Category Archives: General Observations

General comment on environmental issues

Hurricane Florence: Deja Vu All Over Again

September 23, 2018.   A serious storm accompanied by flooding has many environmental impacts and most are all too familiar to North Carolina from past storms.  Once the immediate rescue phase has ended, the Department of Environmental Quality (DEQ)  has a larger role in hurricane response than the public may realize. Some of the environmental challenges:

♦  Disabled water treatment and wastewater treatment systems. Large storms can disable environmental infrastructure like water and sewer systems because of lost power, inundation by flood waters or runoff overwhelming the sewage collection system. Any of those impacts can result in release of contaminants, including untreated sewage.

♦  Disposal of storm debris.  Wind damage and flooding creates a huge volume of storm debris: downed trees; construction debris; drywall and flooring removed from flooded homes; sodden carpet; ruined furniture and appliances; animal carcasses; and hazardous materials like paint, solvents, pesticides and other chemicals. Debris from older structures may contain asbestos. DEQ’s Division of Waste Management (DWM) works with local governments to pre-approve new landfills for vegetative waste and non-hazardous construction debris before a storm hits.  But hazardous materials damaged or uncovered by the storm can complicate and slow debris removal because those materials need to be separated for disposal. Improper disposal of hazardous materials can cause groundwater or surface water contamination; burning hazardous materials with other debris may expose nearby residents to dangerous air quality conditions and create a risk of explosion.  Failing to separate and properly dispose of hazardous materials also has a cost;  the Federal Emergency Management Agency (FEMA) will not  reimburse the state for debris collection and disposal that violates federal hazardous waste laws. Unfortunately, storms never sort debris and efforts to clean out flooded homes often create piles of trash that include both hazardous and non-hazardous materials.

♦  Release of contaminants from landfills and dumps (legal and illegal) inundated by floodwaters; spills from above-ground and underground petroleum storage tanks; and releases from other types of chemical storage facilities.  The U.S. Environmental Protection Agency (EPA) emergency response program works with the state DWM and Division of Water Resources (DWR) to  respond to these environmental incidents.

♦ Clearing debris from rivers, streams and drainage ditches.  Large storms also deposit downed trees, limbs, and other debris into streams, rivers and drainage ditches obstructing flows.  Removal of debris from streams and rivers  may require a federal permit under Section 404 of the Clean Water Act. (Any method of removal that would disturb the stream bottom or riverbed requires a permit.) The U.S. Army Corps of Engineers issues the Section 404 permits, but  state water quality and coastal management staff also have a role and frequently help determine whether the permitting requirements apply to a particular stream or drainage feature. DEQ provides a guidance document on stream clearing to help citizens understand how to do the work without violating federal rules.

♦  Animal waste. Updated information on swine waste lagoons (as of noon on September 22, 2018):

Animal Operations – Swine Lagoons

Category Total # Facilities/Lagoons
Structural Damage 5 facilities/5 lagoons
Discharges (Overtopping) 28 facilities/34 lagoons
Inundation, no indicated discharges 7 facilities/9 lagoons
Freeboard 0″ 10 facilities/12 lagoons
Freeboard 0-3″ 25 facilities/35 lagoons

The table above comes from DEQ’s Dashboard. The first category, waste lagoons with structural damage, need repair to stop the release of swine waste through the damaged  lagoon wall. Lagoons that are overtopping (the second category) have been inundated by flood waters and are spilling wastewater mixed with floodwater over the top of the lagoon wall. The other three categories describe swine waste lagoons that are full or nearly full, but not actively releasing wastewater to the environment.

All of these lagoons (and an unknown number of additional lagoons with only slightly more storage capacity) may continue to be a concern for weeks or months beyond the storm. The problem is this:  the entire swine waste management system depends on the ability to regularly spray wastewater from the lagoon onto a crop as fertilizer. Spraying down the lagoon level makes room for storage of new waste coming from the hog houses.  State permits for lagoon and sprayfield systems limit spraying to the amount the receiving crop can use as a nutrient (to avoid contaminating groundwater with excess nitrogen or phosphorus) and prohibit spraying swine waste on already-saturated ground to avoid runoff.  Under those permit conditions, spraying down lagoon levels may not be possible for some period time after the storm has ended because surrounding agricultural lands remain saturated.  In the past, the tension between a need to lower lagoon levels to prevent additional breaches and the environmental impact of spraying wastewater on saturated soil has led to some difficult and controversial policy decisions. Farms have also sometimes needed to remove animals for a period of time because of the lack of waste storage capacity.

Although poultry operations get less media attention than the swine farms, flooding also sweeps poultry waste into floodwaters and creates similar problems for post-storm land application of poultry waste onto agricultural fields.

Coal ash releases. Historically, much of the coal ash produced by coal-burning power plants in N.C. has been disposed of in open ponds that work on the same principle as the swine waste lagoons – solids go to the bottom of the pond and water levels are lowed periodically by pumping from the top layer of water. The difference is that Duke Energy has Clean Water Act permits allowing discharge of water from the top of the coal ash ponds into a nearby river, lake or stream.  Permit conditions  limit the volume to levels that will not cause a violation of water quality standards in the water body receiving the discharge. Hurricane Florence has already caused a significant breach in the dam separating Sutton Lake from the Cape Fear River. The lake receives a wastewater discharge from the Sutton plant’s coal ash pond. DEQ has also documented erosion/wash-out of coal ash from older, now vegetated coal ash basins at the Lee Plant (Goldsboro). DEQ has posted video of the Sutton site and photographs of washover from the Lee ash basin on the Dashboard coal ash page.

Going forward, the question will be what kind of repair/restoration/remediation may be required to address the coal ash releases.

Disposal of dead animals. Disposal of a large number of animal carcasses following a storm has environmental implications, but falls under the responsibility of  the State Veterinarian in the Department of Agriculture and Consumer Services. To date, the Agriculture department has reported over  3 million poultry and more than 5,000 swine killed by Florence and those numbers may rise.  Under state law (G.S. 106-403), dead animals can be buried under three feet of soil or disposed of in any other way approved by the State Veterinarian.  Some of the alternative disposal methods used in the past include composting (particularly of poultry); rendering for use in animal feed; and incineration.  In the past, burial has raised  concern about potential for groundwater contamination since many of the large animal operations affected by flooding are located in southeastern counties with naturally high water tables.   Although G.S. 106-403 requires a burial site to be at least 300 feet from a  “flowing stream or other public body of water”, the law doesn’t expressly take groundwater impacts into consideration.

Dam failures and landslides.  DEQ’s Division of Energy, Mineral and Land Resources responds to dam safety emergencies and oversees repair/reconstruction work under the state’s Dam Safety Act. The same division has a role in responding to landslides. Heavy rains associated with Florence caused several landslides in mountain counties that closed roads, but thankfully did not cause any deaths.

Rebuilding.  Looking beyond storm response and cleanup, rebuilding in coastal areas becomes a significant permitting challenge for state water quality and coastal management agencies.  Once floodwaters recede,  staff in the state Division of Coastal Management (DCM) helps FEMA do initial damage assessments to distinguish repairable buildings from those that have more than 50% structural damage and require reconstruction. Some number of the  heavily damaged/destroyed  structures will  raise  policy issues about whether or  how to allow rebuilding.  Older, “nonconforming”  structures that did not meet current building code, zoning or coastal development rules before the storm may  not be able to meet those standards to rebuild.  Some of the most difficult post-storm reconstruction decisions involve buildings that cannot meet current stream buffer or oceanfront setback requirements.

DCM uses special emergency permits developed in response to past storms to allow routine reconstruction to begin quickly. The emergency permits cover reconstruction of buildings and accessory structures (such as docks) that can be rebuilt in their previous location and within the same footprint.

Update note: The original blogpost has been revised to clarify that the dam between Sutton Lake and the Cape Fear River breached rather than the coal ash pond.

Constitutional Amendment Update

September 16, 2018. On August 24, 2018, the N.C. legislature reconvened to change two of the proposed constitutional amendments on the November ballot. This blogpost concerns one of the two, House Bill 913  (Bipartisan Ethics and Elections Enforcement),  discussed in an earlier blogpost.   H 913 proposed to amend the Constitution to change the method for appointing members of the State Ethics and Elections Board, but also gave the legislature power to appoint the members of all other state boards and commissions.

Governor Cooper challenged H 913  and another proposed constitutional amendment concerning the method for filling  judicial vacancies (Senate Bill 814). On August 22, 2018, a three-judge panel issued an order in the Governor’s favor and barred the printing of ballots showing the two  amendments as described in the bills. Rather than appeal the court’s order, the legislature reconvened for a brief special session and adopted revised versions of both amendments.

The legislature revised the commission appointment bill (now Session Law 2018-133)  to eliminate provisions affecting appointments to all state boards and commissions. As a result, the constitutional amendment that will appear on the November ballot will not affect appointments to commissions like the Environmental Management Commission  with responsibility for environmental standards. Consistent with the N.C. Supreme Court decision in McCrory v. Berger, the Governor will continue to appoint a majority of those commission members. The proposed  amendment now only deals with appointments to the State Board of Ethics and Elections Enforcement.

A note on what remains of the constitutional amendment:  The amendment continues an ongoing legal battle between the Governor and the legislature over appointments to the state Ethics and Elections Enforcement Board.  Until 2017, an  Ethics Board enforced state ethics laws and a separate Elections Commission provided election oversight. The Governor appointed all of the members of the Ethics Board and a majority of the members of the Elections Commission. In 2017, the legislature made a first attempt to limit the Governor’s authority  by adopting legislation combining the two into a single board and limiting the Governor’s appointment authority by requiring appointments to be made from a list of nominees identified by legislators.  Governor Cooper sued to challenge those changes as unconstitutional.  The proposed constitutional amendment would circumvent legal challenges by establishing the appointment process for the Ethics and Election Enforcement Board in the Constitution. The proposed amendment reduces the size of the combined board from nine to eight.  All of the members would be appointed by legislative leaders, equally divided between the majority and minority parties.

Constitutional Amendments

August 1, 2018. The General Assembly drafted six proposed amendments to the N.C. Constitution that will be on the November ballot for voter approval (or not). Two of the proposed amendments could affect environmental and natural resource policy.

Appointments to boards and commissions. House Bill 913  (short title: Bipartisan Ethics and Elections Enforcement) proposes to amend the Constitution to give the General Assembly more power to appoint members to state boards and commissions. Notwithstanding the bill title, the amendment could affect the makeup of every state board and commission —  including those responsible for environmental policy.

In North Carolina, citizen commissions — made up of unpaid volunteers rather than state employees — have a significant role in environmental policy. Commissions adopt most of the environmental rules enforced by the Department of Environmental Quality (DEQ). Some of the important environmental commissions: the Environmental Management Commission (water quality, air quality, waste management rules); Coastal Resources Commission (rules regulating coastal development and protecting public access to beaches and coastal waters); Marine Fisheries Commission (regulation of commercial and recreational fishing); and Oil and Gas Commission (regulation of oil and gas exploration and development).

Historically, laws creating commissions gave the Governor power to appoint all or a majority of the members.  But in recent years, the General Assembly has tried to exercise greater control  over some commissions by increasing the number of legislative appointees. In 2015, former Governor Pat McCrory  sued the General Assembly over laws giving the legislature power to appoint a majority of three  environmental commissions — the Coal Ash Management Commission, Mining Commission and Oil and Gas Commission. The governor argued the laws giving the legislature power to select a majority of  commissioners violated the N.C. Constitution’s requirement for executive, legislative and judicial powers to  be entirely separate. The N.C. Supreme Court ruled in the governor’s favor.  An earlier post  discusses the 2016 decision in McCrory v. Berger, which held that too much  legislative control over appointments violated the N.C. Constitution’s “separation of powers” clause by interfering with the governor’s constitutional responsibility to manage those executive branch agencies.

House Bill 913 responds to both the McCrory v. Berger decision and a more recent  N.C. Supreme Court decision, Cooper v. Berger,  striking  down a law similarly limiting the Governor’s power to appoint members to  a combined State Board of Elections and Ethics Commission. Section 1 of House Bill 913 would amend the Constitution to allow legislative leaders to appoint all of the members of the new Board of Ethics and Elections Enforcement.  But other sections of the bill propose broader amendments to the N.C. Constitution’s separation of powers clause and to the Governor’s Constitutional powers to give the legislature unbounded authority to determine  how appointments are made to all boards and commissions.

The new language seems intended to sidestep the McCrory v. Berger decision by inoculating the legislature against a separation of powers challenge based on legislative appointment of all or a majority of the members on an executive branch commission. Section 2 of House Bill 913 proposes to directly amend the separation of powers clause in the N.C. Constitution (Article 1, Sec. 6). The language of the amendment appears below.  Part (1)  below is the existing constitutional language; the underlined language in part (2) would be added if the amendment is approved:

“Sec. 6. Separation of powers.
(1) The legislative, executive, and supreme judicial powers of the State government shall be forever separate and distinct from each other.
(2) The legislative powers of the State government shall control the powers, duties,responsibilities, appointments, and terms of office of any board or commission prescribed by general law. The executive powers of the State government shall be used to faithfully execute the general laws prescribing the board or commission.”

Section 4 of House Bill 913  proposes to also amend Article III, Section 5 of the N.C. Constitution to  limit the governor’s executive power over commissions by making those powers subject to the legislature’s authority to determine how commission members will be appointed.

The constitutional amendment would not directly alter appointments to any state commission other than the Board of Ethics and Election Enforcement. But the broad change to the separation of powers clause could free the General Assembly to change laws governing other commission appointments in the future to give the legislature all or a majority of appointments.

Hunting and fishing. Senate Bill 677 (short title Protect Right to Hunt and Fish) proposes to add a new Section 38 to Article 1 the N.C. Constitution to protect the right to hunt and fish:

“Sec. 38. Right to hunt, fish, and harvest wildlife.
The right of the people to hunt, fish, and harvest wildlife is a valued part of the State’s heritage and shall be forever preserved for the public good. The people have a right, including the right to use traditional methods, to hunt, fish, and harvest wildlife, subject only to laws enacted by the General Assembly and rules adopted pursuant to authority granted by the General Assembly to (i) promote wildlife conservation and management and (ii) preserve the future of hunting and fishing. Public hunting and fishing shall be a preferred means of managing and controlling wildlife. Nothing herein shall be construed to modify any provision of law relating to trespass, property rights, or eminent domain.”

The amendment  would allow regulations to protect species and maintain fish and wildlife populations for future harvest, but those would seem to be the only constitutionally protected types of regulation other than “laws concerning trespass, property rights or eminent domain”. The  limit on adoption of other types of hunting and fishing regulation  appears to apply to laws enacted by the General Assembly as well as  rules adopted by state agencies and local government ordinances. The impact of the constitutional amendment could be significant since the  language does not allow for other common types of fishing and hunting regulation such as:

♦  Public safety regulations. State laws and local ordinances regulating hunting  for protection of public safety — such as restrictions on hunting within city limits or hunting close to  houses and schools — could be unconstitutional under the amendment.  The legislature rejected a floor amendment that would have added language allowing for public safety regulation of hunting and fishing.

♦ Regulation to protect fish and wildlife habitat. The amendment may also raise questions about the constitutionality of  regulations affecting  gear used by fishermen if the purpose of the regulation is to protect habitat (such as submerged aquatic vegetation or salt marshes) rather than fish or wildlife species.

♦ Regulation of hunting and fishing methods. A number of state laws and wildlife regulations  limit certain types of hunting; time of day; the nature and use of traps; or put other restrictions on hunting activities.  For example, Wildlife Resources Commission rules restrict use of  dogs in certain hunts. A number of counties have additional local laws regulating use of lights in hunting;  imposing county-specific time of day restrictions; setting standards for traps; etc. It isn’t clear that those kinds of regulations would be constitutional under the proposed amendment since they don’t obviously fit within the two categories of constitutionally protected regulation. It also isn’t clear how a decision about the constitutionality of  regulations would be affected by the amendment language specifically (but not exclusively) protecting  “traditional methods” of hunting and fishing.

The vote. These two proposed constitutional amendments and four additional amendments on other subjects will appear on the November ballot. Each amendment will require the approval of a majority of voters to pass.

Note: This blogpost has been corrected to note that there will be six (rather than five) proposed amendments to the N.C. Constitution on the November ballot.

2018 Environmental Legislation Part 2: Environmental Bills

July 28, 2018.  In addition to the environmental policy changes in the budget, several  bills amended environmental laws. Among the more significant changes:

Stormwater. Sec. 14 of House Bill 374  (2018 Regulatory Reform Act) directs the Environmental Management Commission  to study delegated local stormwater programs to identify: 1. local governments that enforce requirements exceeding those in state law, including requirements for inspection and maintenance of stormwater systems; and 2. those that since August 1, 2015 have taken enforcement actions based on requirements under a Total Maximum Daily Load (TMDL) calculation or NPDES permit that exceed the requirements in state law.

When a water body chronically violates a water quality standard, the  Clean Water Act requires a limit on discharge of the problem pollutant to eliminate the  water quality violation –  a “total maximum daily load”. The TMDL caps  total releases of the pollutant to the impaired water body. Each wastewater treatment plant or industry that discharges wastewater directly or indirectly to impaired waters receives a permit limit  for the pollutant;  the sum of all the permitted discharges  cannot exceed the cap.  In areas like the Jordan Lake watershed,  stormwater rules have been used as an additional tool for meeting a TMDL for nutrient pollution  by also reducing the release of nutrients in runoff.  The H374 provision refers to this use of stormwater regulation as part of a larger TMDL for nutrient pollution and enforcement of the TMDL  through a federal stormwater discharge permit.

The provision is the most recent  in a series of legislative efforts to limit the scope of local as well as state stormwater requirements. It’s interesting that the  bill specifically targets  local requirements for inspection and maintenance of stormwater systems that may be required to comply with state and federal law. It isn’t clear how local  enforcement actions “based on requirements under a Total Maximum Daily Load (TMDL) calculation or NPDES permit” could exceed  requirements in state law since the state develops the TMDLs and issues the NPDES  permits.

Coastal Stormwater. Sec. 16 of House Bill 374 in effect creates a new coastal stormwater exemption for older subdivisions. State coastal stormwater rules require residential subdivision development  near sensitive coastal waters to  control stormwater  to reduce pollutant runoff.  The stormwater management plan often includes limits on the amount of paved or built-on area in the subdivision to provide adequate natural area to absorb runoff. The impervious surface limits appear in the developer’s  stormwater permit for construction of the subdivision.  Once the subdivision has been significantly built out,  the developer typically transfers ownership and control over all common areas — including the stormwater system —  to a homeowners’ association.  To insure stormwater standards continue to be met, coastal stormwater rules require the developer to reflect those impervious surface limits in the development’s restrictive covenants. People who buy or build in the subdivision are bound by the restrictive covenants, which can be enforced by the HOA or the state. There have been a few sympathetic situations in the past where a developer turned a subdivision that was already in violation of its stormwater permit over to the HOA, leaving the HOA to contend with an immediate enforcement action.  But there have also been situations where subdivision residents added impervious surface (expanded parking areas, storage buildings, home additions) in violation of the restrictive covenants after the developer left the picture.

The new provision applies to subdivisions platted 20 or more years ago without regard to when construction in the subdivision actually began. Under H374, a  subdivision with excess impervious surface  will be “deemed to be in compliance” with the impervious surface limits in state stormwater rules if the HOA didn’t receive a notice of  non-compliance at the time responsibility for the system transferred from the developer to the HOA.

The provision may have unintended consequences. First,  it’s not clear how the provision will affect enforcement actions against a developer who violated the stormwater permit during construction since the law “deems” the subdivision to be in compliance. The provision also allows a subdivision to retain impervious surface added long after transfer of ownership from the developer in violation of subdivision restrictive covenants. In these older platted subdivisions, H374 deems all excess impervious surface added before  January 1, 2017 to be in compliance with the stormwater rules.

Swine waste management. The 2018 Farm Act, Senate Bill 711 greatly limits nuisance lawsuits against swine operations. See an earlier post for an in-depth discussion of S711.  The new law only applies to nuisance claims filed after S711 became law, so it does not affect dozens of nuisance claims already filed on behalf of people living near swine farms. Although clearly a response to the swine farm nuisance lawsuits, the new restrictions on nuisance claims apply to any kind of agricultural or forestry operation.

Environmental Legislation 2018: Part 1 – The Budget

July 9, 2018. An overview of 2018 state budget provisions affecting the environment:

♦ The budget provides funds to monitor water bodies for GenX and other per- and poly-fluoroalkyl  substances (PFAS). The budget bill also gives the Governor a new authority to stop releases of  PFAS albeit one not very practical to use.  See an earlier post for a detailed description of the GenX budget provisions.

♦ The budget directs up to $2 million to Speedway Motor Sports for environmental remediation at Charlotte Motor Speedway. The state funding will need to  be matched 2:1 by funding from other sources.   Half of the revenue from N.C.’s solid waste disposal tax goes to assess and cleanup contamination associated with landfills that pre-dated 1983 environmental standards for waste disposal; one of these “pre-regulatory” landfills is located in the infield of  Charlotte Motor Speedway.  The law governing the remediation program requires DEQ  to prioritize work on the old landfill sites based on risk to human health and the environment and it isn’t clear how the Charlotte Motor Speedway  ranks under the priority factors.  The budget provision may be intended to accelerate  (sorry!) remediation of the Speedway landfill  by immediately providing state funding, but conditioned on Speedway Motor Sports providing matching funds which  is not normally required under the remediation program. 

♦ The 2018 budget continues the legislature’s recent practice of bypassing the infrastructure  grant program in DEQ to direct water and sewer funds to specific projects.  In the normal grant process, DEQ and the State Water Infrastructure Authority allocate infrastructure funds under priority criteria that take into consideration a number of environmental, public health and financial factors. The budget bill diverts $2.5 million from the competitive  grant program  to projects in the towns of Richlands, Mount Airy,  Bath and Trenton. The amount per project varies from $201,000 to over $1 million.

♦ The budget directs $5 million dollars to Resource Institute, Inc. “to explore opportunities for the development and implementation of emerging techniques that can extend the useful life of beach nourishment projects”. Resource Institute, Inc., a Winston-Salem based non-profit, describes its mission as “[enhancement of] America’s natural resources by restoring streams, rivers and wetlands”. information  on the Resource Institute’s website indicate the nonprofit  largely assists in connecting restoration project sponsors with potential funding sources and planning assistance; the Institute does not appear to directly work on design and construction of restoration projects. 

♦ The  budget bill revisits a 2017  budget provision controlling use of funds from the U.S. Environmental Protection Agency’s  (EPA) settlement of a Clean Air Act enforcement case against  Volkswagen (VW). Under the consent agreement, N.C. could receive over $90 million for air quality projects.  The  2017 state  budget required legislative committee review of DEQ’s proposed plan for use of the money and legislative appropriation of the funds to DEQ through  the state budget process.  (As a practical matter,  that means the legislature would have to act before DEQ could spend any funds designated for North Carolina by the national VW settlement trustee.) The 2018 budget bill adds more detail by directing the State Treasurer to hold the VW funds in a special account until  appropriated by the legislature.  The 2018 provision also adds a new sentence prohibiting  DEQ from releasing  any funds to a third party until the legislature has appropriated the money.  It isn’t clear whether the new sentence requires an individual appropriation for each project (and recipient) under the plan or was simply intended to restate the general requirement for  a lump sum appropriation to DEQ through the state budget process. The difference could be significant since the national VW  settlement trustee must be  assured that DEQ has authority under state law to use the VW settlement funds for the purposes described in the state plan. Some environmental organizations have expressed concern that the provision may undermine N.C.’s eligibility  to receive  VW settlement funds if it is interpreted to mean the legislature could refuse funding to an intended recipient, undermining DEQ’s legal authority to carry out the plan.

♦ The General Assembly again delayed implementation of nutrient reduction rules in the  Falls Lake and Jordan Lake watersheds; both lakes have impaired water quality due to excess nitrogen and phosphorus from wastewater discharges and runoff.   The legislature has repeatedly postponed full enforcement of nutrient reduction rules adopted by the Environmental Management Commission in  2009 (Jordan Lake) and 2011 (Falls Lake). The 2018 budget provision adds at least another year to previous delays in implementation of the Jordan Lake rules; the suspended rules would remain in limbo until completion of a new rulemaking effort that may not begin until 2020.  The provision extends the timeline for beginning work on new Falls Lake rules until 2024 and suspends enforcement of the later stages of the existing Falls Lake rules during that time.  A number of previous posts  —  going back to 2013 —  provide some history of legislative intervention in the regulation of nutrient discharges to the two reservoirs.

♦ Under the disaster relief section of the budget, the legislature provides $3.6 million to restart a program to map landslide hazard areas in western N.C.  The legislature had defunded the landslide mapping program several years ago. (See an earlier post for background on the political death of the landslide mapping program.)

GenX in the State Budget

June 18, 2018. Instead of acting on the GenX bill described in an earlier post, the legislature inserted GenX provisions into the state budget bill (Senate Bill 99). The provisions adopted in the budget differ from those in House Bill 972/Senate Bill 724  in several key ways:

♦ The budget provision expressly makes a Governor’s order appealable through an administration hearing. (The earlier post noted that a Governor’s order would likely be appealable under the state’s Administrative Procedures Act even if the bill did not specifically mention appeal rights.)

♦ Language has been added to c;larify that the grant of new enforcement power to the Governor does not prevent DEQ and the Environmental Management Commission from also using their existing enforcement power under other state laws to address PFAS. The new language eliminates confusion about the impact on DEQ’s ongoing enforcement cases against Chemours and confirms that DEQ can still go directly to court in future enforcement cases if necessary.

♦ The budget provision reduces the funds appropriated to the UNC Environmental Policy Collaboratory from $8 million to  just over $5 million and limits the scope of funded water quality research. Instead of supporting non-targeted monitoring for a broad range of unregulated pollutants, the funds could only be used for monitoring of PFAS.

♦ Funding for monitoring of  Cape Fear Public Utility Authority’s water supply has similarly been limited to monitoring for PFAS.

♦ The budget dropped funding  for additional resources in the Department of Health and Human Services to evaluate health risks associated with unregulated  water contaminants. The earlier House and Senate GenX bills had earmarked over $500,000  for DHHS; under the budget bill, DHHS receives no funding for toxicology and epidemiological study of contaminants in North Carolina’s water supply sources.

Funding proposed for DEQ did not change. DEQ  will receive $1.3 million in new funding related to PFAS contamination, although new staff positions created with the funding must be time-limited rather than permanent. The budget also provides funding for a mass spectrometer to be used in analyzing water samples for PFAS. The budget provision, however,  specifies a particular type of mass spectrometer that does not have as much technical capacity to identify other unregulated contaminants as DEQ had recommended.

The budget provision continues to require a person (or company) responsible for PFAS contamination to provide an alternative water source to the well owner.  The responsibility only exists if releases of the pollutant caused the well contamination. Requiring a causal connection between the pollution release and the well contamination follows the approach taken under existing state groundwater protection rules.  It is different from  2016 coal ash legislation that required Duke Energy to provide alternative water supply to well owners within a 1/2 mille perimeter around every coal ash pond even if coal ash disposal had not been proven to be the cause of the well contamination.

What do the changes mean?  Since the new Governor’s authority can trigger an administrative appeal  (which may  take a year or more to reach a final decision), it doesn’t provide a more direct or effective remedy than DEQ’s existing authority to request a court order. As a result, it isn’t likely the new authority will be used often if at all.

Narrowing the focus of the water quality monitoring funded through the UNC Environmental Policy Collaboratory to PFAS has a mixed effect. Investigation of  PFAS contamination will receive more resources, but none of the appropriated funds will go to identification of other unregulated contaminants in N.C. water supplies.

Removal of the DHHS funding leaves the department with extremely limited staff resources to evaluate human health risk when regulatory agencies or researchers identify a new unregulated contaminant in a water supply source.

Status. Governor Cooper vetoed the budget bill on several grounds. The House and Senate have overridden the veto, allowing the bill — including the revised GenX provisions — to  become law.

GenX Legislation and Unintended Consequences

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.

New Legislative Activity on GenX

January 12, 2018.  When the N.C. General Assembly convened on January 10, the House unanimously adopted House Bill 189  – a bill described by House members as a first step toward improving the state response to unregulated water pollutants.

GenX and the path to House Bill 189. EPA began studying the effects of perfluorinated compounds (used in products such as firefighting foam, water repellants and Teflon) more than fifteen years ago.  EPA worked with chemical companies to phase-out the two most common compounds, perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), because of concerns about persistence in the environment and human health risk.   In 2009, Dupont began manufacturing another type of perflourinated compound, GenX, as a replacement for PFOA. The Chemours Company now operates the GenX manufacturing facility in Fayetteville North Carolina which is  located upstream of drinking water intakes for Cape Fear Public Utility Authority (serving Wilmington/New Hanover County) and several smaller water systems.

GenX has uncertain health and environmental risks and no federal standards exist to guide state permitting and enforcement action. EPA has not adopted a drinking water standard for GenX, identified the compound as a priority water pollutant, or set effluent guidelines for discharge of the chemical under a Clean Water Act wastewater discharge permit (the National Pollutant Discharge Elimination System or “NPDES” permit).  EPA has indicated a  concern that GenX may share some of the environmental and health risks associated with PFOA and PFOS.  GenX is one of many “emerging” or “unregulated” contaminants that can be released to the environment.   An earlier blogpost described the major federal environmental laws touching on manufacture, use and discharge of chemical compounds like GenX and the gaps in those laws.

The path to House Bill 189 began with the 2016 discovery of GenX  in drinking water systems using the Cape Fear River as a water supply source. Later, GenX was also found in private drinking water wells near the Fayetteville facility. Public concern about the health effects of GenX and the adequacy of federal/state regulation of contaminants like GenX created pressure for legislative action.  In August 2017,  the General Assembly  appropriated funds to Cape Fear Public Utility Authority and to UNC-Wilmington to study GenX and water treatment options. The legislation, described here,  made no substantive changes to state law and allocated no funding to programs in the Department of Environmental Quality (DEQ) and the Department of Health and Human Services (DHHS)  responsible for enforcing water quality standards and establishing health guidelines for exposure to environmental contaminants.   The  state House of Representatives, however,  created a Select Committee on River Water Quality to further study the issue of unregulated contaminants between legislative sessions. The substance of House Bill 189 came out of the House select committee’s work.

House Bill 189. The bill does not break new ground in water quality law,  but directs DEQ to undertake several studies that could lead to recommendations for future legislation on unregulated contaminants. The bill also proposes to allocate additional state funds to the issue. Although prompted by GenX,  the bill’s provisions apply more broadly to GenX and other unregulated contaminants. By section:

Sec. 1 Science Advisory Board review of the DHHS process for setting health goals for contaminants and new health goals set by the department. In 2017, DEQ reconstituted the department’s existing Science Advisory Board to provide additional expertise in setting  health goals for exposure to unregulated contaminants. Health goals represent the concentration of a contaminant considered safe for humans based on studies of both immediate, acute effects (such as illness, organ damage, skin irritation or respiratory distress) and long-term effects (primarily increased cancer risk).  H 189 supports DHHS consultation with the Board on health goals and goes further to require  DHHS to notify the Science Advisory Board before issuing a new health goal. The bill then focuses on the process for setting health goals, directing the Science Advisory Board to study the DHHS process and make recommendations. Legislative interest in the process for setting health goals may have arisen from recent controversies over use of health goals to advise property owners on the safety of well water affected by contaminants associated with coal ash. Both legislators and industry representatives have sometimes questioned the scientific basis for a health goal as well as the appropriateness of using a non-regulatory health goal to  guide regulatory decisions such as groundwater cleanup and the obligation to provide alternative water supply. See earlier posts concerning controversy over health goals for contaminants associated with coal ash here and here.

Sec. 2  A study of the Clean Water Act permitting program for wastewater discharges. The bill directs DEQ to study specific issues in the NPDES permitting program: 1. Whether NPDES permit applications require sufficient information about pollutants in the wastewater to be discharged;  2. Monitoring, sampling, and analytical requirements for wastewater dischargers; 3. The process for setting standards or discharge limits for contaminants when there is not an existing state or federal standard; and 4. The timeliness and thoroughness of permit reviews.  A report must be provided to the legislature by April 1, 2018. Parts  2 and 3 of the study likely reflect business/industry interest in the process for setting NPDES  permit conditions. That could lead into a debate over how much DEQ can require through individual permit conditions versus going through a rule making process to set generally applicable permit standards.

Sec. 3. Interstate exchange of information about pollutants entering North Carolina rivers.  DEQ has been directed to better coordinate interstate exchange of information about pollutants entering river basins that  North Carolina shares with neighboring states (West Virginia, Virginia, South Carolina, Georgia, and Tennessee).

Sec. 4. Notice of illegal discharges and the presence of unregulated contaminants in surface waters. This section of the bill creates another DEQ study; this study would focus on: 1.  The adequacy of existing  laws requiring notice of an illegal discharge of untreated waste or wastewater; and 2.  DEQ’s process for informing the legislature and the Environmental Management Commission of the presence of an unregulated contaminant for which no state or federal discharge standard has been set. A report must be provided to the legislature by April 1, 2018.

Sec. 5. Water system liability for the presence of an unregulated contaminant in drinking water. The School of Government at UNC-CH will report to the legislature on the potential civil liability of a water system that distributes water contaminated by a pollutant for which no discharge standard has been set under state or federal law and any difference in liability exposure between public and private water utilities.

Sec. 6. Appropriation of funds to support activities related to unregulated contaminants. H 189 proposes to appropriate just over $1.3  million in one-time funding for  water quality sampling; NPDES permitting; air quality sampling and analysis of atmospheric deposition of GenX; and sampling of groundwater, soil and sediment for GenX and other emerging contaminants. The money would come from unused funds originally appropriated for other purposes, including pilot nutrient management projects in the Jordan Lake watershed.

Sec. 7 Additional funding.  The House proposes to appropriate an additional $479,736 in recurring funds from the state’s General Fund to DEQ for water quality sampling and analysis related to GenX and other unregulated contaminants and $537,000 from the state’s Contingency and Emergency Fund for analytic equipment (presumably a mass spectrometer) to evaluate emerging contaminants.

Impact of H 189. The bill does not set any new legal standards for discharge of unregulated contaminants to North Carolina waters or expand the existing authority of DEQ and DHHS to respond to unregulated contaminants. Instead, the bill mandates several studies that could lay the groundwork for future legislative action. House members stressed that the bill represents just a first step toward improving state response to unregulated contaminants.

Aside from the $537,000 earmarked for the mass spectrometer, the appropriations proposed in H 189 essentially offset another  $1.8 million reduction in the DEQ budget for the 2017-2019 biennium. As a result, the appropriations do not represent an actual increase in DEQ’s budget from 2015-2017 levels. An earlier blogpost noted the impact of past budget cuts on the water quality program.   DEQ  had a two-year backlog of wastewater discharge permit renewals in December 2016 — before the reductions required in the most recent budget. The Chemours permit to discharge wastewater to the Cape Fear River from the Fayetteville Works fell in the category of permits overdue for review and renewal. The GenX controversy has also shown a brighter light on the additional burden on the state water quality program — in expertise, research capability, and analytical equipment — to address a contaminant for which no federal standard has been set.

So the appropriations in H 189 are helpful in offsetting additional DEQ budget cuts, but do not provide a net increase in funding. The appropriations also provide no additional resources to DHHS, which has significant responsibility for assessing and advising on the health impacts of an unregulated contaminant.

Senate response. The Senate adjourned without considering House Bill 189. A statement from Senate President pro tem Phil Berger criticized the bill as ineffective and seemed to oppose the appropriations:

“[H 189] leaves North Carolina taxpayers holding the bag for expenditures that should be paid for by the company responsible for the pollution, fails to give [the Department of Environmental Quality] authority to do anything they can’t already do and authorizes the purchase of expensive equipment that the state can already access for free.”

It isn’t clear which expenditures in H 189 the Senate wants to shift to the polluter or how that could be done. Most of the H 189  appropriations cover basic state water quality monitoring, permitting and compliance work.  NPDES permit fees cover a percentage of permitting costs, but those fees  do not vary based on a facility’s violation history.  The legislature has also tended to view fee increases very skeptically out of concern for the impact on business and industry.  A person responsible for illegally contaminating surface water or groundwater can be held financially responsible for cleanup costs and steps to minimize health impacts (such as providing bottled water to the owner of a contaminated well) , but state  law does not currently require a violator to pay any additional amount toward support of basic regulatory activities.

Senator Berger’s statement indicated the Senate may take up legislation related to GenX in the next regular legislative session that begins in May.

The Legislative Response to GenX

September 10, 2017. At the end of its most recent one-week session, the N.C. General Assembly added GenX  provisions to an existing bill,  House Bill 56  (Amend Environmental Laws),  and passed the bill with little discussion.  Section 20 of H 56:

  1. Amends the state budget to give $185,000 to Cape Fear Public Utility Authority (CFPUA) — $100,000 to study water treatment methods to remove GenX from the water supply and $85,000 for ongoing monitoring of water withdrawn from the Cape Fear River.
  2. Allocates $250,000 to UNC-Wilmington to “identify and quantify GenX and measure the concentration of the chemicals in the sediments of the Cape Fear River, the extent to which the chemical biodegrades over time or bioaccumulates within local ecosystems, and what risk the contaminant poses to human health”. The provision requires a final report from these studies by April 1, 2018.
  3. Directs UNC-Chapel Hill to develop a proposal to (i) identify and acquire digital environmental monitoring and natural resource data and digitize analog data;  (ii)  create an online, searchable public database of  water quality permits, permit applications, and supporting documents; and (iii)  create a system for electronic filing of permit applications. The provision also directs UNC-CH to study the feasibility of housing the database at UNC rather than with the permitting agencies in the Department of Environmental Quality (DEQ).
  4. Requires DEQ to report back to the legislature if the department has not issued a Notice of Violation to any person or company for discharge of GenX into the Cape Fear River by
    September 8.

The bill does not allocate any additional funding to either DEQ or the Department of Health and Human Services (DHHS). Governor Cooper had requested $2.5 million for the two departments to provide more resources for water quality monitoring; inspection of permitted facilities; permitting (and particularly elimination of the backlog in permit renewals); and development of health advisories for unregulated contaminants. Instead, DEQ  faces a $1.8 million budget reduction for 2017-2018, continuing a trend of repeated cuts to the department’s budget over the last 10 years. (See an earlier blogpost for the effect of those budget reductions.)

How will House Bill 56 affect efforts to address GenX?  The bill supports efforts by Cape Fear Public Utility Authority to identify treatment systems capable of removing GenX  from the water; increase water quality monitoring; and learn more about the impact of  GenX. Much of the funding would offset the cost of efforts already underway by CFPUA.

Cape Fear Public Utility Authority had begun pilot testing use of granular activated carbon and ion exchange systems to remove  GenX from the water several weeks before. The $100,000 appropriation to study water treatment alternatives could reimburse CFPUA for past and future expenses incurred in the pilot testing. The funding would not be sufficient to actually upgrade water treatment in the water systems affected by  GenX contamination. 

Cape Fear Public Utility Authority had also entered into a one-year  contract  with UNC-Wilmington for just under $65,000  to analyze raw water and treated water samples  for additional perflourinated compounds  and to advise the utility on water treatment. House Bill 56 does not specifically describe the intent of the $85,000 appropriation for water supply monitoring, but the funds could cover the existing CFPUA/UNC-W contract. (The water quality monitoring would supplement, but not replace,  monitoring done by the Department of Environmental Quality.)

The $250,000 in funding directed to UNC-Wilmington to study GenX  would support new research and could generate important information about persistence of GenX in the environment and public health risk. The 6-month timeframe for the study, however, allows only  a very short  time to gather data and reach conclusions.

The UNC-Chapel Hill feasibility study for a digitized public database of water quality permit information would be the first step in a very long term project.   Creating a permitting database outside the permitting agency will raise a number of  legal, practical, policy and funding issues:  how to protect confidential information in permit applications (such as trade secrets);  cost of digitizing analog data and creating a new database; and the complications of maintaining  a database (or databases) to meet the very different needs of permit writers and the public.  Whatever the outcome of the study, the benefits of increased public access to permitting databases would likely be far in the future and require funding not provided in House Bill 56. [Note: Currently, anything in the permit file that is not protected by state confidentiality laws can be obtained through a public records request.]

What has been left undone?  None of the funding in the bill would go toward keeping GenX and other unregulated contaminants out of the Cape Fear River and other water supply sources. Only state and federal regulators can adopt water quality standards for the Cape Fear River and set permit limits for the discharge of GenX and other emerging contaminants to the river; local water systems do not have that power.

The bill does not address the lack of resources in DEQ and DHHS to evaluate the health and environmental risk of compounds like GenX before contamination of a water supply causes a crisis. GenX issue is only the most recent of several controversies over unregulated contaminants in North Carolina water supplies. Just within the last four years, the state has faced similar concerns about hexavalent chromium in drinking water wells and 1,4 dioxane in the Haw River. In each instance, state agencies had to develop guidance on safe levels of the contaminant in the absence of a clear federal standard and decide how to use the risk analysis in state permitting and enforcement decisions.

The weakness of the GenX response in House Bill 56 is that it reacts to water supply contamination without taking steps to prevent it. Once a contaminant has entered a water supply source, water systems — and their customers — shoulder the financial burden of using technology to reduce contamination to safe levels through water treatment. The bill also focuses narrowly on GenX rather than the broader problem of emerging contaminants affecting state water supplies. Nothing in the bill strengthens the state’s ability to detect other emerging contaminants in water supply sources; enforce water quality permit conditions; or assess health and environmental risk.

Next steps. As of today, the Governor had not yet signed or vetoed House Bill 56; the Governor’s decision could be affected by any number of provisions in the bill beyond those responding to GenX.  DEQ has taken an enforcement action against Chemours based on both discharge to GenX to the Cape Fear River and detection of GenX in groundwater on the site. (More about the enforcement action in the next blogpost.)

The Laws in the Background of the GenX Issue

August 21, 2017.  In  June, residents of southeastern North Carolina learned of a previously unknown contaminant in the Cape Fear River;  a study undertaken by an N.C. State University researcher documented the presence of the perflourinated compound  known as “GenX” in a report published in December 2016. The river provides drinking water for Wilmington-New Hanover County and other water systems.

The U.S. Environmental Protection Agency (EPA) began studying the effects of perfluorinated compounds used in firefighting foam, water repellants, Teflon, and other products more than fifteen years ago.  EPA worked with chemical companies to phase-out the two compounds most commonly used, perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), because of concerns about persistence in the environment and human health risk.  In 2000, 3M Corporation announced a phaseout of PFOS. Under a 2006 agreement with EPA, eight companies committed to phase out PFOA by 2015. In 2009, Dupont began manufacturing GenX,  a chemically distinct perflourinated compound,  at its Fayetteville plant as a replacement for PFOA. (The Chemours Company, a Dupont spin-off, now operates the Fayetteville plant.)

The discovery of an unregulated chemical with uncertain health and environmental risks in a water supply source created a high level of concern in the affected communities. It has also drawn attention to gaps in the safety net of federal environmental regulations with implications for all unregulated contaminants in water supplies.  In many ways, the GenX controversy parallels the earlier controversy in North Carolina over hexavalent chromium (a contaminant associated with coal ash) in drinking water wells. In each case, the absence of a federal standard —  or EPA’s failure to update a standard based on current science —  left the state struggling to evaluate health risk and develop an appropriate regulatory standard.

A number of news organizations have provided detailed coverage of the GenX controversy and Cape Fear Public Utility Authority posts key documents and monitoring results online . This post will focus on the key federal laws involved and the  gaps in those laws that the state may need to fill. Although I will use the GenX issue as an example, this blogpost should not be interpreted as an assessment of legal claims or liabilities associated GenX contamination in the Cape Fear River.

Toxic Substances Control Act (TSCA). EPA regulates manufacture and importation of chemicals under the  Toxic Substances Control Act of 1976. Two of the key requirements of the law:

♦ Section 5 requires manufacturers to give  EPA notice before manufacturing a new chemical. (EPA maintains a Toxic Substances Inventory of previously approved chemicals.)  Based on review of information submitted with the notice, EPA may  find the new chemical is “not likely to represent an unreasonable risk” and approve manufacture. But if EPA doesn’t have sufficient information to evaluate environmental and health effects or if the lack of information creates an unreasonable risk of harm, EPA can issue an order requiring additional testing or limiting release of the chemical to the environment. Concern that GenX may have risks similar to those already associated with PFOA and PFOS caused EPA to enter  a 2009 consent order that (among other conditions) required Dupont to effectively eliminate release of GenX in wastewater and air emissions from the  manufacturing operation.

♦ Section 8 of TSCA requires chemical manufacturers and distributors to inform EPA of any information the company obtains that would reasonably support a conclusion that a chemical presents a substantial risk of injury to health or the environment.  In 2005, EPA used Section 8 of TSCA to assess a penalty against Dupont for withholding information the company had on the environmental and health effects of PFOA. That EPA action ultimately led to the phaseout of PFOA and development of alternatives like GenX.

Regulatory Gaps –TSCA covers chemicals manufactured or imported into the United States. It does not apply to a chemical by-product of a manufacturing or industrial process.  The TSCA  consent order for GenX limits release of GenX to the environment by the manufacturer,  but not the discharge of GenX  unintentionally created as a result of an unrelated manufacturing or industrial process. As a result, TSCA can’t address all contaminant sources. The TSCA review process also puts EPA in the position of constantly chasing the next generation of potential contaminants.

Safe Drinking Water Act. EPA has adopted national drinking water standards for 88 contaminants. Public water systems must monitor for those contaminants and insure that   water delivered to its customers meets the national standard for each regulated contaminant. Given the number of compounds used in manufacturing or produced as a by-product of industrial activities, national drinking water standards clearly do not exist for many contaminants. EPA has not adopted a  drinking water standard for GenX or any other perfluorinated compounds. EPA has issued a health advisory for PFOA and PFOS (combined) of 70 parts per trillion based on longterm exposure, but a health advisory is not an enforceable drinking water standard. EPA has also said that the PFOA/PFOS  health advisory does not apply to other perflourinated compounds like GenX.  

EPA continues to study the need for a national drinking water standard for perflourinated compounds.  Under the Safe Drinking Water Act, EPA’s decision will be based on: likelihood the contaminants will be found in drinking water; the health effects; and the technical/economic feasibility of treating the water to reduce any health risk. It isn’t clear whether EPA will propose a drinking water standard for PFOA/PFOS and the decision to develop a standard for next generation alternatives like GenX would be even further in the future.

Regulatory Gaps —  EPA has not adopted a national drinking water standard for every contaminant that may be detected in a water source or in a public water system; some existing drinking water standards do not reflect the most recent science.  In the absence of a drinking water standard, an EPA  health advisory can provide guidance to the states on safe levels but health advisories  do not exist for all contaminants.  Many of the environmental and human health risks associated with PFOA and PFOS have been known for 10-15 years, but EPA has not yet proposed a drinking water standard and only issued a health advisory based on long-term exposure in 2016. In the absence of a national drinking water standard or health advisory, presence of significant levels of a contaminant in water supplies may require the state to develop a benchmark for safe drinking water.

Clean Water Act.  The Clean Water Act protects surface waters like lakes and rivers by requiring a permit to discharge waste to those waters.   National Pollutant Discharge Elimination System  (NPDES) permits allow wastewater treatment plants and industries  to discharge wastewater meeting specific pollutant limits. Like other states, North Carolina has assumed responsibility for issuance of NPDES permits in the state.

EPA has set technology-based wastewater limits for individual categories of industries, including chemical plants. But those limits do not cover all pollutants or every possible waste stream.  In the absence of an existing EPA limit or when faced with a new type of waste stream, the state permit writer must set a limit on a case-by-case basis based on factors set out in the Clean Water Act. That puts responsibility on the state water quality agency to determine the appropriate limits for these unregulated pollutants.

Regulatory Gaps — Existing state and federal water quality standards and guidelines for permitting wastewater discharges do not address every potential pollutant. In the absence of federal effluent guidelines for a particular pollutant, the burden will be on the state water quality permitting agency to look at any existing information on the environmental and health effects to set a permit limit.

The challenge for the state. These federal laws create frameworks for approval of the  manufacture and use of chemicals; release  of chemicals to the environment in wastewater; and protection of  drinking water sources.  But the EPA standards adopted under those laws are not comprehensive and often lag behind the emergence of new contaminants or evolving science on risk.  When an unregulated contaminant affects a drinking water source, the responsibility for dealing with the immediate environmental and public health concerns falls on the state.