May 18, 2018. Yesterday, the N.C. House and Senate introduced identical bills in another attempt to legislatively address the impact of GenX (a perflourinated compound) on the Cape Fear River and drinking water wells. See an earlier post for background on the GenX issue. In September of 2017,  the Department of Environmental Quality (DEQ) filed a lawsuit against  The Chemours Company under existing water quality laws and reached a partial consent order that requires Chemours to end all wastewater discharges of GenX to the river from its Fayetteville facility.  The consent order reserves DEQ’s right to ask the court to order Chemours to take additional actions related to GenX groundwater contamination and other violations. DEQ has also reviewed Chemours’ air emissions, which may be another source of  surface and groundwater contamination as GenX  returns to the ground in rainwater. Based on monitoring results, DEQ  has notified Chemours  of an intent to modify the plant’s air quality permit. Copies of documents related to the enforcement actions  can be found on DEQ’s Chemours enforcement webpage.

The two new bills, House Bill 972 and Senate Bill 724, appropriate money to address GenX and other per- and poly-fluoroalkyl substances (PFAS),  but also change environmental enforcement law and require specific steps to address GenX groundwater contamination.   This post focuses on the possible unintended consequences of provisions in the bill that affect environmental enforcement and remediation.

Section 1 of each bill creates a specific enforcement provision for contamination caused by GenX or other PFAS by adding a new paragraph to an existing enforcement law, G.S. 143-215.3,    authorizing  the Governor to order a facility to stop operations resulting in release of GenX or other PFAS. Although the intent may be to provide a quick response to PFAS pollution, the provision may actually slow or undercut DEQ’s ability to pursue enforcement actions against Chemours or a future source of PFAS pollution.

Under existing water and air quality laws,  DEQ can direct a facility to stop an illegal wastewater discharge or emission of air pollutants by issuing a Notice of Violation or compliance letter. If the violator fails to comply within the time allowed or DEQ believes the violation creates an imminent threat, DEQ can file a lawsuit and ask for a court-enforced  injunction requiring compliance.  Last year, DEQ used that authority (see G.S. 143-215.6C)  to file an action in superior court against Chemours. The lawsuit has already resulted in a partial consent order to  end all wastewater discharges of GenX to the Cape Fear River. Since then, DEQ has continued to investigate the scope of GenX groundwater contamination and has issued compliance letters to Chemours requiring initial steps to address sources of groundwater contamination (such as stormwater drainage). DEQ has the ability to go back to court if Chemours fails to follow through. As the permitting agency DEQ can also address both water and air quality impacts by changing the terms of the Chemours’ permits. DEQ has already notified Chemours of the department’s intent to modify the facility’s air quality permit, presumably to reduce air emissions of GenX.

The new  provision in H972 and S724 would allow the Governor to issue an administrative order to shut down releases of GenX or other PFAS. On its face, a Governor’s order sounds like a quicker and more direct way to stop the release of these pollutants. In reality, any order could be appealed in an administrative hearing and the administrative law judge has the power to prevent  the order from going into effect until there has been a final decision on the appeal. Although the bills don’t mention the possibility of an administrative appeal, the state’s Administrative Procedures Act (APA) creates that right. (See G.S. 150B-23 for the law on appealing state actions.)  An administrative appeal can take as much as a year, slowing enforcement.  Under existing water and air quality enforcement laws, DEQ can go directly to court for an injunction instead of issuing an order potentially leading to an administrative appeal hearing.

The new provision  raises questions about both the path forward on existing Chemours enforcement actions and the impact on future state enforcement actions in response to release of  PFAS from other facilities.

With respect to DEQ’s ongoing Chemours enforcement actions, one question is whether the  legislature intends the new provision to be the exclusive remedy for Chemours’ violations, overriding DEQ’s ability to go directly to the courts for an injunction. In the absence of clear legislative language to the contrary, courts can interpret more recent and more specific laws to override earlier and more general laws.  The risk would be that a court may interpret the new enforcement provision specifically addressing PFAS pollution to override existing  but more general water/air quality enforcement laws.  At the very least, the legislation needs to be clear about the relationship between the Governor’s new power and DEQ’s existing authority to go directly to court for an injunction.  If the new provision becomes the only enforcement path, the legislation could slow rather than accelerate enforcement against Chemours.

There may also be a need to harmonize the Governor’s power with DEQ’s permitting authority under the Clean Water Act and Clean Air Act.  An order affecting wastewater discharges or permitted air emissions will likely require modification of facility permits. Under federal delegations of permitting authority to DEQ,  significant modification of a permit usually triggers requirements for public notice and EPA review.

The new provision also limits issuance of a Governor’s order in several ways that don’t apply when DEQ exercises its existing water quality and air quality enforcement authority:

♦  An order could only be issued for a  facility that has an NPDES (wastewater discharge) permit.  The order could not be used for a completely unpermitted source or to address air emissions causing PFAS  pollution if the source doesn’t  also have an NPDES permit.

♦ An order could not be issued  unless the facility had received more than one Notice of Violation in the previous two years.

♦ DEQ has to make  efforts to eliminate the unauthorized discharges for at least a year before an order can be issued.

The conditions were clearly written to cover Chemours. But if a PFAS pollution problem arises at another facility, the provision could hamstring DEQ’s ability to act unless and until all three  conditions have been met. Again, this creates a significant problem if the new provision becomes the only enforcement remedy for addressing PFAS pollution.

Many of the concerns raised by Section 1 could be addressed by clarifying that existing environmental enforcement laws/rules implemented by DEQ continue to apply, making the new provision an additional tool rather than the only remedy for PFAS pollution. Even then, it may  be necessary to provide guidance on how issuance of a Governor’s order affects both pending and future DEQ enforcement actions under those existing laws.

This section of H972 and S724  has a sunset date of December 31, 2020, which means it would be automatically repealed on that date unless the legislature acts to extend it.

Sec.4(a) Directs DEQ to develop a plan to assess and remediate groundwater and surface water contamination associated with PFAS. Again, the legislation doesn’t explain how the provision affects DEQ’s existing authority especially with respect to groundwater contamination. State groundwater rules require the person who caused the contamination to develop under DEQ supervision – and pay for – a plan to assess and remediate groundwater contamination. The bill language does not mention state groundwater rules or the polluter’s responsibility for assessment and remediation; it appears to put the entire responsibility for an assessment and remediation plan on DEQ.   This is likely another unintended result that could be fixed by cross-referencing  existing rules describing the polluter’s responsibility for assessment and remediation.

As a practical matter,  this is a bigger issue for groundwater assessment and remediation than for surface water pollution.  DEQ can often assess surface water impacts by taking in-stream samples and eliminate the impact by simply stopping or reducing the discharge.   Determining the extent of groundwater contamination and implementing a groundwater cleanup plan can be much more time, labor and money-intensive.

One other note.  Section 2 of the bill authorizes DEQ to order a person responsible for contaminating a drinking water well with GenX or another PFAS to provide a permanent alternative water supply to the well owner. The language looks very similar to the alternative water supply  provision in 2016 coal ash legislation.   The difference: the coal ash provision required Duke Energy to provide an alternative water supply  to every well owner within 1/2 mile of a coal ash impoundment; the GenX provision applies to individual wells on a case by case basis.  DEQ would need to order Chemours to provide alternative water supply to an individual well owner based on data linking the well contamination to Chemours as the source.  Again, the GenX provision doesn’t mention existing state groundwater rules that already require the person who caused groundwater contamination to  “mitigate any hazards resulting from exposure to the pollutants” and restore groundwater to meet state standards.  (15A NCAC 2L.0106).  On a quick review, the GenX alternative water supply provision seems to be consistent with  existing state groundwater rules but does not necessarily provide a speedier path to alternative water supply.  In either case, the burden is on the state to establish the cause and effect link between Chemours’ activity and contamination of individual wells.