Davidson River in the Pisgah National Forest in Transylvania County. File photo/Carolina Public Press

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By Bruce Henderson
bhenderson@charlotteobserver.com

A years-overdue rewrite of state water quality standards stiffens limits on metals, the toxic elements that have been in the public eye since the Dan River coal ash spill in February.

Environmentalists and the Environmental Protection Agency, which oversees federal clean water law, cheer the new standards. But they say the proposal is just as notable for what it doesn’t do.

The standards include loopholes that are intended to save municipalities and industries money but the EPA says may break the Clean Water Act. The rules also ignore some widespread pollutants, including the most potent form of mercury.

Public hearings on the standards, which are used to write wastewater discharge permits and assess the health of rivers and lakes, will be held this week in Raleigh and Statesville (Wednesday). About 1,900 public comments have already been filed.

MORE: More on the proposed rule: http://portal.ncdenr.org/web/wq/ps/csu/swtrirev

Federal law requires states to update water quality standards every three years. North Carolina last did it in 2007. State officials blame the delay on the complexity of the standards and policy changes that made it harder to enact new rules.

North Carolina has failed in particular to set new standards for metals, which can cause ailments from cancer to kidney problems. Some of the standards date to the 1980s and miss decades of research.

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“A number of them are many, many years old,” said Connie Brower, water quality standards coordinator at the N.C. Division of Water Resources. “What we know now is that metals are more toxic than we originally believed them to be.”

The EPA warned the state in 2010 that North Carolina was the only Southeastern state that hadn’t adopted nationally-recommended metals standards.

The federal agency is largely on board with the state’s update, including a switch to basing standards on metals in the dissolved form that can more quickly harm fish and other wildlife.

But EPA has serious concerns about a provision – the “biological trump” – that says some metal standards can be broken if there’s no evidence aquatic life has been harmed. The agency will decide whether to approve the new standards once they’re in final form.

EPA says biological studies are of little use in preventing water pollution and don’t replace the need to enforce pollutant limits.

“The Clean Water Act is not just about coming in after the fact, but to protect rivers in their current uses,” said Grady McCallie, policy director of the N.C. Conservation Network. The network represents more than 90 environmental groups.

Balancing protection and growth

A major factor in writing the standards was how much they will cost cities and businesses to comply. About 95 percent won’t see lower metals limits in their discharge permits under the proposed rule, Brower said.

“We are trying to meet the standards of the Clean Water Act and yet give some relief to the regulated community,” she said. “That has been a direct order” from managers at the N.C. Department of Environment and Natural Resources.

DENR, under Gov. Pat McCrory’s administration, has pledged it will not be a “bureaucratic obstacle” as a regulator.

Environmentalists say the Clean Water Act prohibits cost considerations when such rules are developed. Many of the states that updated metals standards years ago, EPA adds, found the costs weren’t as high as feared.

The North Carolina Chamber, which represents 35,000 businesses, says it supports “smart regulations that keep our state’s economy moving forward” and balance environmental protection and economic growth.

Charlotte-Mecklenburg Utilities wrote state regulators in December that the new standards should be “based on the latest science, provide a measurable benefit to the environment, and … not unreasonably burden industry or stifle economic growth and development.”

CMUD was among municipal utilities urging the state to not set standards for algae-producing nutrients, which they say would increase treatment costs. Utilities say most nutrients come from other sources, such as fertilizer-laden lawns.

The new standards don’t include nutrient limits, despite EPA’s strong urging. North Carolina is developing a separate nutrient-control plan, but it won’t take effect statewide until the 2020s.

Fracking chemicals not addressed

EPA also says the state proposal also should have set a standard for methylmercury, a potent form of mercury that contaminates fish.

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Babies born to women who eat too much contaminated fish may have permanent learning problems. A statewide advisory against eating largemouth bass, which are the most likely to be contaminated by mercury, took effect in 2008.

The state says an EPA-approved mercury reduction plan adopted in 2012 will curb releases that form methylmercury.

Environmental groups further fault the state proposal for not addressing fracking chemicals that could be treated at municipal plants and drained into the state’s rivers.

The state Mining and Energy Commission is expected to begin issuing permits for fracking for natural gas in 2015. Hundreds of fracking compounds have been identified, many with unknown toxicity. In the absence of that data, environmental advocates say, the state should make any detection of those chemicals a violation.

“They could address this but they haven’t,” said Sierra Club lobbyist Cassie Gavin. “Certainly it’s the Division of Water Resources’ role to protect water quality, not the Energy and Mining Commission.”

The Charlotte Observer

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