Records provide insight into North Carolina environmental agency’s relationship with chemical company

North Carolina’s environmental protection agency did not hold a chemical manufacturer accountable for missing a deadline to build a barrier wall intended to prevent “forever chemicals” from leaking into a local river, according to new reporting by WHQR, Wilmington’s NPR member station.

Using public records the news outlet obtained with free legal support from an attorney at the Reporters Committee for Freedom of the Press, WHQR reported last week that the North Carolina Department of Environmental Quality never threatened to fine Chemours after the company failed to meet its May 2023 deadline for constructing the wall. A 2019 consent order required Chemours to build the wall to resolve lawsuits an environmental group filed against the company and the NCDEQ, alleging that the company had spent decades dumping toxic polyfluoroalkyl substances — known as PFAS — into the Cape Fear River.

After Chemours missed last year’s wall-construction deadline, WHQR reporter Kelly Kenoyer reached out to officials from the NCDEQ to find out if the agency planned to fine or otherwise punish the company. But agency officials declined to comment.

“They were not being transparent,” Kenoyer said. “I had to request documents to get a sense for what was going on.”

In a public records request filed with the NCDEQ last June, Kenoyer specifically asked for roughly six months of email communications between employees of Chemours and employees of the agency related to the company’s permit to build the wall. She figured the records could help confirm whether the agency had threatened to fine the company for missing its construction deadline.

However, a public records custodian told Kenoyer that the request could take months to fulfill. “That’s when I started looking for pro bono help,” she said.

Kenoyer’s search for free legal support took her first to ProJourn, a partnership between the Reporters Committee, Microsoft, Davis Wright Tremaine LLP, and the John S. and James L. Knight Foundation to provide local journalists and newsrooms free legal help with pre-publication review and public records access. A representative of ProJourn then connected the journalist to Reporters Committee Staff Attorney Elizabeth Soja, who is based in North Carolina.

After Kenoyer explained her situation, Soja began corresponding with NCDEQ officials via emails and phone calls on behalf of WHQR. Then, last November, Soja sent the agency’s assistant general counsel a letter expressing concerns about the delay in responding to Kenoyer’s request and asking the agency to promptly turn over the records.

“Continued delay in producing, or permitting inspection of, the requested records are sufficient grounds for Ms. Kenoyer and WHQR to pursue legal action compelling disclosure under” the North Carolina Public Records Act, the letter concluded. “As you know, when such an action is successful, the plaintiff may recover reasonable attorney’s fees.”

Not long after the letter was sent, Kenoyer said agency officials turned over the records she had requested. “Once there was legal pressure,” she said, “they pretty much folded immediately.”

Kenoyer said it took her a while to sift through all of the communications she obtained through her request. She also spent time consulting with environmental experts and advocates who helped her make sense of the records.

As Kenoyer reported on April 30, the records provided insight into the relationship between regulators and employees of Chemours. The NCDEQ, Kenoyer wrote, “never discussed a fine with Chemours, and exerted little or no pressure to complete the wall more quickly.”

In a statement to Kenoyer, the NCDEQ confirmed that it “did not impose a fine related to the construction delays for the barrier wall,” adding that it “focused on making sure the project was properly completed and effectively meeting the limits required by the Consent Order and related permits.”

In response to Kenoyer’s question about the cause of the delay in building the wall, Chemours said in a statement that both the company and regulators recognized at the time that Chemours proposed the project “that various factors could impact and lengthen the projected completion date including adjusting the start of construction to allow time for DEQ approval of the project and appropriate permitting.”

Chemours, which noted that the barrier wall was completed on June 11, 2023, also told Kenoyer that the company “worked with our contract partners to resolve construction challenges such as supply of materials and mechanical breakdowns of equipment, and the company and our partners adjusted staffing to mitigate the impact to timing of these challenges. ”

Kenoyer said she is “very grateful” to Soja and the Reporters Committee for providing free legal support to help her obtain records that shed light on an environmental project that is so critical for the health and safety of the local community. If it hadn’t been for Soja’s help, she said, she would probably still be waiting for the records — and local residents still wouldn’t know important information about the dynamics of the relationship between NCDEQ regulators and Chemours.

“In many cases, these institutions don’t follow the law because most news outlets don’t have the resources to push back. They just hope the reporters forget about it,” Kenoyer said. “This was the one request out of dozens that they had legal pressure forcing them to follow through on it.”

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.