Cleanups and health care costs tied to the “forever chemicals” known as #PFAS could reach into the billions. Has DuPont found a way not to pay? — NBC News

From NBC News (Gretchen Morgenson):

…there’s a risk that [Robin Andrews] and other people with illnesses linked to the chemicals could end up with no compensation for their health problems. That’s because a major manufacturer, DuPont, recently unloaded its PFAS obligations to smaller companies that do not have the money to pay for them.

For decades, DuPont manufactured PFAS-type chemicals in a plant close to Andrews’ home in this tiny South Jersey town on marshy land near the Delaware River. Her grandfather and father both worked at the sprawling plant, known as the Chambers Works, which covers 1,400 acres of riverbank in the shadow of the bridge to Delaware.

In 2017, after she developed unexplained high liver enzymes, her well water tested positive for PFAS; she now runs it through a large filtration system in her basement and has it monitored every three months.

DuPont “could have been a great company and a very good thing for this area had they chosen to take care of people and to be responsible with the way they disposed of these toxins,” Andrews told NBC News. “But they weren’t. I believe it was an economic decision to put people at risk.”

Jeff Tittel, senior chapter director of the New Jersey Sierra Club, has watched DuPont’s moves with concern. “They are setting up other companies to take the fall on liabilities that won’t have enough money, so even if people win lawsuits, they will get nothing or very little,” he said.

PFAS are not regulated by the Environmental Protection Agency under the Safe Drinking Water Act and their side effects are still being understood by scientists and the public. In February, the EPA put out a proposal to regulate two of the most common PFAS chemicals found in drinking water and is asking for comment on how to monitor them.

On Wednesday, the EPA disclosed it “has multiple criminal investigations underway concerning PFAS-related pollution.” The agency did not identify the entities being investigated and it could not be determined if DuPont is one of them.

Daniel Turner, reputation and media relations manager for DuPont, said the company had not received an information request from the EPA related to a criminal investigation…

In 2015, as problems associated with PFAS were becoming clearer, DuPont began a series of complex transactions that transformed the company’s structure. As a result of the transactions, responsibility for environmental obligations associated with the chemicals shifted onto other entities.

The first shift by DuPont occurred in 2015, when it assigned the great majority of liabilities associated with PFAS to The Chemours Company, a new entity containing DuPont’s chemicals business that was spun off to its shareholders…

In a statement provided to NBC News, DuPont spokesman Turner denied that the Chemours spin-off was an attempt to evade environmental and legal liabilities associated with PFAS. “The reason for the spin-off,” Turner said, was that DuPont “was seeking to transform itself into a higher growth, higher value company” and “saw more growth opportunities in its other businesses.”

A second spin-off was Corteva Inc., in 2019, an agriculture science company that holds other legacy DuPont operations and some PFAS liabilities.

The third transaction occurred last June when so-called new DuPont was created. Formerly known as DowDupont, its businesses include electronics, transportation and construction. Because of the two other spin-offs, new DuPont is two steps removed from PFAS obligations…

Chemours, with primary responsibility for the estimated tens of billions of dollars in PFAS obligations, does not have anywhere near the money or assets to cover them. Chemours’ net worth — its assets minus liabilities — stood at just $695 million as of Dec. 31, 2019.

If Chemours becomes insolvent, Corteva Inc. will be responsible, corporate filings show. Corteva does not have the funds to cover tens of billions in estimated PFAS costs either. Turner declined to say whether PFAS responsibilities would ultimately revert to DuPont if Chemours and Corteva are unable to pay them. A lawyer for Chemours declined to comment.

Corporate spin-offs like DuPont’s that transfer liabilities associated with problematic businesses are becoming more common, analysts say, especially in the energy and chemical fields.

“You’re seeing it again and again,” said Clark Williams-Derry, an analyst with the Institute for Energy Economics and Financial Analysis. “Spinning off your legacy liabilities into a separate corporation and to some other responsible party appears to be part of the standard playbook in these industries.”

[…]

DuPont is not the only PFAS manufacturer under scrutiny. Another is 3M, headquartered in Minneapolis. Both companies stopped making PFAS over a decade ago. 3M is fighting the suits and says it is cooperating with government investigators.

DuPont and 3M both face lawsuits over problems allegedly linked to PFAS. But DuPont’s shift of its PFAS liabilities to Chemours has drawn its own raft of litigation. In a complaint filed last year against DuPont by Chemours, it contended that the 2015 deal was fraudulent. DuPont knew and intentionally hid the scope of the liabilities when it dumped them into Chemours, the company alleged.

In response, DuPont says Chemours executives were well aware of the PFAS problems at the time of the spin-off and could not have been duped. Next up is the judge’s ruling on oral arguments in the case…

Legal filings allege DuPont knew for decades that PFAS posed a threat to humans…

In early PFAS cases, lawyers for plaintiffs found internal, undisclosed DuPont documents showing toxicity in PFAS. While the company has acknowledged the findings in court filings, it argued that they were either inconclusive or applicable only to employees working with the chemicals, not to people drinking tap water near DuPont facilities.

The New Jersey lawsuit alleges that DuPont began to recognize toxicity in the most common PFAS chemical in the 1960s but did not tell the state or local communities about the problem.

DuPont has not answered the New Jersey complaint but in previous lawsuits, DuPont has denied that it hid PFAS risks. DuPont spokesman Turner declined to say how long DuPont knew about the toxicity of PFAS, but said the company has provided extensive information over the years to the EPA about potential harm related to the chemicals.

The New Jersey suit also says DuPont hid the results of a 1981 blood sampling study of pregnant employees who worked with the chemicals that found one-quarter had children with birth defects…

The potential that shareholders will take on undervalued liabilities is greater in spin-offs, merger experts say. That’s because the kind of in-depth due diligence that a third-party buyer would do to to determine possible liabilities is not typically done by new owners in a spin-off. Those owners are essentially trusting the parent company to be forthcoming about the obligations.

Had DuPont instead sold its legacy chemicals businesses to another company, the buyer would have dug into the obligations associated with its PFAS production prior to the purchase. Any resulting deal would take those potential liabilities into account, resulting in either a lower sale price, an insurance policy or a right by the buyer to recover costs from DuPont later.

Because DuPont’s existing shareholders took on the liabilities in the Chemours and Corteva spin-offs, that detailed assessment was not done. The Chemours lawsuit alleges that DuPont pursued the spin-off so it “could control the transaction structure and economics” after concluding that “no rational buyer” would accept the liabilities associated with PFAS.

DuPont spokesman Turner disputed this, saying that multiple firms submitted proposals to acquire Chemours before the spin-off. He declined to provide specifics about those companies, however, or their bids.

Back in 2015, when DuPont was preparing to spin off Chemours, the parent company made insufficient disclosures about the environmental liabilities to be shouldered by the new shareholders, the Securities and Exchange Commission found. The company had to provide more details, regulatory filings show.

PFAS contamination in the U.S. via ewg.org. [Click the map to go to the website.]

@DenverWater files appeal to #Boulder District Court ruling that the Gross Reservoir Expansion Project must go through 1041 process

Gross Reservoir. Photo: Brent Gardner-Smith/Aspen Journalism

From The Boulder Daily Camera (Charlie Brennan):

The action filed to the Colorado Court of Appeals raised several issues to be addressed by the higher court, including whether Boulder District Court Judge Andrew Macdonald erred in his Dec. 27 decision by concluding Boulder County had not exceed it jurisdiction, abused its discretion or misapplied the law in determining it had regulatory control over the project.

“While we appreciate the district court’s consideration, we respectfully disagree with the conclusion and have decided to exercise our right to further review by the court of appeals,” Denver Water spokesman Travis Thompson said in a statement.

“The Gross Reservoir Expansion Project is a vital component of developing a more secure, reliable drinking water supply for a quarter of the state’s population,” he added. “In the face of the uncertainties of climate change that bring more frequent and extreme droughts and precipitation events, we’ve come together with partners on both sides of the divide to ensure the project benefits the environmental health of our entire state.”

[…]

Gross Dam enlargement concept graphic via Denver Water

Denver Water, which serves 1.4 million customers in the Denver metro area, but none in Boulder County, had planned to start construction in 2019 on what would be the largest construction project in Boulder County history, raising Gross Dam by 131 feet to a height of 471 feet, and increasing the capacity of the reservoir by 77,000 acre-feet.

@DenverWater ‘evaluating options’ after Gross project ruling — The Arvada Press #ColoradoRiver #COriver #aridification

Gross Reservoir, west of Boulder. Photo by Brent Gardner-Smith/Aspen Journalism

From The Arvada Press (Casey Van Divier):

A court ruling from the end of 2019 determined Denver Water officials must obtain an additional permit for the Gross Reservoir Expansion Project — a project that Arvada is depending on so it can continue developing land…

Arvada has a contract to purchase raw water from the reservoir and, in return, is sharing the cost of the project with Denver Water…

Denver Water is one of two sources through which Arvada obtains its water, with the other being Clear Creek, said Jim Sullivan, the city’s former director of utilities.

In total, the city has the rights to roughly 25,000 acre-feet of water, with about 19,000 of that provided through its existing contract with Denver Water, he said.

“We have a comprehensive plan that shows what the city limits will eventually grow to” by 2065, when an estimated 155,000 people will live in Arvada, Sullivan said. This plan would require approximately 3,000 additional acre-feet of water, which will be provided by the expansion project.

If the project was canceled, the city would need to halt development until it could secure alternate resources, Sullivan said.

Those other resources “have been harder and harder to come by,” said Arvada water treatment manager Brad Wyant. Other entities have already laid claim to the other major water supplies in the area, he and Sullivan said.

“The next big water project will be some kind of diversion of water from the Western Slope to the Denver area,” Sullivan said. This would be a major endeavor and “there’s nothing even on the horizon at this point,” he said, making the success of the Gross project a necessity for Arvada development.

So far, the city has contributed about $3 million to the project, with plans to contribute about $100 million by 2030.

The contributions are funded through Arvada Water’s capital improvement budget, which consists of one-time tap fees that customers pay when they first connect to the Arvada Water system. Resident’s bimonthly water billing funds ongoing operations and will not be used for the Gross project, Sullivan said.

Denver Water has estimated the project will cost a total of $464 million.

New Boulder Creek stretch through Eben G. Fine Park designated ‘impaired’ by state — The Boulder Daily Camera

E.coli Bacterium

From The Boulder Daily Camera (Sam Lounsberry):

State officials last month designated a new, and popular, stretch of Boulder Creek from the mouth of Boulder Canyon through the park as “impaired” due to elevated levels of E. coli.

But tubers, swimmers, fishermen and women will still likely be able to take a dip this summer if they wish.

The new designation by the state for the creek’s west Boulder stretch adds to the existing impairment of the waterway from 13th Street east to its confluence with South Boulder Creek, according to Colorado Water Quality Control Division spokesperson Ian Dickson…

The determination was made based on a “robust” data set of measurements for the E. coli bacteria, Dickson said.

“Every two years, the (state health) department works with the (Water Quality Control) Commission to examine water quality data and identify impaired waters,” Dickson said. “… The department thanks city of Boulder for this information, and we encourage communities to continue to send data so we can work together to protect the environment.”

Boulder spokesperson Meghan Wilson said the city is working on a communication strategy for informing residents and potential creek users of the newly designated impaired stretch of creek. But unlike a swimming beach at a reservoir or other body of water, local officials have little ability to restrict human access to a stream like Boulder Creek, Wilson said…

…earlier in the week, Dickson did offer a response to Boulder Waterkeeper data the advocacy group used to assert there is a that there is a “human waste footprint” to the detected E. coli.

E. coli is a bacterial marker for fecal pollution, which lives in the intestines of humans, wildlife, cattle and dogs, but is not always harmful to humans. However, one strand, known as 0157:H7, can cause abdominal cramps, diarrhea, vomiting and even life-threatening conditions…

“The one sample taken does not provide conclusive evidence that human source bacteria were present. The strain of bacteria the lab tested for could also come from other animals, such as raccoons and geese. Again, the lab indicated more data is needed to determine whether the strain is from humans versus other animals. At this time, even with these E.coli and human fecal bacterial levels, there is no indicator of an illicit discharge or other noncompliance with the university’s permit.”

Colorado re-mapping floodplains of most-affected waterways — TheDenverChannel.com

Flooding in Longmont September 14, 2013 via the Longmont Times-Call

From TheDenverChannel.com (Deb Stanley):

After the 2013 floods devastated communities and took several lives, the state of Colorado is remapping the regulatory floodplain of the most affected waterways in Colorado.

“It’s important to provide public and local land use managers with the most accurate flood risk information so they can make better decisions,’ explained Thuy Patton, Flood Mapping Program Manager for the Colorado Water Conservation Board.

In some counties, there are areas that now have higher flood risk and other areas that now have lower flood risk, which changes which homes are in the flood plain. NOTE: these numbers are approximate, based on public information, and are subject to change.

In Boulder County, with this update, 420 new structures are in flood risk area and approx. 400 structures are now not in special flood hazard area, Patton explained.

In Jefferson County, 53 structures were added.

In Larimer County, 601 structures were added and 1,571 were removed.

In Weld County, 453 structures were added and 1,994 were removed.

In Sedgwick County, 85 structures were added and two were removed.

In Washington County, 26 structures were added and 31 were removed.

In Morgan County, 38 structures were added and four were removed.

And in Logan County, 222 structures were added, while 59 were removed.

FEMA uses Flood Insurance Rate Maps (FIRMs) to set flood insurance premiums. The Preliminary FIRMs will become FEMA’s final effective FIRMs in 2021, pending any appeals received by FEMA.

Learn more about the mapping project here.

Boulder County is starting a series of public meetings about the changes. Representatives from FEMA, the mapping team, and Boulder County will be present at each session. Each open house will focus on specific reaches, but residents are invited to discuss any stream at each meeting:

  • Lower Boulder Creek, New Dry Creek, Coal Creek, and Rock Creek – Tuesday, Jan. 14 | 5 to 6:30 p.m. (presentation at 5:15 p.m.) Boulder County Recycling Center – 1901 63rd Street in Boulder County
  • Saint Vrain Creek, Lower Left Hand Creek, Dry Creek #2, and Little Thompson River – Thursday, Jan. 16 | 5 to 6:30 p.m. (presentation at 5:15 p.m.) Boulder County Parks and Open Space Ron Stewart Building – 5201 St. Vrain Drive in Longmont
  • North, Middle, and South Saint Vrain creeks and Cabin Creek – Tuesday, Jan. 21 | 5 to 6:30 p.m. (presentation at 5:15 p.m.) Highlands Presbyterian Church – 1306 Business Highway 7 in Allenspark
  • Little James Creek, James Creek, Upper Left Hand Creek, and Geer Canyon – Tuesday, Jan. 28 | 5 to 6:30 p.m. (presentation at 5:15 p.m.) Jamestown Town Hall – 118 Main St. in Jamestown. This is a joint meeting between Boulder County and the Town of Jamestown
  • Fourmile Canyon Creek, Two Mile Canyon Creek, Gold Run, Fourmile Creek, Boulder Creek and North, Middle, and South Boulder creeks – Thursday, Jan. 30 | 5 to 6:30 p.m. (presentation at 5:15 p.m.). Boulder Public Library Main Branch, Boulder Creek Room – 1001 Arapahoe Ave. in Boulder
  • Boulder District Judge Andrew Macdonald affirms Boulder County’s 1041 oversight for @DenverWater’s Gross Reservoir Expansion Project

    The dam that forms Gross Reservoir. Photo: Brent Gardner-Smith/Aspen Journalism

    From The Boulder Daily Camera (Charlie Brennan):

    In a seven-page ruling, Boulder District Judge Andrew Macdonald stated that based on evidence placed on the record by both sides in the controversy, he found Boulder County “did not exceed its jurisdiction or abuse its discretion, or misinterpret or misapply the law,” when it asserted its permitting authority.

    That authority, Boulder County has maintained, is established by State House Bill 1041, passed by the Legislature in 1974, which allows local governments to review and regulate matters of statewide interest through a local permitting process.

    Denver Water challenged that authority by filing suit in Boulder District Court in April of this year, claiming what it termed a “zoned law exemption” which it asserted excused it from having to pass through the county process. Denver Water’s complaint claimed the zoning at the reservoir that existed at the time of the passage of the 1041 legislation — officially known as the Activities and Areas of State Interest Act — permitted its planned activities.

    Additionally, the suit stated Boulder County commissioners had exceeded their jurisdiction and/or abused their discretion at a March 14 hearing at which they unanimously upheld Land Use Director Dale Case’s finding that the county review process must apply to Denver Water.

    Macdonald’s ruling struck down Denver Water’s claim to an exemption based on prior zoning.

    “There is nothing on the record that Denver Water had any well-established development rights to expand Gross Dam and Gross Reservoir prior to May 17, 1974,” he ruled. “Any prior contemplated expansion projects cannot be determined to be well-established development rights because the proposed Expansion Project is essentially an entirely new construction project.”

    […]

    In an email Friday night, Denver Water spokesman Travis Thompson said, “As we continue to follow the process of determining the appropriate permitting methods, we will review the order and evaluate our next steps. No matter the path forward, we remain committed to considering input from Boulder County and from community members to minimize and mitigate the impacts of the Project.”

    An additional hurdle remains for the project. Denver Water is still waiting for a final decision by the Federal Energy Regulatory Commission on a hydropower licensing amendment that Denver Water needs in order to go forward with its planned expansion of the reservoir.

    Denver Water’s collection system via the USACE EIS

    Raising a Dam — @ColoradoStateU

    Here’s the release from Colorado State University (Anne Manning):

    Gross Dam spillway design being put to the test by CSU civil engineers

    On any given day, the roar of water cascading over a 20-foot-high dam spillway greets visitors to Colorado State University’s Hydraulics Laboratory. Muck boots are required footwear, as water from the spray spreads across the floor, drains into an under-floor reservoir, and flows back toward an outtake pipe for recycling.

    The experimental spillway, constructed by CSU civil engineers, is a test bed for an ambitious dam-raising project in southwest Boulder County by Denver Water. CSU engineers are applying their hydraulics expertise to help verify key design and functionality aspects of the spillway, part of the public utility’s planned upgrade to Gross Dam. The reservoir impounded by Gross Dam provides water to more than 1.4 million residents along Colorado’s Front Range.

    The engineering team designing the project for Denver Water, Stantec and primary subcontractor AECOM, commissioned civil engineering professors Chris Thornton and Rob Ettema to create a 1:24 working scale model of the heightened dam’s new spillway. The spillway is the only portion of the dam over which water passes.

    A project of this magnitude requires a physical hydraulic model, Thornton said.

    “Computers have come a long way, but they’re not even close to being able to resolve what’s happening in terms of interaction of forces,” Thornton said. “Turbulence and air entrainment are very hard to model accurately.”

    Stepped spillway

    Taylor Hogan, a civil engineering master’s student and Hydraulics Laboratory manger, led the design and building of the model, which required close to 500 custom-built pieces. It is called a stepped spillway, which dissipates energy from the water as it flows over the dam. The steps slow the water, trap air bubbles, and allow water to safely descend. Adding to the model construction’s complexity is a slight arch to the spillway profile – mimicking the current profile.

    The CSU engineers are now testing and documenting performance, including capacity, flow rate, and ability to handle a major influx of water from a storm or natural disaster. When complete, Gross Dam’s will be the tallest stepped spillway in the United States.

    The planned height of the dam necessitated the stepped design. The dam is slated to be raised 131 feet over its current height of 340 feet, increasing the capacity of Gross Reservoir by about 25 billion gallons.

    “The expansion will allow Denver Water to add balance and resiliency to its water collection system, which today is at risk of damage from natural disasters such as wildfires and floods,” said Jeff Martin, Denver Water’s Gross Reservoir Expansion Project program manager. “It will also help to manage the greater uncertainty that comes with a changing climate.”

    The Stantec/AECOM team specified that the spillway be able to manage extreme high flows they estimate to be possible during the rare occurrence of a massive storm.

    “The spillway is designed very conservatively and must perform safely when exposed to extreme conditions,” Ettema said.

    Engineering students Taylor Hogan and Blake Biethman stand next to the Gross Reservoir expansion stepped spillway model, Sept. 9, 2019. Photo credit: CSU/Bill Cotton

    Remaining work

    The CSU researchers are wrapping up the modeling work for Stantec/AECOM to complete the spillway design. The remaining work includes optimizing the layout of the energy-dissipation basin at the bottom of the spillway, to ensure Gross Dam’s design meets safety requirements. Design engineering on the overall dam project is expected to extend through the end of 2020.

    Water flows through the distilling basin at the bottom of the spillway model. Photo credit: CSU/Bill Cotton
    Gross Reservoir in the mountains to the southwest of Boulder. Denver Water hopes to increase the height of the dam 131 feet, to a new height of 471 feet, to store three times as much water, which it says will help it meet increasing demands and to better weather severe droughts.