State House and Senate leaders announced a long-sought agreement last week on a statewide response to “emerging contaminants,” a class of new, unregulated compounds that have been found in North Carolina rivers and whose effects on human health are unclear.
Close to 90,000 of these potentially hazardous substances are known to exist. For water-quality regulators at the state, federal and local levels, trying to keep up with the fast-changing inventory of compounds is an exercise in triage.
Nothing made that difficulty clearer than discovery of one unregulated compound known by the trade name GenX in the water supply for about 300,000 North Carolinians in the lower Cape Fear region.
The GenX story is complex, interwoven with chemistry, law and the shifting framework of federal and state regulation. More than that, it is about the future of water quality and whether those charged with protecting it have the tools and expertise to keep up with changes in the industries they regulate.
Given the experiences the Department of Environmental Quality has faced in the past year, DEQ Secretary Michael Regan thinks it is ready to take on the task.
“I think we’ve positioned ourselves very well to act on what we are facing,” he said recently after guiding legislators through a tour of DEQ’s main labs in Raleigh. “We just need a partnership with our legislature and we need the resources.”
Last year, as the GenX story expanded, Regan sought emergency funds from the legislature. This year, he is pushing for a more proactive and comprehensive approach.
The state has a system in place to work through the list of emerging contaminants, identify those most applicable to North Carolina and develop testing and standards on them, Regan said. But to do that, regulators need the technical capabilities to gather the data.
As Gov. Roy Cooper began his rollout of 2018 budget priorities last month, the first announcement was a $14.5 million plan for additional personnel and equipment at DEQ for testing and monitoring.
Cooper said he was frustrated by lack of movement in the legislature on DEQ’s requests for help. He said it will take pressure from the public for legislators to move forward.
“My hope is that the people will rise up and tell them this has to be done,” Cooper said.
Other states are already targeting emerging contaminants. California has a monitoring system in place. Michigan recently approved a $23 million for PFAs, a class of polymer substances that include GenX.
New urgency to an old idea
Monitoring and regulating the use of emerging contaminants is not a new idea. In 2007, the state House members considered the idea after Rep. Pricey Harrison, D-Guilford, a leading environmental advocate in the House, introduced it.
Harrison, who was new to the legislature at the time, said she first became of aware of the universe of emerging contaminants after attending a 2006 briefing on concerns about flame retardants, which are made from a related set of compounds known as PFOS.
“I thought we were protected by EPA regulation,” she said. “I didn’t realize that there were these gaping holes in federal oversight of these contaminants and the state needed to act.”
That effort, opposed by industry and still new to many environmentalists, failed to gain traction.
Harrison said getting a deal to move forward on emerging contaminants has been a struggle for policymakers in part because of the complexity of the science and in part because powerful interests are aligned against additional regulations on industry.
But what was shaping up to be a long process is now a headlong rush to put something on emerging contaminants in place. It’s driven by a major public health crisis and ongoing political struggles between the governor and the legislature over how to deal with it.
‘Trying to deal with it’
Nearly a year ago, as the General Assembly prepared its final round of votes on the state budget, a fast-moving environmental story out of Wilmington shook up the debate.
On June 7, the Wilmington-Star News published a series based on studies from a team of university researchers showing that a compound known by the trade name GenX was present in high concentrations in the Cape Fear River.
The study’s key finding was that treatment methods for local water systems failed to remove or even significantly reduce the amount of it in the water piped to homes and businesses.
The reaction among the roughly 300,000 residents in the three-county area who drew raw water from the river was outrage and worry.
The public hearings that followed were packed and heated as residents lined up to question whether their water was safe to drink. As the story unfolded, little of the new information offered any comfort.
Other manufactured compounds were in the river as well. So little was known about the effects of GenX that it was difficult for health experts to set a standard for an amount that could be considered safe.
The source of GenX was fairly easy to determine. It was about 100 miles upstream from the intake pipes of the Cape Fear Public Utility Authority flowing from the outfall of the sprawling Fayetteville Works facility owned by performance chemical maker Chemours, a company spun off from DuPont in 2015. Although wastewater permits prohibited the company from discharging the compound into the river as part of its main process, the company could discharge the GenX that was classified as a byproduct.
Used in products like Teflon, microwave popcorn bags and other stain- and heat-resistant items, what was known about GenX was it was closely related to C8, the compound it replaced at Fayetteville Works after C8 was found to be a likely human carcinogen.
Since then, only a handful of studies on its possible effects on human health had been conducted. A few of the key studies, conducted for the industry, are closely held as proprietary business information.
The news appeared to take state officials by surprise.
In the initial Star-News story, a DEQ administrator underlined the difficulty the state was having keeping up with the growing inventory of new compounds like GenX and setting standards when so little is known about them.
“Unfortunately, with these unregulated contaminants, we have one hitting us after another and we’re trying to deal with it,” Julie Grzyb, a permitting supervisor told the Star-News.
Meanwhile, the state House was moving ahead with final passage of the two-year state budget. Democrats expressed concern about continued cuts at DEQ, which would lose 16 positions in the plan.
Although cuts proposed in the final deal were less harsh than a Senate proposal that would have cut 45 positions, Democrats said the department, managing both coal-ash cleanup and a permitting backlog, needed more money.
As the House prepared for a final vote on June 19, Rep. Deb Butler, a New Hanover Democrat and the chamber’s newest member, placed a copy of the latest news reports on GenX at each member’s desk. During debate, Butler said the legislature would have to deal with the crisis and it was not the time to short-change the environmental enforcement agency.
The budget passed mostly along party lines, but legislative leaders acknowledged that the General Assembly needed to address the growing concerns and outrage in lower Cape Fear region. The House and Senate each formed “River Quality” committees to study the issues around GenX and the larger question of emerging contaminants. Members of the committees included most of the legislators representing the region. Butler was not invited.
As the committees geared up, both the governor and the legislature’s Environmental Review Commission, the legislature’s main environmental oversight committee, traveled to Wilmington.
Driving a new round of public concern was a change in the official health goal for the compound. A health goal is a nonregulatory standard set by health officials on what amount represents an acceptable risk to human health.
When the state Department of Health and Human Services, which was charged with the determining the health goal, revised its standard from 71,000 parts per trillion to 140 ppt, the result was another wave of public hearings and a clear erosion of trust.
In Wilmington, Cooper announced a state response that included $3 million in emergency funding for DEQ and DHHS for testing and monitoring. The governor also promised the state would rewrite discharge permits to GenX discharges by Chemours.
The ERC heard from local officials as well as scientists at UNC Wilmington who warned that the contamination in the Cape Fear could be more widespread than initially thought.
Residents also lined up at the hearing to express concern for family members and the safety of the community. Among them were New Hanover Republicans Sen. Michael Lee and Rep. Ted Davis, who would later become the key negotiators in the latest legislation.
DEQ quickly began a series of enforcement actions aimed at eliminating the flow of GenX into the Cape Fear and determining whether contamination could also affect areas around the plant.
The company later voluntarily stopped the wastewater discharges. It now transports the water for disposal in injection wells in Texas.
As groundwater testing around the plant expanded last fall, results showed the presence of GenX in private wells and nearby lakes, some of which were in areas that couldn’t be explained by stormwater runoff or discharges into the river.
Additional sampling and modeling of prevailing winds by the state’s Division of Air Quality determined that in some areas it was likely that GenX in surface waters and wells was due to air emissions.
Since then, estimates of the output from five stacks at Fayetteville Works and analysis showed that precursors to GenX in air emissions produce the compound in contact with water.
This has heightened concerns in the Fayetteville area and added a new track in DEQ’s regulatory approach to Chemours.
Last month, with data determining that emissions from the stacks at the Fayetteville Works were a direct cause of groundwater and surface water contamination, the state took both legal and regulatory action to force Chemours to stop all air emissions of GenX, a move that could make it difficult for the plant to continue operations. The company has 60 days to respond.
Alvenia Scarborough, director of communications for Chemours, said the company is committed to upfitting the plant to address the concerns.
“As we have stated publicly, Chemours is committed to continuing to work collaboratively with North Carolina officials to address the concerns raised by the community related to our plant operations,” she said in a statement.
“In fact, Chemours recently submitted a comprehensive emission control plan to NCDEQ, which outlines specific commitments and significant investments that we are in the process of making both at the plant site and in the adjacent communities.
“These investments will bring specialized, state-of-the-art emission control technology to the facility that will essentially eliminate air and water emissions of all PFAS compounds, not just GenX.”
Scarborough said the results will make Fayetteville Works “a best-in-class facility and a model for other chemical manufacturing facilities around the globe.”
Political fights and policy questions
Despite the spread of public concern and regulatory action beyond Wilmington, the only legislative response to GenX and emerging contaminants to make it into law are provisions directed only toward the lower Cape Fear region.
Passed in an environmental omnibus after a brief session last fall, a set of water authorities that serve New Hanover, Pender and Brunswick counties were granted $185,000 for monitoring and tests of new filtration systems. Researchers for UNC Wilmington were budgeted $250,000. Critics of the provision pointed to the expanding nature of the problem and said lawmakers should allocate funds to assist DEQ in doing its job.
Cooper vetoed the bill, saying the measure fell far short of what the state needed. Legislators overrode the veto and the bill became law in early October.
The House River Quality Committee, led by Rep. Davis and co-chaired by Reps. Holly Grange, R-New Hanover, and Frank Iler, R-Brunswick, has become the main committee researching what to do about emerging contaminants.
The lawmakers met seven times since forming after the 2017 session, while their Senate counterparts met only once. Lee has led much of the Senate side negotiation.
During a February short session, the two sides tried to reach agreement on ways to pay for a new high-resolution mass spectrometer, a piece of equipment necessary to do the science when dealing with complex compounds measured in parts per trillion.
House members voted 116-0 for a plan that would cover a request for the equipment, staffing and additional tests and monitoring through DEQ and DHHS. Senators countered with an alternative that would cut much of the DEQ funds and set up a new process through the Chapel Hill-based North Carolina Policy Collaboratory, a policy and research center established through a Senate-backed budget provision in 2016.
House members declined to take up the Senate’s offer. Davis expressed disappointment, saying the Senate had chosen to gut the proposal.
Cooper called the legislature’s failure to act “unconscionable.” As the 2018 primary season neared, the issue became even more political.
As the House River Quality Committee pressed ahead, GOP Rep. Jimmy Dixon, a Duplin County farmer who has often locked horns with environmentalists, has repeatedly accused Democrats of politicizing GenX and criticized the media for “scaring the pudding out of people” without the facts to back it up.
In April, at its last meeting before the start of this year’s short session, Dixon said since the water testing showed levels now consistently below the DHHS health goals, the water was fine to drink.
“The water’s clean, folks,” he said. “The raw water is safe, it’s below the 140.”
When the Cape Fear Public Utility Authority and UNC Wilmington officials delivered their reports, he accused the authority of gaming its numbers to support a lawsuit against Chemours to cover the cost of a new filtration system. He called the UNCW studies “political science” designed to raise fears.
New class-action lawsuits, as well as politics, are driving the debate, he said.
Early last year, DuPont settled a class-action lawsuit over C8 contamination in southern Ohio and West Virginia, agreeing to pay $670 million to about 200 plaintiffs.
Dixon said similar lawsuits filed in North Carolina are an attempt to duplicate the West Virginia case here.
Another try
Negotiations on a new bill have taken place mostly behind the scenes. After February’s standoff, Davis told River Quality Committee members that it made little sense to try writing another bill without knowing what the Senate would accept. Negotiations continued through the winter with Davis and Sens. Lee and Wesley Meredith, R-Cumberland.
Last Thursday, a House and Senate meeting on potential new language for a GenX response drew both House Speaker Tim Moore and Senate leader Phil Berger into the room. On Friday, they announced an agreement on new legislation, and identical versions of the new Water Safety Act were introduced in each chamber.
The new legislation included $8 million for the North Carolina Policy Collaboratory to begin work on a statewide monitoring and testing system for emerging contaminants. DEQ would receive close to $2 million for the mass spectrometer and additional technicians and testing. DHHS would receive $531,000 to establish a new water health and safety unit to focus on emerging contaminant studies. Another $2 million would go to assist households with polluted wells to convert to public systems or install additional filtration.
The bill also includes language that changes state law on how the executive branch approaches a potential shutdown of a polluter if it involves the group of compounds known by the abbreviation PFOAs, which includes GenX and other related products.
Last weekend, that language drew criticism from environmental law experts who argued that the provision, which appears to be as targeted at Chemours as state law allows, could actually complicate the state’s response.
Robin Smith, a former DEQ deputy secretary, said the move “muddies the waters” when it comes to enforcement since the state already has the authority to revoke or revise air and water permits necessary to keep operating.
Smith said the legislature needs to clarify whether the new procedure is the only way for the state to act or just an additional option for regulators.
Derb Carter, director of the North Carolina offices of the Southern Environmental Law Center, said he believes that once again the legislature put politics above a safe water supply.
“Rather than clarify or enhance state enforcement authority, this bill imposes multiple requirements on the governor before he can order a facility that is potentially poisoning people to cease all polluting operations and activities—creating unnecessary hurdles to effective action,” Carter said in a statement.
“This is pointless, given the governor’s existing authority, and appears intended to protect the polluter, Chemours.”
A joint statement by the bill sponsors hailed the agreement.
“We are pleased the House and Senate worked together to come up with a comprehensive plan that will help stop the pollution of our water supply, provide our families, neighbors and constituents access to clean, safe water and finally hold Chemours responsible for its pollution,” it read in part.
Cooper spokesman Ford Porter said Friday that, like all legislation, the bill is under study and took a dig at the General Assembly majority over the long stalemate over a GenX response.
“It’s shameful that it took legislative Republicans this long just to agree among themselves and that they appear only to be spurred by election-year politics,” Ford said in a statement.
While Rep. Harrison expressed similar concerns about the timing, after years of ignoring the problem, she said, state leaders are starting to pay attention.
“I’m grateful that this issue has finally become the priority for folks and that we have very thoughtful committee meetings for several months where we really did a deep dive into emerging contaminants,” Harrison said.
Harrison said it has been difficult to convey to her colleagues that the issue is much larger than the Cape Fear and GenX. Even though there have been discoveries of chemical contaminants in the Greensboro water supply and Jordan Lake, a main drinking water supply for the Triangle area, she said the issue is not getting the attention it deserves.
Ultimately, she believes North Carolina and other states will have to adopt the precautionary principle, shorthand for a system in which new compounds must be proven safe before they can be discharged or introduced into the environment.
Europe is shifting in that direction, she said, and that may drive change here, especially among companies that do business in both markets.
North Carolina is a long way from that right now, she said, but the fact that even some conservative members of the River Quality Committee voiced support for the concept is a good sign.
“I’m not sure this legislative proposal gets anywhere close to that,” Harrison said.
“I think the response is inadequate and the funding is inadequate. But I’m glad that people are talking about it. I hope this isn’t the end of it, but just the beginning.”
To learn more
N.C. House River Quality Committee meetings and documents
Water Safety Act — New House and Senate Legislation
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