Detailing Cooper and DEQ’s Early Reluctance to Stop PFAS Pollution in the Cape Fear River | Eastern North Carolina Now

    Publisher's Note: This post appears here courtesy of the John Locke Foundation. The author of this post is Jon Sanders.

  • A bipartisan bill to address PFAS pollution would require polluters like Chemours to reimburse public water systems for cleanup, abatement, and technology needs
  • Debate over the bill includes concerns it would exempt PFAS pollution standards from normal rulemaking procedures and rush a potentially unscientific state standard even as the EPA is currently producing a national one
  • Gov. Cooper and DEQ's strong support for the measure is a sea change from their behavior in 2017, when they were shamed into eventually acting on Chemours's pollution after public policy organizations, local regulators, and the General Assembly took leadership of the issue

    A bipartisan bill before the General Assembly would give the state Environmental Management Commission (EMC) broad authority to set and enforce maximum contaminant levels of per- and polyfluoroalkyl substances (PFAS) in drinking water. The long-lasting but unregulated chemical compounds have been widely used since the 1940s and include uses in such products as Teflon pans, solar panels, dental floss, cosmetics, and firefighting foam. How best to protect drinking water from PFAS compounds has been a vitally important public policy issue since 2017, when legislators, local and state officials, and the general public were alerted to GenX and other PFAS compounds from Chemours polluting the Cape Fear River and surrounding groundwater.

    The bill, House Bill 1095 (first edition), would require a polluting company to reimburse a public water system for cleanup and abatement costs, including purchase of required technology, for any PFAS pollution beyond a "permissible concentration level." This level would be legislatively set at 10 parts per trillion for a single PFAS compound or 70 ppt for a combined compound (or less, if the EMC sets a lower maximum level). The legislation would make this section retroactive to January 1, 2017, with the obvious target being Chemours. Also, the bill would consider the levels set by the EMC to be "scientific standards and procedures," marking them exempt from the state rules adoption process.

    Carolina Journal on June 3 highlighted debate over the bill. While Gov. Roy Cooper and DEQ Sec. Elizabeth Biser "are pushing hard for the bill," it drew criticism from a wide range of groups, including the Chamber of Commerce, the North Carolina Manufacturers Alliance, the North Carolina Forestry Association, and the American Chemistry Council.

    The main issues are procedural, including allowing the EMC to circumvent normal state rulemaking. Setting a "science-based" state standard over a broad class of chemical compounds is problematic because scientific study is ongoingwhile PFAS compounds vary widely and don't all pose the same threat. The U.S. Environmental Protection Agency (EPA) is currently preparing a national PFAS National Primary Drinking Water Regulation. Finally, the 10-70 ppt standard is from the consent order between DEQ and Chemours in 2019 based on a "non-enforceable and non-regulatory" health advisory from the EPA set in 2016 concerning two kinds of PFAS compounds, perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOA).

    DEQ then: "the company is not breaking the law"

    Cooper and the DEQ secretary's heavy promotion of this legislation is a sea change from the Cooper administration's initial reluctance to do much about the pollution when they first learned about it. As we documented in a 2018 Policy Report, "GenX: Early Responses to Unregulated Contaminants in the Cape Fear River," the Cooper administration's response was first to ignore the problem, then downplay it, then make it sound as if they couldn't act without the EPA, then suggest they didn't have enough money. It was only after public policy organizations, local regulators, and the General Assembly took leadership of the issue that Cooper, DEQ, et al. changed tack.

    When the pollution became widely known in June 2017 upon the Wilmington StarNews' "Toxic Tap Water" investigative series, the first response from then-DEQ Sec. Michael Regan (now EPA head) was essentially to say he just heard about it, even though DEQ had been alerted going back to 2016. Shortly afterward Regan told a community meeting in Wilmington, "What we have here is a situation where the company is not breaking the law."

    The Department of Health and Human Services (DHHS) issued a GenX health goal of 71,000 nanograms per liter (ng/L) on June 8, 2017, coincidentally the same day the StarNews series began. Later that month DHHS releases analysis of cancer rates across the Cape Fear region that found some lower rates but also a higher 20-year rate of testicular cancer and higher five-year rate of liver cancer in New Hanover County. On July 14, 2017, coincidentally the same day that DEQ released results of GenX testing on the Cape Fear River, DHHS dramatically reduced its health goal to 140 ng/L while acknowledging it had not taken cancer risks into account despite noting that "animal studies demonstrate ... pancreas, liver, and testicular cancer effects."

    Regan and then-DHHS Sec. Mandy Cohen later pressed legislators for an "emergency appropriation" of over $2.5 million to their departments to address GenX pollution, a position they'd return to when legislators asked hard questions about their response to Chemours.

    Cooper's initial reaction was to pass the buck. On July 17, 2017, he sent a letter asking the EPA to begin regulating GenX and other chemical byproducts, making it sound as if North Carolina was unable to act against Chemours without it. Cooper's stance was rejected by environmental lawyers, a former EPA attorney, CFPUA's counsel, and legislators. Later Cooper would revert to form and veto a bill addressing GenX cleanup, abatement, and research needs by complaining it didn't fund his administration adequately (DEQ and DHHS) and even that it repealed a local plastic bag ban.

    Saying the bill was just a start, legislators enacted it over Cooper's veto. It allocated money to CFPUA to procure new water treatment technology, to UNC-Wilmington to study GenX accumulation in the Cape Fear River and risks posed to people, and to UNC-Chapel Hill to create a searchable national database of water quality permitting. It also required DEQ to report why it had not issued a Notice of Violations to Chemours if not done by the bill's passage. The budget bill of 2018, also overriding a veto, added nearly $10 million in GenX-related items and new powers for the governor and DEQ to address such matters (see p. D 8 and Sec. 13.1).

    The Cooper administration's "dramatic shift"

    The following events preceded what WRAL termed "a shift in the way DEQ had been handling this issue," which former EPA chief attorney Joel A. Mintz called a "dramatic shift":

  • July 28, 2017: The Civitas Institute gave notice of intent to sue Chemours to enforce provisions of the Clean Water Act with respect to "unlawful discharge of industrial waste," citing North Carolina environmental rules likely violated.
  • August 3, 2017: CFPUA also gave notice of intent to sue and included a section on "violations of North Carolina water quality standards adopted and enforced pursuant to the Clean Water Act."
  • August 23, 2017: The General Assembly's Environmental Resource Commission held a public hearing in Wilmington seeking answers to GenX pollution and asking how the administration decided Chemours was not in violation.
  • August 28, 2017: The EPA notified DEQ of its findings of two more GenX-related compounds and three other unregulated compounds in wastewater discharged by Chemours.
  • August 30-31, 2017: In a special session, the General Assembly passed House Bill 56 with its section on "GenX Response Measures."

    The "dramatic shift" happened after HB 56 passed but before Cooper vetoed it. DEQ gave Chemours a 60-day notice of intent to suspend its permit over the new discharge, issued the Notice of Violation, and filed a comprehensive complaint in Superior Court in Bladen County alleging a wide range of violations by Chemours (in which DEQ detailed their authority to regulate the discharged compounds despite a lack of EPA standards).

    For the complete timeline and much fuller discussion of these events and more, read the study, "GenX: Early Responses to Unregulated Contaminants in the Cape Fear River."
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