teflon and other products — and spent years defending it as an industrial necessity. DuPont only agreed to phase it out in 2006 after Bilott shared voluminous evidence with the EPA showing that exposure to the chemical led to cancers, liver damage, and immune effects — and only after the company had selected a substitute: GenX.
“It’s just remarkable to see how the spin continues, trying to implicate these chemicals with products that will resonate with consumers,” said Bilott. “They’re trying to create fear that by actually regulating these chemicals that present a public health threat, you’re going to force people to make choices about these products.”
“It’s just remarkable to see how the spin continues, trying to implicate these chemicals with products that will resonate with consumers.”
Bilott knows firsthand about such efforts to fend off regulation, having first discovered the documents showing that DuPont (along with 3M, which first created PFOA) had known about the environmental and health harms of PFOA for decades and had hidden the evidence from the public and regulators. The EPA fined DuPont $10.5 million over its deception — the biggest penalty in the agency’s history at the time. But the punishment came too late to protect health and the environment. By the time the fine was levied, PFOA had already contaminated the drinking water of some 80,000 people living near a DuPont plant in West Virginia. The exposure was later found to have caused a local increase of kidney and testicular cancer in the exposed population.
GenX emerged from complex negotiations between the EPA and DuPont over the phaseout of PFOA. While the environmental agency was slapping the chemical manufacturer on the hand for withholding evidence of the harms of that chemical, it also agreed to allow the company almost a decade to phase in its replacement. During the back-and-forth between the company and the agency in 2006, DuPont had insisted that the EPA give its substitute compound “timely review and approvals.” By then, the company already had evidence that GenX had some of the same effects as PFOA on lab animals. DuPont’s own studies, submitted to the EPA between 2006 and 2013, showed that the replacement chemical caused liver and kidney damage; developmental effects, including early deliveries and delays in genital development; immune suppression; and cancerous tumors in both the liver and pancreas, as The Intercept first reported in 2016.
Despite the alarming evidence of harm, the EPA went ahead with the timely approval of GenX as DuPont had requested, issuing a consent order in 2009 that acknowledged that the replacement chemical could present the same risks as PFOA — including cancer, systemic toxicity, and reproductive toxicity — while allowing DuPont and, after 2015, Chemours to make GenX at its North Carolina plant. In the following years, as the company was releasing its new product into the Cape Fear River and into the air through its stacks, DuPont was also quietly handing over additional research to the EPA that showed that the toxicity profile of its new chemical in fact did match that of its old one — and that in some cases, GenX was even more toxic than PFOA. The January 2022 toxicity assessment that drew on these studies set a safety threshold that was considerably lower than that of PFOA. The EPA says that it is currently reviewing the PFOA standard and plans to issue a drinking water health advisory for GenX based on the assessment this spring.
But as with PFOA, these regulatory steps, taken 16 years after DuPont submitted its first GenX study to the EPA, came too late to protect the public. Residents of the Wilmington, North Carolina, area have already spent decades drinking water laced with the compound, which was released into the Cape Fear River as a byproduct of other processes before DuPont began producing it in 2009. In 2019, as news of the contamination spread, Chemours entered into a consent order with the North Carolina Department of Environmental Quality and the environmental group Cape Fear River Watch, in which it agreed to provide replacement drinking water to residents whose water has been contaminated with GenX.
Escaping Financial Responsibility
As the company freely admitted in its March request for correction, a change to the safety threshold set in the EPA’s toxicity assessment could relieve the company of some of its legal obligations under that consent order. In the agreement, the level of GenX in drinking water that triggers Chemours’ responsibility to provide clean water “is subject to adjustment based on an ‘applicable EPA health advisory,’” as the lawyers note. “An EPA health advisory for [GenX] could therefore substantially affect Chemours’s obligations under the North Carolina Consent Order.” Because the new level set by the EPA is more protective than the one set by North Carolina, Chemours could face additional financial obligations in North Carolina if its petition fails. If it succeeds, the company could wind up spending less, since it would be responsible for providing fewer people with clean water.
Even if the EPA denies Chemours’ request for correction, drinkers of the contaminated water are already being forced to pick up hundreds of millions of dollars in costs to purify it. Brunswick is one of two counties in North Carolina that recently increased water rates to cover the cost of new systems installed to filter out PFAS. “Brunswick County is a poor, rural county, and people there are now paying to put in a reverse osmosis plant for their water treatment to PFAS specifically because Chemours won’t,” said Johnsie Lang, a scientist who has studied GenX. Lang, who lives in the county, saw her own monthly water bill rise from $130 to $180 in March.
The request for correction comes at a time when Chemours is facing increasing costs in North Carolina. The consent order requires the company to provide clean water to households whose water is contaminated above a certain level. “But they had no idea how big their plume was. At first, it looked like there would probably be like 100 or less houses,” said Lang. But more than 6,000 now qualify. “And the number is still growing. I think they thought they were done, that they spent the money they wanted to spend.”
Chemours paid over $100 million for technology that reduces air emissions of GenX by 99.99 percent, as the consent order required. But the company has also been fined by the state Department of Environmental Quality for at least 16 violations of the consent order and related regulations, including exceeding the air emissions limit, disposing of waste improperly, and releasing more PFAS into water than allowed. And while the amount of GenX released from the North Carolina plant has clearly been reduced, shorter-chain PFAS have been found in water around the state — including on beaches and in home gutters, some as far as 80 miles from the plant.
And while GenX has become the focus of Chemours’ anti-regulatory efforts, it is only one of the chemicals the company emits. Chemours has identified more than 250 “unknown” PFAS compounds in its wastewater. “They’re talking about GenX right now because it’s the only one where [the North Carolina Department of Health and Human Services] set a value,” said Lang. “What about all the other compounds?”
Testicular and Liver Cancer
It is not unusual for companies to challenge EPA science that threatens to reduce profits. Nor is it uncommon for such companies to offer a range of criticisms in the hope that at least one might prevail. In the case of GenX, Chemours has argued not only that the chemical is essential to halt the climate crisis, but also that the science used to calculate the safety threshold is flawed. In the request for correction, the company’s lawyers claimed that the EPA failed to consider epidemiological data released by the North Carolina Department of Health and Human Services in 2017 and that “NCDHHS concluded that rates of liver and other cancers are generally lower in North Carolina counties with exposures to [GenX] the rates reported in the U.S. general population, in the state of North Carolina, and in North Carolina counties without alleged exposure to [GenX].”
Asked to confirm this finding, a North Carolina health agency representative said that Chemours’ interpretation of its data was not accurate. “NCDHHS did not conclude that rates of liver and other cancers are generally lower in North Carolina counties with exposures to [GenX] than the rates reported in the U.S. general population, in the state of North Carolina, or in North Carolina counties without alleged exposure” to GenX, Catie Armstrong, a spokesperson for the department, wrote in an email to The Intercept. Armstrong also noted that while overall cancer rates in the four counties studied were similar, in New Hanover County rates of testicular cancer were elevated over a 20-year period and rates of liver cancer were higher over a five-year period. The cancer rates collected by the health department are descriptive, Armstrong said, and “only a comprehensive research study can provide information about whether a specific exposure might be associated with increased rates of cancer.”
For local advocates have who been asking for such a detailed epidemiological study of people who drank contaminated water in the area, most explicitly in a petition local environmental groups submitted to the EPA in October 2020, the company’s misinterpretation of incomplete data is particularly galling. “One of the big pushes in our petition is for a comprehensive epidemiological study for people in that portion of North Carolina,” said Bob Sussman, an attorney representing the environmental groups that submitted the petition, which also demands health and environmental studies of 54 PFAS compounds that Chemours emitted in the area. “Chemours’ misrepresentation of a study that in fact shows increases in liver tumors in PFAS-impacted areas is disturbing and of a piece with the company’s resistance to conducting the research requested in the petition.”
Another Chemours strategy that is vexing for clean water advocates is its argument that the EPA is incorrectly applying “uncertainty factors” in its calculation of the safety standard for GenX. The agency uses the numbers, which make safety thresholds more protective, to compensate for gaps in knowledge about the effects of chemicals. Chemours says that the EPA has inappropriately inflated the uncertainty factors, resulting in a threshold that’s too low. But Sussman pointed out that the agency used the factors because the company didn’t provide studies that show definitively how the chemical affects people.
“In our petition, we say that we need all this additional testing on GenX. And here’s Chemours coming in and not even addressing the central point — that we don’t have the data we need,” said Sussman. “What I would say to Chemours is, if you don’t like these uncertainty factors, then you better go out and do some testing.”
Environmental scientists agree with Chemours on at least one point: that GenX is now used to make fluoropolymers that wind up in a wide range of products, including, as the company’s attorneys pointed out to the EPA, computer chips, light-weight vehicles, and “piping and vessels to protect employees from harsh chemicals.” Such economic facts are irrelevant to the science about the chemical — and have no place in a toxicity assessment, according to Linda Birnbaum, who directed the National Institute of Environmental Health Sciences and served as the country’s chief toxicologist until 2019. Still, said Birnbaum, “the issue that they raised — that PFAS are everywhere — that’s absolutely true. The point is that it’s a bad thing.”
The thornier question is how to make those products without using such dangerous chemicals. Some manufacturers have already begun to create fluoropolymers without PFAS — one did so back in 2008. Still, a full transition away from GenX will take time, according to Mark Rossi, executive director of Clean Production Action. “If it’s currently necessary in the moment, I would say it’s not necessary in the long run,” said Rossi. “If you said, from today, you have to be out of all PFAS in manufacturing in five to 10 years, I’d say that’s a reasonable timeline.”
“The issue that they raised — that PFAS are everywhere — that’s absolutely true. The point is that it’s a bad thing.”
While the nonessential uses of PFAS could easily be immediately stopped, the gradual phaseout from more critical products will take both commitment and investment as well as time, according to Zhanyun Wang. “Nonfluorinated alternatives exist, but they require innovation,” said Wang, a scientist at the Swiss Federal Laboratories for Materials Science and Technology, known as EMPA. “Until you train the next generation of scientists, they always follow the same chemistry.”
The public has frustratingly little say over whether the production of our cellphones, cars, and allergy medicines involves the contamination of the environment. “The companies always say that they are customer-driven,” said Wang. “But if you think about it, it’s actually the companies deciding for us.”
Climate activists refer to the phenomenon of a polluting industry doubling down on nonsustainable practices that are profitable in the short term — and catastrophic in the long term — as “lock-in.” Ironically, with its challenge to the EPA, Chemours is using the promise of helping fight the lock-in of fossil fuels to justify further locking in the use of PFAS, arguing that its own environmental contaminants are essential and immutable.
Chemours declined to answer a question about the relevance of the economic arguments to the toxicity assessment. Instead, it provided The Intercept with an emailed statement that said, in part, “We support science-based regulation that is protective of public health and the environment, and we are committed to manufacturing our advanced chemistries responsibly — including by working to achieve our ambitious corporate responsibility goals.”
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