by Kate Silver
On June 8th, 2017, the Star News, Wilmington, North Carolina’s leading news source, published an article reporting that the primary drinking water source, the Cape Fear River, was tainted with high levels of a toxic chemical called GenX[1]. I was entering my sophomore year of high school when I first learned about this, and it was all my friends could talk about the entire summer: Were we going to be okay? How long have we been drinking this water? Do we need to switch to bottled water? How could this have happened? Nearly 6 years later, many of these questions remain unanswered, and new policies that hold polluters accountable for their actions must be implemented to ensure the health and safety of those in the lower Cape Fear region. The European Union enacted Article 191 TFEU, a law that declares “environmental damage should as a priority be rectified at source and that the polluter should pay”[2]. I propose that Congress pass a similar law to this that requires polluters to pay for all externalities and firmly defines what constitutes as such.
GenX is a chemical byproduct that is produced during the manufacturing of non-stick products such as Teflon[3]. It is part of a larger family of chemicals called per- and polyfluoroalkyl substances (PFAS), which have been developed since the early 1950s[4]. PFAS are highly persistent in the environment and have been dubbed “forever chemicals” due to their strong Carbon-Fluorine bonds and stable molecular structure[5]. Due to their inability to break down in the environment, GenX and other PFAS are suspected to cause liver damage, cancer, thyroid disease, decreased fertility, and more negative health complications in humans4. The company responsible for the dumping of GenX into the Cape Fear River is called Chemours Co. and is located about 100 miles upstream from Wilmington, NC1. Chemours Co., which is a spin-off of a larger chemical company called Dupont, has produced GenX since 2009, however it’s reported that Chemours/Dupont has been dumping GenX into the Cape Fear River since the 1980s[6]. GenX was originally developed as a “safer” alternative to perfluorooctanoic acid, better known as C81. But what was supposed to be a healthier, more eco-friendly alternative quickly turned into a “regrettable substitute”[7].
Since June 8th, 2017, the following actions have taken place to mitigate the impacts of GenX in the Cape Fear River:
2018: The Cape Fear River Watch sues Chemours and the North Carolina Department of Environmental Quality[8]
2019: A consent order is finalized that “requires Chemours to address PFAS sources and contamination at the facility to prevent further impacts to air, soil, groundwater and surface waters”[9]
2022: The U.S. EPA issues new health advisories for GenX and other PFAS[10]. The Cape Fear Public Utility Authority (CFPUA) also reports that its new $43 million filtration system successfully removes PFAS chemicals from the drinking water supply6. CFPUA customers saw an 8.5% increase in their water bills and are told to expect future rate increases as the filtration system continues to operate6.
2023: A preliminary study shows that 1 in 5 wells downstream of Chemours Co. tested positive for high levels of GenX and other PFAS contamination[11].
While some strides have been made to ensure safe drinking water for North Carolinians, the damage caused by Chemours Co. is irreparable since GenX does not break down in the environment, and the company needs to be held accountable for its devastating actions6. An addendum to the consent order passed in August 2020 ordered Chemours Co. to cease dumping more than 90 percent of the PFAS entering the Cape Fear River8. The consent order may have halted the continued addition of PFAS to the Cape Fear River, but this does not adequately hold Chemours Co. accountable for the decades of PFAS that will persist in the Cape Fear River for hundreds of years to come. Furthermore, the EPA recently proposed new standards for the concentration of GenX and five other prominent PFAS in U.S. waterways[12]. However, there are still thousands of unregulated, toxic PFAS circulating throughout the country posing a dangerous threat to human health12.
It is egregious that Wilmington residents must endure an 8.5% rate raise from the CFPUA because of Chemours mistakes6. Policy must be enacted that requires polluters to pay 100% of the initial and continued operating costs of water filtration systems that are constructed due to their own pollution.
The Polluter Pays Principle is an economic principle that requires the party responsible for generating pollution to cover the damages inflicted by their actions[13]. However, this fundamental moral of environmental law is often poorly enforced due to the nature of a market-based economy[14]. The European Union has had slightly greater success enforcing the Polluter Pays Principle by ratifying Article 191 of The Treaty On The Functioning of The European Union (TFEU)[15], but it is often inconsistently applied throughout the European Union[16].
We should improve upon and solidify the Polluter Pays Principle by enacting a law similar to Article 191 TFEU, and create a standardized method of measuring negative externalities inflicted by corporations. The European Union proposed conducting a fitness check to “identify where the principle is well applied and where there is scope for further implementation” in order to learn how to better implement the policy15. With a firm law like this in place, Chemours Co. would be forced to pay for the new CFPUA filtration system, and taxpayers would not have to suffer high water prices as a result of Chemour’s negligence. Chemours Co. would also be held accountable for the tainted well water systems on residential properties and be required to pay for the damages caused.
[1] Hagerty, Vaughn. “Toxin taints CFPUA drinking water.” Wilmington Star-News, 7 June 2017, https://www.starnewsonline.com/story/news/environment/2017/06/07/toxin-taints-cfpua-drinking-water/20684831007/. Accessed 5 March 2023.
[2] “Consolidated Version of the Treaty on the Functioning of the European Union.” Legislation.gov.uk, Queen’s Printer of Acts of Parliament, 3 Jan. 2020, https://www.legislation.gov.uk/eut/teec/article/191#:~:text=Article%20191(ex%20Article%20174%20TEC)&text=protecting%20human%20health%2C,in%20particular%20combating%20climate%20change.
[3] NCDHHS: Division of Public Health. “NCDHHS: DPH: Epidemiology: OEE: GenX and other PFAS in the Cape Fear River Basin.” NC Epidemiology, 19 September 2022, https://epi.dph.ncdhhs.gov/oee/a_z/genx.html. Accessed 5 March 2023.
[4]Foguth, Rachel, et al. “Per- and Polyfluoroalkyl Substances (PFAS) Neurotoxicity in Sentinel and Non-Traditional Laboratory Model Systems: Potential Utility in Predicting Adverse Outcomes in Human Health.” Toxics, vol. 8, no. 2, June 2020, p. 42. Crossref, https://doi.org/10.3390/toxics8020042.
[5]Sinclair, Georgia M., et al. “What are the effects of PFAS exposure at environmentally relevant concentrations?” Chemosphere,, vol. 258, no. 127340, 2020, https://www.sciencedirect.com/science/article/pii/S0045653520315332?via%3Dihub. Accessed 5 March 2023.
[6]Dill, Emma. “Wilmington water free of PFAS, GenX, local utility authority says.” Wilmington Star-News, 11 October 2022, https://www.starnewsonline.com/story/news/local/2022/10/11/wilmington-water-free-of-pfas-genx-local-utility-authority-says/69553249007/. Accessed 5 March 2023.
[7] Ahearn, Ashley. “A Regrettable Substitute: The Story of GenX.” National Institute of Environmental Health Sciences, U.S. Department of Health and Human Services, 14 Mar. 2019, ehp.niehs.nih.gov/doi/10.1289/ehp5134.
[8]Clean Cape Fear. “Timeline — Clean Cape Fear.” Clean Cape Fear, https://www.cleancapefear.org/timeline-1. Accessed 5 March 2023.
[9]NCDEQ. “Chemours Consent Order | NC DEQ.” NC DEQ, 25 February 2019, https://deq.nc.gov/news/key-issues/genx-investigation/chemours-consent-order. Accessed 5 March 2023.
[10]U.S. Environmental Protection Agency. “Drinking Water Health Advisories for GenX Chemicals and PFBS | US EPA.” EPA, 30 June 2022, https://www.epa.gov/sdwa/drinking-water-health-advisories-genx-chemicals-and-pfbs. Accessed 5 March 2023.
[11]Prensky, Matthew. “GenX water crisis: What well testing is telling us about PFAS.” Wilmington Star-News, 21 February 2023, https://www.starnewsonline.com/story/news/local/2023/02/21/genx-water-crisis-what-well-testing-is-telling-us-about-pfas/69884135007/. Accessed 5 March 2023.
[12] Isaacs-Thomas, Bella. “4 Things to Know about Regulating ‘Forever Chemicals’ in Drinking Water.” PBS, Public Broadcasting Service, 17 Mar. 2023, https://www.pbs.org/newshour/science/4-questions-about-the-epas-proposed-pfas-drinking-water-standard-answered.
[13]Ben Crump Law. “What Is the Polluter Pays Principle? | Ben Crump.” Ben Crump Law, 2023, https://bencrump.com/environmental-justice-lawyer/what-is-the-polluter-pays-principle/. Accessed 6 March 2023.
[14]Stallworth, Holly. “Water and Wasting Water Pricing.” NEPIS, EPA, https://nepis.epa.gov/Exe/ZyPDF.cgi/901U1200.PDF?Dockey=901U1200.PDF. Accessed 6 March 2023.
[15]European Union. “CONSOLIDATED VERSION OF THE TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION.” EUR-Lex, European Union, 26 October 2012, https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:12012E/TXT&from=EN#page86. Accessed 6 March 2023.
[16]European Commission. “Ensuring that polluters pay – toolkit.” Language selection | Environment, 10 November 2021, https://environment.ec.europa.eu/economy-and-finance/ensuring-polluters-pay_en. Accessed 6 March 2023.
Kate, this is so crazy to read that you were a “victim” of the Cape Fear River PFAS pollution. These environmental justice concerns become so real when they hit home, and it’s crazy to imagine how you felt talking about this with your friends while growing up here for years upon hearing the news. The Polluter Pays Principle seems to be a just policy, and one that should, in theory, threaten corporations enough that they should take severe precautions to avoid chemical spills or intentional waste mismanagement. However, it seems that the principle is far from being as effective as we’d hope, and I doubt that businesses’ ability to lobby and influence regulators will ever go away. What can we do to get immediate justice to wronged communities instead of decade-long battles with businesses who fail to be held accountable to the degree that is required for adequate reparations ?
I hope you and the river can get the justice it deserves and that the people living amongst its sources can find a healthy future. In a class at Duke this fall (Business Human Rights) I had the pleasure to meet Emily Donavan of Clean Cape Fear organization. She had an incredibly sad story of the pain and deaths that children in her community have endured due to the pollution of the river, and an incredible inspiring story where a ministry woman and corporate leader turned community activist upon seeing her peers suffer. In pioneering this organization, she fights for justice and inspires Carolinians to stand up despite your fear. Reading your article brought back the intense emotions I felt in her presentation and deep feeling of needing to help activist movements. Your story and others alike are powerful and need to be heard to get the change and support Cape Fear River needs.
https://www.cleancapefear.org/who-are-we-1