Environment, Governor Roy Cooper, Legislature

Analysis: Water Safety Act constitutionally suspect, could slow down enforcement, clean up

Rep. Ted Davis Jr., a New Hanover County Republican (Photo: NCGA)

It’s curious how two legislators, who, in their day jobs are attorneys, have co-sponsored bills that leak state and federal law like a sieve.

The Water Safety Act — Senate Bill 724 and  its identical companion legislation House Bill 972 — pretend to strengthen regulations and enforcement against Chemours, but in reality, make the state vulnerable to legal action by the company and do little to clean up GenX contamination.

The legislation could be folded into a larger budget bill, making it all but impossible to defeat.

Primary sponsors of the House version are Republicans Ted Davis Jr. (the lawyer of the bunch), Holly Grange, Frank Iler and Bill Brisson. They all are members of the House Select Committee on River Quality.

The Senate counterpart is co-sponsored by Republicans Mike Lee, an attorney, plus Bill Rabon and Wesley Meredith.

The Department of Environmental Quality and Gov. Cooper both issued statements and analysis critical of the bill today. But environmental lawyers, policy analysts and environmental groups, have also chimed in. They have noted the bills’ serious legal defects that could hamper cleanups, run afoul of current state and federal laws, and deprive Chemours and other polluters their constitutional right to due process.

Sen. Mike Lee, a Republican from New Hanover County (Photo: NCGA)

The bills makes DEQ’s actions dependent on the governor, who is authorized to issue an administrative order to “require a facility to cease all operations that result in the production of a pollutant.” (In the bill, “pollutant” is not defined.)

“On its face, a governor’s order sounds like a quicker and more direct way to stop the release of these pollutants,” wrote former Assistant DEQ Secretary Robin Smith, now a lawyer and consultant in private practice, on her environmental blog. “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.”

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Those appeals can take months; meanwhile, contamination could continue unabated.

On the other hand, DEQ can go directly (and quickly) to court for an injunction, which the agency has already done in Bladen County to stop Chemours from discharging GenX offsite.

While the legislation appears to target Chemours and its “discharge” of GenX and fluorinated compounds, DEQ pointed out that “discharges,” as defined in state law, exclude air emissions. GenX-related compounds are being emitted into the air from the Chemours plant and contaminating surface water, soil, groundwater and drinking water — topics also extensively discussed in the House River Quality Committee.

In addition, the bill sponsors seemed to go out of their way not to fund DEQ, other than $2.3 million worth of breadcrumbs. “While providing extravagant funding to those other entities, the bill fails to make a long-term investment in DEQ’s regulatory programs that have been subject to budget cuts since 2011,” DEQ said in its analysis.

By comparison, the bill serves as an ATM for other entities: the Cape Fear Public Utility Authority ($450,000), local governments ($2 million), the state health department ($530,000), and the NC Collaboratory at UNC ($8 million), whose research director is Jeffrey Warren, former science advisor to Sen. Phil Berger.

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Environment

SELC files complaint vs US Fish and Wildlife over 540 toll road threat to endangered mussels

The Yellow Lance Mussel, a federally threatened species, could be eradicated by the construction of the 540 toll road. (US Fish and Wildlife Service)

Tiny and unobtrusive, the endangered Dwarf Wedgemussel and the threatened Yellow Lance Mussel are minding their own business in Swift Creek in southern Wake County. They’re doing what freshwater mussels do: The larvae, having hitchhiked a ways on the back of fish like the johnny darter or a mottled sulpin, hatched just last month. Free of their kids, the adults are hanging out in the sand bottom, nibbling on algae.

These two mussels, though, live in the path of the proposed 540 toll road. And now they’re at the center of a federal complaint filed by the Southern Environmental Law Center.

Filed in US District Court for the Eastern District of North Carolina, the complaint alleges the US Fish and Wildlife Service committed “arbitrary and capricious”errors when it approved the biological opinion for the 540 toll road. The agency determined that direct effects of the project pose “no jeopardy” to the mussels within a quarter mile of their known occupied habitat in Swift and Middle creeks.

“USFWS has failed in every way to analyze impacts to the endangered mussel species and to ensure that measures are in place to prevent extinction, minimize loss and put the species on the road to recovery,” the complaint reads.

USFWS did not respond to an email request seeking comment.

A biological opinion is the scientific lynchpin for evaluating a project’s potential environmental damage. The harm can be direct — construction that erodes a stream bank, for example — or indirect — stormwater runoff, sedimentation and increased development that usually accompanies such road projects.

Swift Creek near NC 50 in southern Wake County

The opinion is also legally required to consider a project’s cumulative impacts in an “action area.” These cumulative impacts could include the construction of the Atlantic Coast Pipeline, which will pass through Johnston County, as will part of the toll road.

The federal agency’s errors could permanently harm, or even wipe out, the mussels, SELC says. Federal law recognizes that construction can unavoidably kill some members of endangered or threatened species. That damage is limited though, in an “incidental take” permit, which is supposed to specify “whenever possible” the number of animals, birds or aquatic organisms that can be killed.

These “incidental takings,” as they’re known under the Endangered Species Act, would cause the mussels to go virtually extinct in North Carolina.

But, as SELC attorney Kym Hunter pointed out, USFWS has authorized the state to essentially kill all of the mussels within 50-plus miles of their habitat. USFWS has said it’s too difficult to accurately count the mussels because they are “small and cryptic in nature.” In other words, the agency won’t know how many will be destroyed because it doesn’t know how many exist: Out of sight, out of mind.

There are situations in which counting endangered or threatened species is very difficult — their low numbers are precisely the reason for their status. In those cases, USFWS can assign a “surrogate” method of estimating the population. But the law requires USFWS to make a scientific case for the alternative, which, Hunter said, it has not done.

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Environment, Legislature

It’s raining GenX bills: GOP legislation largely ignores DEQ for funding

Rep. Ted Davis Jr. (Photo: NCGA)

Within hours of House Democrats filing HB 968, four more House members, this time all Republicans, put up their own bill, HB 972, which essentially rebuffs any meaningful appropriations for the NC Department of Environmental Quality.

Instead, it appropriates just $2.3 million to DEQ and gives money to just about anyone else who has asked for it: the Cape Fear Public Utility Authority ($450,000), local governments ($2 million), the state health department ($530,000), and the NC Collaboratory ($8 million).

The language in HB 968 resembles the Senate version of the Water Safety Act, introduced during a special session last winter, which seemed almost mean-spirited toward DEQ.

In comparison, Democrats introduced a bill today that would appropriate more than $14 million to DEQ and the state health department to address the GenX crisis.

In Republicans’ HB 972, DEQ is often used as a pass-through for funding. For example, The bill would appropriate $2 million in one-time money to DEQ, which would then disperse funds to local governments to connect households to public water supplies. The polluter would then reimburse the state via a Recovery Fund.

Another $450,000 would go to DEQ for grants to the Cape Fear Public Utility Authority for water sampling and testing new treatment technologies.

The $1.3 million in one-time money to DEQ would be used for temporary staff to conduct water quality sampling for emerging contaminants, to address permitting backlogs, and to sample and analyze GenX in the air, soil and river sediment.

(The funding is being diverted from the dead-on-arrival SePro project. Last year, lawmakers appropriated $1.3 million for the private company to test algae-killing chemicals and other dubious treatments in Jordan Lake. State environmental officials and the US Army Corps of Engineers killed the deal over concerns about potential harm to aquatic organisms and wildlife.)

Another $479,000 would go toward statewide sampling for emerging contaminants, plus $537,000 for a high-resolution mass spectrometer.

Rep. Susan Martin (Photo: NCGA)

DEQ receives no funding to develop a detailed remediation plan for emerging contaminants, as laid out in the bill.

The big winner is the NC Collaboratory, whose research director is Jeffrey Warren, former science adviser to Sen. Phil Berger. The Collaboratory’s one-time $8 million windfall would be used to corral academics to conduct targeted and nontargeted monitoring for emerging contaminants in public water supplies. Money would also be used to buy equipment, pay for research time, study air emissions and to conduct computer modeling for private well contamination and treatment options — all duties usually assumed by DEQ.

The bill also contains a glaring redundancy. It directs the state health department to consult with federal authorities and academics via the Collaboratory to recommend health goals for fluorinated compounds, including GenX. That’s precisely what the Science Advisory Board is doing right now. In fact, it is expected to release its health goal recommendations in June.

Rep. Frank Iler (Photo: NCGA)

The co-sponsors of HB 972 are Republican Reps. Ted Davis Jr., Frank Iler, Bill Brisson and Susan Martin. All but Martin sit on the House River Quality Committee.

HB 972 empowers not only environmental regulators, but also the governor, under certain conditions, to require a facility to “cease all operations and activities” that result in the production of a pollutant.

Neither bill specifically mentions Chemours, but the punitive language in both applies to the company’s conduct in North Carolina.

All of these conditions must be met:

  • the facility has a NPDES discharge permit
  • it has received more than one notice of violation from DEQ within a two-year period
  • the discharge of the fluorinated compounds violates federal drinking water standards or health goals that have been implemented by the state health department
  • DEQ has been unable to stop the facility from these unauthorized discharges within a year of learning of them

DEQ first learned of Chemours’ GenX discharges in June 2017, almost a year ago.

Rep. Bill Brisson (Photo: NCGA)

Polluters would also be require polluters to cover the cost of alternative water supplies for households whose private drinking water wells have been contaminated. More than 100 such wells have been contaminated near Chemours Fayetteville Works plant in Bladen County.

The Democrats’ version of the bill focused on forcing polluters, such as Chemours, to pay to clean up public water supplies they had contaminated.

Environment, Legislature

House members file bill to fund DEQ, target actions by Chemours

Rep. Elmer Floyd, a Cumberland County Democrat (Photo: NCGA)

Legislation filed today in the house would appropriate more than $14 million to the NC Department of Environmental Quality, while strengthening environmental laws that appear targeted at Chemours, the company that has contaminated drinking water, the Cape Fear River, air and groundwater with GenX and related compounds.

House Bill 968 would also repeal the Hardison amendment, which the Republican majority reinstated in 2011 CQ. The Hardison amendment prohibits state legislators or agencies from passing stricter laws and rules than those established by the federal government.

Since the EPA has proposed rolling back regulations on coal ash, car emissions and clean water and air, the Hardison amendment could significantly hamstring North Carolina’s attempts to strengthen its own protections.

The legislation has four Democratic co-sponsors: Reps. Deb Butler of New Hanover County, Pricey Harrison of Guilford County, and Billy Richardson and Elmer Floyd, both of Cumberland County. of the co-sponsors, three are in districts affected by Chemours; Harrison’s district includes rivers and streams polluted with other emerging contaminants, like 1,4-dioxane.

Rep. Deb Butler, a Democrat from New Hanover County (Photo: NCGA)

The bill also contains language that would require companies to fully disclose in their environmental permits all chemicals and compounds that they discharge. Other provisions further empower the Environmental Management commission to “immediately” suspend the discharge permit of companies that allow unregulated toxic pollutants to enter the air or water.

Since the GenX crisis began a year ago, DEQ has filed notices of intent to modify or suspend Chemours’ discharge permit, as well as issued notices of violation. But no permits have actually been suspended.

The bill also establishes conditions under which the DEQ secretary and the governor could declare an emergency when it finds that a “generalized condition of water or air pollution is causing imminent danger to the health or safety of the public.” In such cases, the polluter would have to “reduce or discontinue immediately” discharge of the contaminants.

Chemours recently argued to state environmental regulators that there was no public health emergency associated with GenX; in that case, the company argued, rigorous limits on concentrations in drinking and groundwater were not warranted.

Companies would also be required to provide filtration and treatment for water supplies contaminated by illegal discharges. The Cape Fear Public Utility Authority has already spent upward of $1.7 million to reduce the amount of GenX entering Wilmington’s drinking water supply below the state’s provisional health goal of 140 parts per trillion.

The EMC could also force violators to reimburse the state for removing and halting the pollution, or face a civil penalty.

Rep. Pricey Harrison, a Guilford County Democrat (Photo: NCGA)

As for the funding, about $9 million would be recurring, and much of it for 39 positions devoted to managing, monitoring and analyzing GenX in water and air.

The balance would be allocated as one-time funds for scientific equipment, such as a high-resolution mass spectrometer, temporary staff to work on permit tracking and online access for the public, and upgrades to the Division of Water Resources’ Reedy Creek lab. That facility has not been upgraded in more than 25 years.

Rep. Billy Richardson, a Democrat representing Cumberland County (Photo: NCGA)

Another $536,000 would go to the Department of Health and Human Services to fund four positions: a medical risk assessor, toxicologist, epidemiologist and a public health educator.

Many of these funding requests had been made previously by the governor and other House lawmakers. The Senate has so far rebuffed those requests.

Environment, Trump Administration

NC State professor “retained” by Chemours is basis for claims that DEQ groundwater standards too stringent

NC State University professor of toxicology Damien Shea says his analysis of GenX shows current health advisory goals are too stringer. Shea has been “retained” by Chemours for his expertise. (Photo: NC State University)

This post has been updated with comments from Damien Shea, who responded the day after this story was posted.

Analysis by a NC State University professor and scientist paid by Chemours is the basis of the company’s claim that voluntary state groundwater standards for GenX are too stringent.

Damien Shea is a professor of environmental toxicology at NC State and the principal investigator and University Director of the Department of Interior’s Southeast Climate Science Center.

 Although his work is widely published in peer-reviewed scientific journals, Shea also testified at a federal trial as an expert witness on behalf of BP. He told  the court that data from the Deep Horizon oil spill showed there was “no harmful exposure from oil-related chemicals or dispersants in nearly all of the area investigated.”

Federal government experts had criticized Shea’s findings, saying that they were based on too broad of an area to be definitive. NOAA scientists found large die-offs of marine species, including turtles, and lingering reproductive effects on survivors.

Last week Chemours called the state’s interim groundwater standard of 10 ppt for GenX — based on the EPA’s benchmark — “arbitrary, unfair and capricious.”  Chemours made these claims in a 30-page response to the Division of Air Quality’s notice that it could prohibit the company from emitting any GenX or related compounds from its Fayetteville Works facility.

Chemours told DEQ that internal company studies found 70,000 ppt was safe for groundwater and drinking water. Shea’s analysis is included the 950 pages of supplementary documents. He wrote that someone would have to drink 1,400 liters of water per day “from the most contaminated tap for their whole life” for their health to be harmed.

Shea argues that while GenX can cause liver tumors in mice, that is not applicable to humans. However, exposure to GenX can be linked to many non-cancer but equally harmful health effects on the liver.

Nor do Shea’s findings address harm to other organisms, both land and aquatic.

Shea could not be reached for comment. 

Shea said that he had raised concerns about the procedure and data the state used last summer to determine the provisional health goal for drinking water. Six months later Chemours contacted him, Shea said, and asked if he would complete his analysis and put it in writing.

“My analysis and the documents I wrote are entirely consistent with the opinions I expressed before Chemours ever contacted me,” She said. “I can assure you that I would provide an objective an unbiased analysis of the data regardless of who was financially supporting the work.”

DEQ said it is still reviewing Chemours’ response.

Scientists often debate findings and research. However, when a scientist receives payment from a private company for their analysis, it raises questions about the independence of the methods.

Overall, peer-reviewed science is scarce on GenX, regardless of where the compound is entering the environment — groundwater, drinking water or air. In fact, the lack of peer-reviewed studies is one of the main challenges facing the state’s Science Advisory Board as it tries to recommend a drinking water standard for GenX.

There are no studies involving humans, and only two on rats and mice. The state health department used one available rodent study in establishing the first provisional health goal of 70,000 ppt for drinking water; a second rodent study prompted state officials to reduce the acceptable level to 140 ppt.

The EPA has not set a groundwater or a drinking water standard for GenX.

Jamie Bartram, chairman of the Science Advisory Board, declined to comment on Chemours’ findings. The SAB, he told Policy Watch, “is still studying the issue. It would be inappropriate for us to pre-empt its conclusions.”

The SAB could make its recommendation on a drinking water health goal in June.

Despite assertions to the contrary, Chemours in North Carolina and its corporate parent, DuPont, have not been transparent in their dealings with the public and DEQ. Chemours has repeatedly failed to disclose the full extent of spills, discharges and air emissions. DuPont hid internal studies showing similar compounds, PFOA and PFOS, harmed public health, while those very substances were entering the drinking water supplies in Ohio and West Virginia.

Chemours is not alone in this conduct. It’s common for companies’ internal studies to downplay or deny health and environmental harm from their products: the tobacco industry and cigarettes, the biotech industry and pesticides, Westinghouse and PCBs.

It’s also common for industry influence to shape EPA decisions. But under EPA Administrator Scott Pruitt, there is not even a pretense that science is the foundation of its rule-making.

As Chemours accused state environmental officials of being too tough on the company regarding groundwater standards for GenX, national media reported that the EPA intentionally hid damning data on the health effects of similar fluorinated compounds.

Several national media outlets, including the Washington Post and Politico, reported that the EPA has suppressed a study showing that PFOA and PFOS are dangerous to human health at lower levels than previously thought.

The EPA in 2016 set a health advisory — which is not enforceable — of 70 ppt combined for PFOA and PFOS. According to national media, federal toxicologists found that exposure at one-sixth of that level could be dangerous for sensitive populations, such as infants and breastfeeding mothers.

However, EPA officials did not want to disclose this information because it could be a “public relations nightmare,” especially for the Defense Department. Military bases have been contaminated with PFOA and PFOS because those compounds are found in firefighting foam, used in training exercises.

In Atlantic, NC, two drinking water wells at the Marine Air Station at Cherry Point tested above the lifetime health advisory of 70 ppt, according to results released May 4. That investigation is continuing.