Q&A: Environmental attorney Derb Carter on DEQ’s power to regulate GenX (or not); lawmakers to hold hearing Wednesday

Sen. Harold Hardison in 1985: If there are no federal regulations, “the sky’s the limit.” Hardison died in 2015 at age 92. (Photo: Screen capture, UNC School of Government, UNC-TV)

In 1973, the year that Sen. Harold “Bull” Hardison of Lenoir County sponsored the controversial amendment that bears his name, the EPA was just three years old. The Clean Water Act was in its infancy, as was the modern version of the Clean Air Act.

And North Carolina, faced with the federal government flexing its regulatory muscle, needed a workaround. If the EPA hadn’t regulated certain pollutants, then the state shouldn’t have to regulate them, either. Without federal laws, “the sky’s the limit,” Hardison, a conservative Democrat told UNC-TV in 1985.

The Hardison amendment and its restrictions on the regulatory powers of DEQ are again under scrutiny as state environmental officials grapple with the contaminant GenX in the Cape Fear River and the drinking water in New Hanover, Pender and Brunswick counties.

In essence, the Hardison amendment prohibits DEQ from adopting stronger environmental standards than the EPA’s rules regarding air, water and solid and hazardous waste. However, there is an exception within the law for “serious or unforeseen threats,” which allows DEQ to make temporary rules  governing pollutant levels in case of a crisis. GenX is arguably such as crisis.

DEQ’s regulatory authority is likely to be a topic of discussion Wednesday when the legislature’s Environmental Review Commission holds an investigative hearing about GenX.  The hearing, which will include public comment, runs from 1:30 to 5 p.m. at the New Hanover Government Center, 230 Government Center Drive, Wilmington. A tour of the Sweeney Water Treatment Plant will begin at 10:30 a.m.

(New to the Hardison amendment saga? The UNC School of Government has an excellent primer on the law.)

The legislature repealed the Hardison amendment in 1995, freeing the state to set more stringent regulations on water, air and waste. But in 2011, the Republican majority voted to reinstate it. And some legislators, including members of the Republican Senate Caucus, are invoking the “serious and unforeseen threats” exception to criticize DEQ for not using it to set temporary GenX standards in drinking water.

However, as is the case with a lot of legislation, it doesn’t fully consider the loopholes or relate to real life.

Chemours, responsible for discharging GenX into the Cape Fear, could argue that the chemical is not on the list of the EPA’s regulated pollutants for its “category of industry.”  Examples of these industrial categories include textiles, electroplating, chemical manufacturing.

As environmental attorney Derb Carter Jr. explains, Chemours could thread the legal needle and argue that DEQ can’t set a standard for GenX in this industrial category. This nuance is important, and to learn more about what DEQ can and can’t do under the amendment, NCPW spoke with Carter, director of Southern Environmental Law Center’s Chapel Hill office, about the finer points of the Hardison amendment and DEQ’s powers.

Derb Carter Jr., director of the Southern Environmental Law Center’s Chapel Hill office. (Photo: SELC)

NCPW: Does the Hardison amendment prevent DEQ from regulating GenX in the Cape Fear River in case of “serious or unforeseen threats”?
Carter: If the state wanted to adopt a very stringent standard for GenX — and there is no EPA numeric standard for GenX— it can do so.

But it’s not that simple. There’s a loophole.
Carter: The way the Clean Water Act works is that the EPA has national standards or effluent guidelines for categories of industries. The EPA has set standards for pollutants that these categories of industries can discharge. But there are no standards for GenX under EPA’s effluent guidelines for Chemours’s category of industry, or for that matter, any category of industry.

So how can companies like Chemours circumvent the state’s powers to regulate their discharge of emerging contaminants?
Carter: The Hardison amendment prohibits DEQ from adopting an environmental standard if a federal rule has been adopted pertaining to the same “subject matter.”  So whether the state can adopt a particular standard depends on how you define that — the “subject matter” of the federal rules.
If I were an attorney for Chemours, I’d argue that the “subject matter” of the federal rule is the comprehensive national standards for this category of industry. The comprehensive list of allowed pollutants doesn’t include GenX; because GenX is not included, the state cannot adopt a limitation for GenX for this industry.

Under the law, DEQ or the Environmental Management Commission can adopt a temporary rule in the case of “serious or unforeseen threats.” What about a permanent rule?
Carter: Under existing law, DEQ can move quickly to adopt a temporary rule, but only for a limited duration. Then it has to be replaced by a permanent rule, which has to go through rule-making process. That includes public notice and comment.

DEQ’s ability to enact a permanent rule, though, is being jeopardized in House Bill 162. The bill would prohibit DEQ or the Environmental Management Commission from doing that.
Carter: The bill passed by the Senate and pending in the House layers financial requirements on top of the Hardison amendment. Under the bill, an environmental regulation can’t cost more than $100 million over five years. That’s $20 million a year.  And a cost of $10 million over five years or $2 million a year requires legislative approval.

That’s really not much money. Cleanups are very expensive. A company could burn through that amount very quickly.
Carter: Yes, and under the bill you can’t count the benefit of the rule. So if it cost $100 million to regulate GenX but the benefit to the public is $800 million, DEQ or the EMC still couldn’t enact a rule to protect the public from GenX.
It’s completely outrageous. Instead of trying to impede the state’s ability to protect the public from water pollution through House Bill 162, the legislature should repeal the Hardison amendment and allow the state to adopt environmental protections necessary to protect the public.

What are the consequences of the legislature prohibiting DEQ or the EMC from enacting stronger rules than the EPA’s?
Carter: The Hardison amendment and its restrictions put North Carolina’s environmental protection at the mercy of [EPA Administrator] Scott Pruitt and the Trump administration, which is not a particularly comforting thought. And it ensures North Carolina’s protections for air and water quality are at the bottom in the nation.

Source: General Assembly, UNC School of Government, Campbell University School of Law

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Q&A: Environmental attorney Derb Carter on DEQ’s power to regulate GenX (or not); lawmakers to hold hearing Wednesday