Is poisoning the river, forever?

The Cape Fear River flows through N.C. Indian Country with PFAS's "forever" contamination

The Cape Fear River. Photo credit: U.S. Corps of Engineers

The Cape Fear River is the only River in N.C. that flows directly into the Atlantic Ocean. It has been industrialized, dammed, locks have been built, it has been navigated and commercialized, and poisoned. The most recent poison threatens to be there forever.

A lot has been said about PFAS (per- and polyfluoroalkyl substances) or “forever chemicals” without explaining it very well or saying why it is different from Persistent Organic Pollutants (POPs), that category of pollutants we were just warned about a decade ago. It turns out they are similar in that one has chlorines as its predominant pollutant (POPs); and one has fluorines as its predominate pollutant (PFAS). Chlorine and Fluorine are in the same group of elements on the Periodic Table which groups according to its structure and behavior. (See the red box on the chart.) Both can be organic, meaning they contain at least one atom of carbon.

Why did EPA allow the manufacturing of PFAS in the first place?

EPA’s current instructions for reporting PFAS, says little about PMN or Pre-Manufacturing Notices.¹ This is the mechanism by which EPA can say “no” to the manufacture of a chemical that is determined to be more harmful than good. So what happened that EPA allowed PFASs to be manufactured in the first place?

For one, PFAS predate the TSCA (Toxic Substances Control Act), the statute that requires Pre-Manufacturing Notices (PMNs) to determine whether their benefit outweighs the harm. Products like Teflon are proprietary PFAS coatings that have been around for decades. The harm and persistent presence was only recently realized or at least made public.

1967 advertisement for Teflon coated cookware.

PFAS can have health effects on everything in the environment. With regard to humans who fish, swim and drink the water in the contaminated rivers, PFAS can cause decreased fetal growth and development, lower immune responses, liver toxicity, kidney toxicity and blood toxicity, but this is only for oral exposure and does not even consider dermal or inhalation risks.² The GenX exposure study conducted by NC State University, showed that people along the Cape Fear River do have a presence of PFAS in their blood.³

EPA released MCLs for PFAS which are the levels of contaminants that are acceptable under the Safe Drinking Water Act (SDWA). The SDWA was passed in 1974,⁴ and it is the statute that requires your annual water quality report that you should receive in the mail each year from your water supplier.

Native Americans along the Cape Fear

For millenia, Native American Tribes in North Carolina have used the Cape Fear River. The Waccamaw Sioux, the Coharie and the Tuscarora (Skarure Woccon Tribe, also known as Cape Fear Indians) are specifically inhabitants and users of the Cape Fear River and its region. One in five North Carolinians use water from the Cape Fear, in addition to this unique contact by Native Americans in North Carolina. Native Americans that use the Cape Fear for subsistence fishing and other cultural practices, as well as managing wildlife, are more exposed than the general population. Indigenous environmental justice is specifically defined by these distinctions making Native Americans due to these cultural practices uniquely vulnerable to these pollutants.

Unlike mining waste that kills everything in its path, and had intense unnatural colors in the water, PFAS are the silent killers that go unnoticed, untasted and unknown without special chemical testing.

People along the Cape Fear have been tested and PFAS appear in blood samples. The alligators in nearby Waccamaw Lake are contaminated with PFAS and showing signs of immuno-deficiency effects.

The Rivers in North Carolina are connected to the Tribes that call them home, so much so that they often share the same names: Lumbee Indian Tribe (Lumber River); Coharie Indian Tribe (Coharie River); Waccamaw Sioux Tribe (Lake Waccamaw); Meherrin Indian Tribe (Meherrin River); Chowan Tribe (Chowan River), Cape Fear Indians (Cape Fear River). Native scholars from North Carolina have written about this relationship and the damage⁵ that has been caused and the efforts to understand Indigenous Environmental Justice.⁶

Hope to stop the “forever” pollution

These plants in this “floating treatment wetland”, can extract and store heavy metals without harm to the plants. Stockholm, Sweden. Credit: Maria Schück

There is hope that research from Sweden may be useful in clearing the PFAS from the Cape Fear River. This floating treatment wetlands pictured here is designed to contain the uptake of PFAS into these particular plants. Although the plants are not harmed, they would need to be disposed to avoid re-circulating PFAS into the environment, through either returning to the soil, or being eaten by animals and spread further. With some planning for the unintended consequences, it looks like a promising biological solution to at least begin removal from the water.

This also depends upon Dupont Chemours ceasing their disposal activities into the River, but since they were seeking to import more PFAS for disposal in N.C. from their plant in the Netherlands, one has to wonder about their sincereity?

Probe of Dupont/Settlement with Dupont/Consent Order with NC

The North Carolina Department of the Environmental Quality entered into a consent order with Dupont Chemours in 2019 that outlined in 49 pages requirements to stop the release of PFAS into the Cape Fear River.⁷ Oddly, although EPA had granted an importation permit to Dupont Chemours to import more PFAS to be disposed of in N.C., not a word was mentioned about this in the Consent Order.

On the civil litigation front, Dupont Chemours agreed to a settlement with all water pollution claims in a class action, nationwide of $1.185 billion dollars.⁸ The largest area of contamination in the U.S. is in North Carolina.

Meanwhile, the United Nations Rapporteur sent a letter charging Dupont de Nemours Inc., Chemours, LLC and Corteva Agriscience LLC (the Dupont spinoff shells) with “blatant disregard for human rights and environmental protections” that these companies have shown by knowingly releasing PFAS, that they knew were harmful into the River from their North Carolina plant. The United Nations is investigating the companies as well as the U.S. and the Netherlands for their role in allowing the disregard for human rights.⁹

Dupont Chemours’ had plans to expand PFAS production at its Fayetteville Works plant, and to ship 4.4 million pounds of PFAS waste from the Netherlands to the Chemours plant.¹⁰ However, due to the increased state, federal and international pressure, the U.S. EPA rescinded their permit to import PFAS, not because it was a forever pollutant that would contaminate the Cape Fear River further, but because Dupont Chemours had miscalculated the amount of waste they would bring in on their permit application!¹¹ Clearly there is too much discretion for EPA in granting permits if that is their criteria for denying a permit.

Meanwhile, in North Carolina, Dupont Chemours has “graciously” provided some funding as a sponsor for the AISES (American Indian Science and Engineering Society) powwow just this month, they boast on their “X” account in the name, “Chemours Neighbors”. If that is not cringe-worthy enough, their first line on their community webpage is, “We commit to being good corporate citizens, upstanding stewards of our local environmental resources, and good neighbors with Unshakable Integrity, one of our values.”¹² I am impressed with their unshakable commitment to denial. Is this subtle bribery or just good public relations?

One of the problems with settlements for environmental damages in civil proceedings is that the money goes to compensate the victims. But just compensating the victims to offset the loss in value of their land and degradation to their health is fully warranted, but it is hardly putting the Cape Fear River back to a healthy state. The Cape Fear is already suffering from more hog farms (and its runoff) than any other River in America, but allowing continual settlements to go without restoration funding for the River means ultimate death of the River. This is one of the arguments for the growing movement to give rights to rivers, in order to have a guardian make a claim on the River’s behalf in order to get a restorative award to help the River recover. Native America is on the forefront of this movement and more than a dozen Tribal Nations have passed Tribal Laws to give rights to the environment. An Indigenous Non-profit group supported legislation that was introduced in the N.C. legislature that would give the Haw River, the right to “exist, flourish, regenerate, and evolve”.¹³ The Haw River joins about 200 miles away from the Cape Fear River emptying into the Atlantic Ocean. The bill did not pass.

Reversing the Forever

EPA is now using TSCA to prevent further manufacture of PFAS, but the substitutes are proving to be just as dangerous or more so because they may be harder to remove. The process of granting permits to import forever chemicals into the U.S. for convenient disposal is a gap that needs to be addressed with criteria that is more probing than making sure the form is correctly completed.

Where is EPA’s effort to protect Native Americans against Indigenous Environmental Justice? EPA could not even designate the banks of the Cape Fear a Superfund site with a cleanup site assessment.¹⁴ We have not heard from them, despite the well established disproportionate impact on the Cape Fear River.

This is an example of how these environmental harms were shifted to those that are the least politically powerful, indigenous people on the Cape Fear River who depend on the River for food. Indigenous Environmental Injustice requires some specific remedies, like the U.N. also condemning the U.S. for allowing Dupont Chemours to violating the principles of the American Declaration of the Rights of Indigenous Peoples. Although the UNDRIP is not binding on Nations, it is a moral guide that 143 countries voted to support.¹⁵

The life of the Cape Fear River is worth saving and human fates are closely tied with the River’s fate. It is worth some sacrifice, even the smallest step that might mean just giving up teflon and its progeny in cookware purchases. In the meantime, the biological solutions for recovery of the Cape Fear should be a priority.

1. https://www.epa.gov/system/files/documents/2024-05/tsca-8a7-reporting-instructions_may2024.pdf

2. https://www.epa.gov/system/files/documents/2021-10/genx-chemicals-toxicity-assessment_tech-edited_oct-21-508.pdf at p. ix

3. https://genxstudy.ncsu.edu/

4. 42 U.S.C. §300f et seq. (1974).

5. David Shane Lowery, Lumbee Pipelines (forthcoming, Univ of Nebraska Press) see https://usm.maine.edu/directories/people/david-lowry/

6. Ryan Emanuel, On the Swamp (2024) at https://uncpress.org/book/9781469678320/on-the-swamp/

7. https://www.deq.nc.gov/genx/2019-02-25-consent-order-file-stamped-and-fully-executed-b/download

8. https://insideclimatenews.org/news/26022024/un-chemours-pfas-north-carolina/

9. https://news.bloomberglaw.com/environment-and-energy/un-probes-dupont-chemours-over-human-rights-harms-from-pfas-23

10. https://ceh.org/latest/press-releases/70-organizations-call-on-epa-to-deny-4m-pounds-of-pfas-waste-imports

11. https://news.bloomberglaw.com/environment-and-energy/epa-withdraws-chemours-approval-to-import-pfas-wastes-to-us

12. https://www.chemours.com/en/sustainability/2030-goals/community-impact/vibrant-communities

13. https://ecojurisprudence.org/initiatives/north-carolina-u-s-rights-of-the-haw-river-ecosystem-act/

14. https://cumulis.epa.gov/supercpad/CurSites/csitinfo.cfm?id=0407654

15. https://thephn.com.au/news/anniversary-of-the-united-nations-declaration-on-the-rights-of-indigenous-peoples-september-13