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.