Commentary, Environment

Trade secrets and a no-bid contract add to concerns about pouring toxic chemicals in Jordan Lake:

Copper sulfate is one of the chemicals SePro is proposing to use in Jordan Lake to kill algae. (From SePro website)

T omorrow SePro, an Indiana-based chemical company, is scheduled to meet with state environmental regulators and the US Army Corps of Engineers to present a very expensive proposal: Pay us as much as $1.3 million, and we’ll pour toxic herbicides in Jordan Lake in hopes of killing the algae.

But the details of that chemical treatment, which have been viewed skeptically by DEQ and independent scientists, as well as the EPA, could be kept from the public if SePro defines them as trade secrets. Under the state’s Public Records Act, trade secrets are exempt from disclosure if the source documents meet four conditions, most notably that they are marked “confidential” or “trade secret” before a request is made.

Details Jordan Lake chemical treatment could be kept from the public if they are defined as trade secrets Click To Tweet

As NCPW reported on May 25, SePro, through its powerful lobbyist Harold Brubaker, has rammed through a proposal to DEQ that would allow the company to use copper sulfate and phosphorus-lock chemicals to treat algae in Jordan Lake. Independent scientists, as well as those within DEQ and the EPA, emails show, disapprove of these methods because of risks to ecosystems and questions regarding the chemicals’ effectiveness.


A portion of the copper sulfate warning label (SePro website)


O n May 19, NCPW asked DEQ for copies of the draft contracts and proposals that SePro provided to DEQ. Under state law, drafts are public as long as their final versions are as well. (This issue arose in 2016 during the SolarBee fiasco, when a draft report of that experiment-gone-awry was posted on the DEQ website, then removed because it wasn’t the final version.)

NCPW’s request is being reviewed by DEQ lawyers to determine what, if anything, can’t be released — or should be redacted.

There is a precedent for SePro fighting public disclosure of its documents, even in cases in which a public benefit is at stake: test results in treating a drinking water supply or fishing waters, for example.

In a 2003 Florida case, SePro argued that certain documents about an herbicide treatment that it provided to a state agency should not be public. In that case, a competitor, Griffin, LLC, filed a public records request with the Florida Department of Environmental Protection asking for documents containing, among other details, test results showing the effectiveness of SePro herbicides to kill the invasive weed hydrilla in the several of the state’s waterways.

SePro argued that it had provided these documents to Florida DEP only to prove the effectiveness of the treatments. These materials should not be released, SePro said, because they were “entitled to trade secret protection.” However, Florida’s open records laws, like North Carolina’s, require a document to be marked “confidential” or “trade secret” at the time it is provided to a government agency — and before a public request is filed.

SePro didn’t mark those documents in the legally required timeframe. Yet both a lower and an appellate court found partially in favor of SePro. The documents were not released.

I f SePro does indeed play the trade secrets card, at least the contracts should be public record. This is a no-bid contract; SePro is the only company that can “win” it. Based on the way the legislation is worded in the House budget, there is no requirement that the selection of a Jordan Lake treatment go through the usual state contracting process, such as a request for proposals or qualifications that purchasing officials could then evaluate.

This is a no-bid contract to treat Jordan Lake; SePro is the only company that can win it Click To Tweet

The SolarBees agreement was also a no-bid contract, also established in the legislation.

The House budget’s appropriation of $1. 3 million in an enormous amount of money, especially considering the concerns outlined in DEQ transition documents about toxic algae.A transition document is essentially a guidebook for the incoming administration, in this case, between Secretary Donald van der Vaart and Secretary Michael Regan.

In one section, of the transition document, “Equipping the Division of Water Resources to analyze algal toxins.”  DEQ doesn’t have the “resources, equipment or staff to specifically test for cyanotoxins” — toxic algae.

Toxic algae can sicken people, animals and birds that are exposed to it. It can also kill fish en masse, cut into tourism dollars and cost cities and towns more money because their water treatment plants have to work harder to remove the contaminants.

Currently, DEQ sends toxin samples to the Public Health lab at the Department of Health and Human Services. But even that agency can test for only one form of toxic algae — and there are several. It can take a week to receive results.

The Division of Water Resources estimates that startup costs to test for various types of toxic algae would range from $63,000 to $68,000. Annual maintenance costs would run from $37,000 to $51,000. And with the proper equipment and trained personnel, initial results could be available in 24 hours and final verification in 48.

Here’s the math: Spend at least $800,000 in taxpayer money to chemically treat Jordan Lake, the results of which are unknown and potentially harmful. Or enforce the Jordan Lake rules to stem pollution from entering the water. And in the meantime, use that $800,000 to fund a proper algae testing program for DEQ. Even covering initial and annual operating costs, $800,000 would allow DEQ scientists to test for toxic algae — for eight years.

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