Environment

Before state Supreme Court, Duke Energy lawyer calls NC WARN’s solar agreement with church “almost exploitative”

NC WARN installed a 5.25-kilowatt solar system on the roof of Faith Community Church in Greensboro. Duke Energy filed an opinion against the project at the NCUC, alleging NC WARN is acting as a public utility. The case is now before the state Supreme Court. (Photo: NC WARN)

The sun has risen and set nearly 1,100 times since NC WARN installed a small solar power system on the roof of Faith Community Church in Greensboro. And since that time in May 2015, the Durham-based environmental nonprofit has been fined $60,000 by the NC Utilities Commission — the penalty was later rescinded — and has taken its case to the Court of Appeals, which ruled 2–1 against NC WARN. The group appealed and today argued before the state’s highest court that it should be allowed to provide solar energy to the church.

Typical of high-level legal battles, the oral arguments dove deep into the semantical weeds: What defines “public”?

Is NC WARN “selling” the electricity — verboten under North Carolina law? Is it  legally “leasing” the system, or operating in regulatory limbo under a “unique” finance agreement?

Three years ago, NC WARN installed the 5.25-kilowatt system as part of a power purchase agreement in which the church pays 5 cents a kilowatt hour for solar-generated electricity. NC WARN has discontinued the agreement and has provided no power until the court case is settled.

All along, NC WARN has contended that this is a finance agreement, a private contract that should not be meddled with by the utilities commission. “This case is about overregulation,” said Matthew Quinn, attorney for NC WARN. “Is the function of  [this agreement] to sell power or to help Faith Community Church put a solar system on its roof?”

NC WARN contends it’s the latter. Judge Robin Hudson seemed unconvinced. Reading from the Power Purchase Agreement, she noted that the church “will purchase electricity” from NC WARN. “Are we supposed to read this as not selling electricity?” she asked Quinn.

“Yes,” Quinn replied, adding that a previous court ruling considered the “function” of an overall agreement.

For their part, Duke Energy, Dominion Energy and the public staff of the NC Utilities Commission have countered that NC WARN is essentially acting as a utility and must be regulated as such. If private entities go rogue and sell electricity, they argue, it would upend the state’s entire regulatory scheme: In exchange for a near-monopoly, Duke Energy agrees to have its rates set by the utilities commission.

“This is not altruistic,” said Dwight Allen, attorney for Duke Energy. “NC WARN is trying to be a utility.” The agreement with the church, he added, “is almost exploitative.”

Judge Sam Ervin IV served on the utilities commission from 1999 – 2008, and as such, is well-versed in relevant law. He asked Quinn about NC WARN’s view that this is a “test case,” which could push the boundaries of the state’s energy law. “You want this case to be a model for other nonprofits,” Ervin told Quinn. “That it would cover not only this contract but that you will enter into other contracts.”

“It’s our position that it would be unfair to hold NC WARN to contracts that may or not happen,” Quinn replied.

To be a utility, electricity has to be sold to the public, Quinn told the court. And NC WARN’s only customer is the church, not multiple customers. In fact, in his dissent, Appellate Court Judge Chris Dillon wrote that NC WARN wasn’t acting as a public utility because one church doesn’t meet the definition of “public.

Allen told the justices that a prior NC Supreme Court ruling determined that one person, and presumably, an entity like a church, can qualify as “the public.”

To complicate matters, since the original court filing, state lawmakers passed House Bill 589, complex in the way only a utility lawyer could love. With extensive input from many interested parties, including Duke Energy, the bill legalized third-party leasing of solar power, with certain restrictions. And it and provided higher monetary rebates for nonprofits that want to install rooftop systems — including churches, like Faith Community.

Environment

Study finds GenX, other fluorinated compounds still in tap water; NC State scientists to discuss results tomorrow

But hey, you get a free spatula: Teflon and other non-stick surfaces are made using fluorinated compounds, which can harm human health and the environment. (Photo of advertisement: Creative Commons)

GenX and other fluorinated chemicals have been found in most tap water samples collected from 198 homes served by the Cape Fear Public Utility Authority, according to results from a study conducted in New Hanover County late last year by NC State scientists. 

Scientists from the university’s Center for Human Health and the Environment are scheduled to discuss the results during a public forum tomorrow at the Fisher Student Center at UNC Wilmington. Doors open at 6 p.m.

None of the samples exceeded the state’s health advisory goal of 140 parts per trillion for GenX in drinking water. There is no EPA regulatory standard for GenX.

However, concentrations of three of the 17 compounds  — Nafion Byproduct 2, PFMOAA and PFOHxA — are unknown because scientists didn’t have the tools to measure them at the time of the analysis. The EPA is still working on test standards for these compounds. 

The total concentrations of all compounds is also important. For PFOS and PFOA, the EPA has set a health advisory goal of 70 parts per trillion combined in drinking water. 

Scientists collected tap water from each home’s kitchen faucet and tested the sample for 17 fluorochemicals, including GenX, from Nov. 3 to Dec. 8, 2017. Since the water came directly from the homes’ faucets, it had been treated by the Cape Fear Public Utility’s Sweeney plant.

None of the samples from four homes served by the utility’s groundwater plant had detectable levels of GenX.

Scientists shared the results with the utility. Blood and urine results are still being analyzed.

Documents included in each home’s results emphasized that changes in concentration are expected because of varying levels of GenX entering the treatment plant over time. Several factors contribute to that variation. For example, Chemours accidentally discharged GenX from its Fayetteville Works plant several times after the company ostensibly stopped releasing the chemical. 

GenX has also been found in sediment in the Cape Fear River, which, when stirred up by wind, rain or boats, can release the chemical into the water. GenX has also been detected in rainwater not only near the Chemours facility but also at a weather station in Wilmington.

DEQ has issued several notices of violation to Chemours for these illegal discharges, including air emissions; state regulators and the attorney general’s office have also asked a Bladen County Superior Court judge for a permanent injunction to prohibit the company for discharging or emitting GenX into the environment in any form. 

Environment

A second natural gas pipeline proposed for NC would run through Rockingham, Alamance counties

This is a developing story and will be updated this afternoon.

An extension of the controversial Mountain Valley Pipeline has been proposed for North Carolina, potentially opening the door for fracking operations in Rockingham County.

Known as MVP Southgate, the 300-mile pipeline would extend from Pittsylvania County, Va., into Rockingham and Alamance counties.

Once in North Carolina, the pipeline would route for about 50 miles: east of Eden, north of Reidsville and then into Alamance County, near Graham and I-40.

The routing is ominous because western Rockingham County is one of the areas of the state eyed for fracking. Rockingham County, along with Stokes County, sit atop the Triassic Rift Basin, thought to be a source of methane.

Coincidentally, the state’s Oil and Gas Commission recently reconvened after being on hiatus for several years. Headed by Jim Womack, an avid fracking proponent from Lee County, the commission is expected to restart the interest in natural gas exploration in North Carolina. Chatham and Lee county governments both have established moratoria on fracking; earlier this year, Womack said the oil and gas commission would challenge those moratoria.

Like the Atlantic Coast Pipeline, which is running through 160 miles in eastern North Carolina, the MVP starts at a fracked gas facility in West Virginia and routes through Virginia.

MVP is owned by a conglomerate: EQT Midstream Partners, NextEra Energy, Inc., Consolidated Edison, Inc., WGL Holdings, Inc., and RGC Resources.  PSNC Energy, which serves North Carolina, has committed to using the gas should the Southgate portion be built.

Since the Southgate portion of the MVP was not in the original proposal to the Federal Energy Regulatory Commission, the extension would need its approval.

Environment, Governor Roy Cooper

Gov. Cooper proposes $14 million for DEQ, $536,000 for DHHS to tackle emerging contaminants

Gov. Roy Cooper

The NC Department of Environmental Quality would add 45 jobs, primarily in water resources, and upgrade its outdated lab to address the statewide problem of emerging contaminants, according a portion of Gov. Roy Cooper’s draft budget released today.

Under the proposal, DEQ would receive $7 million for water quality analysis and sampling of emerging contaminants, as well as for chipping away the 40 percent backlog of wastewater discharge permits. The Division of Air Quality would also receive part of that money to conduct rainwater sampling and analyze potential air pollutants across the state. Thirty-nine new full-time employees would study emerging contaminants in all water sources, including surface water, groundwater, wastewater, plus soil and sediment.

Other recommendations:

  • $1 million to fund scientific equipment and laboratory analysis. Although a high-resolution mass spectrometer isn’t mentioned by name in the draft, that type of equipment — costing roughly $500,000 — depending on the model, is necessary to conduct the complex monitoring of emerging contaminants. Six new full-time employees would be hired and trained to use the equipment and process samples.
  • $4.4 million for a “permit transformation” project that would provide public online access and tracking for all permits.
  • $1.5 million to upgrade the Reedy Creek Laboratory, where scientists analyze air and water samples. Built in 1991, the facility has not been substantially renovated since.
  • $536,000 for Department of Health and Human Services to hire a medical risk assessor, a Ph.D level-environmental toxicologist, a public health educator and a public health epidemiologist. This DHHS appropriate is the same amount of funding and personnel that Cooper requested last August, but that the legislature did not approve.

The short session begins May 16, when the legislature is expected to consider the recommendation.

Environment

DEQ asks judge to stop Chemours from discharging all GenX-related compounds, says company intentionally misled regulators

Chemours was so blatant in discharging GenX-related compounds from its Fayetteville Works plant that one of its disposal routes had a name: the Nafion Ditch.

Nafion, which is used to manufacture membranes, is the brand name for a compound in the family of perfluorinated chemicals related to GenX. According to a complaint filed by the NC Department of Environmental Quality in Bladen County Superior Court on Monday, Chemours allegedly knew GenX was potentially toxic but nonetheless lied to state environmental regulators about wastewater discharges containing it and other related compounds, including Nafion.

The complaint, an amendment to the original filed last September, was prompted by findings this week that Chemours was emitting nearly 40 times the amount of GenX-related compounds into the air than the company had originally disclosed. DEQ is asking the court to force Chemours to permanently stop all discharges of GenX and related compounds into the environment.

“It’s time for Chemours to own up to the level of contamination they have caused to the environment in and around their Fayetteville Works facility,” said DEQ Secretary Michael Regan in a prepared statement. “DEQ is using every tool available to require Chemours to clean up and stop further GenX contamination.”

Chemours has been illegally discharging GenX and related compounds into the Cape Fear River for decades, but has allegedly misled regulators about what and how it was dumping into waterways. For example, according to court documents, “for an unknown period of time” until late November 2017, Chemours had been discharging wastewater from containing PFAS (perfluorinated and polyfluorinated compounds) into the Nafion Ditch.

In 2015, following the detection of certain PFAS in the Cape Fear River, DEQ instructed Chemours to conduct supplemental groundwater sampling to determine what was causing the high levels in the Cape Fear River.  The company’s groundwater sampling results showed an elevated concentration of one type of compound. But for two years, Chemours failed to provided DEQ with the full results that showed high levels of other types of GenX related compounds.

Groundwater tests on the plant’s property show concentrations in one well at 640,000 parts per trillion — or 64,000 times the state’s groundwater threshold.  For man-made chemicals without maximum or interim standards, the state has set a threshold of  10 parts per trillion.

Other onsite wells had concentrations of GenX ranging from 42,000 ppt to 170,000 ppt. The groundwater contamination has spread, in part because of the discharge north of the plant into Willis Creek and south into the Georgia Branch, both tributaries of the Cape Fear River.

DEQ said it in its complaint that Chemours’ onsite wastewater treatment plant “has been ineffective at removing GenX compounds and other PFAS from the process wastewater discharged into the Cape Fear River through one of its outfalls.  As a result, groundwater, surface water, soils, drinking water wells and rainwater have all been contaminated. Atmospheric deposition — the emission of GenX-related compounds through the air, which then mix with rain or damp soil — is responsible for some of the contamination. Direct discharge of wastewater is the other pollution source.

“DuPont and Chemours failed to timely disclose to DWR the discharge of GenX compounds and other PFAS into the Cape Fear River,” DEQ alleges in the complaint. “In particular, none of the DuPont or Chemours [discharge] permit applications referenced “GenX,” “GenX Compounds” … or any chemical name, formula, or CAS number that would identify any GenX or related compounds” in the discharge.

Instead, DEQ said that Chemours and DuPont provided information that Division of Water Resources staff to “reasonably believe that GenX was not being discharged into the Cape Fear.”

In asking for an injunction, DEQ and the state attorney general’s office aren’t required to show actual injury. Rather, it must show only that Chemours’ acts or practices adversely affect the public interest.

 

FINAL Amended Chemours 6C Complaint by Lisa Sorg on Scribd