House bill would expand power of state agencies over water quality, penalties

The Cape Fear River and the City of Wilmington are seen in this Creative Commons photo. Attribution for the photo is to Idawriter at By Idawriter, CC BY-SA 3.0

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  • Bill allows lawsuits, penalties retroactive to 2017.
  • Opponents say authority given to the executive branch in the bill violates the Administrative Procedure Act
  • Supporters say bill is necessary to prevent on-going ground-water contamination that eventually reaches rivers.

During a June 2 House Judiciary I Committee meeting, a clash among business, environmental, and local interests erupted over a bill that addresses continued concern over drinking water in the Wilmington area. House Bill 1095, PFAS Pollution and Polluter Liability, seeks limits on the amount of PFAS chemicals allowed in water and allows state agencies to levy penalties, even retroactively, on those who violate these limits. 

The bill was “for discussion only” in the House Judiciary I Committee on June 2, and there was plenty of lively discussion. If passed through the committee this week, the measure will then go to the House Rules Committee.

H.B. 1095 is sponsored by Reps. Ted Davis, Frank Iler, and Charles Miller — three Republicans from New Hanover and Brunswick counties, which border the Cape Fear River. Contamination of the Cape Fear by PFAS chemicals associated with a “GenX” process has been a major local issue. PFAS refers to per- and polyfluoroalkyl substances, also known as “forever chemicals” because they don’t break down naturally in the environment. Some PFAS in the Cape Fear was traced to a company called Chemours, who uses GenX to make Teflon for non-stick pans. 

The fourth sponsor is House Minority Leader Robert Reives, a Democrat representing Durham and Chatham counties. Reives and other Democrat leaders, including Gov. Roy Cooper and Elizabeth Biser, secretary of the N.C. Department of Environmental Quality, are pushing hard for the bill. 

“People deserve to have confidence in the water they drink and they shouldn’t have to bear the costs of cleaning up corporate pollution,” Cooper said on social media. “Our proposed bipartisan legislation gives us another tool to make sure polluters are held accountable and our water is safe.”

But many representatives of industry and business in the state made clear during the June 2 committee that they had major concerns with H.B. 1095. Carolina Journal spoke with Ross Smith, president of the North Carolina Manufacturers Alliance, before the committee, who spoke about his organization’s concerns with the bill. The NCMA represents 45 manufacturing facilities and 25 business partners in the state, including 3M, Weyerhaeuser, Chemours, and Dupont (the company which created Chemours). 

“We oppose H.B. 1095,” Smith said. “It’ll unilaterally bypass the General Assembly-enacted rule-making process. It will enable DEQ and DHHS to work together and impose new regulations, bypassing and circumventing what the General Assembly had intended with the APA [Administrative Procedure Act] process.”

Smith added that he thinks regulations on these chemicals “certainly should go through the analytical, monitoring, sampling process to make sure that our communities are safe.” He spoke during public comment in the committee, voicing similar concerns about following the APA process.  

The North Carolina Forestry Association and the Chamber of Commerce both spoke during the committee against similar elements of the bill — specifically that the bill circumvents the normal rule-making process. 

According to the bill summary, Part 1 of the bill authorizes the Environmental Management Commission (EMC) “to adopt a maximum contamination level that is acceptable for human consumption” for each PFAS chemical and allows the NCDEQ to enforce these levels. 

Part 2 authorizes the NCDEQ secretary to force parties who exceed these acceptable levels of PFAS chemicals to “pay the public water system any actual or necessary costs incurred to remove, correct, or abate any adverse effects upon the water supply, including procurement and operation of technology to reduce the concentrations in finished drinking water.” 

The secretary can take action against any responsible party who refuses to pay. When a party pays, that money will go to reimburse water-system ratepayers for increased rates they had to pay in order to clean up water. These terms are retroactive to Jan. 1, 2017, making Chemours responsible for past PFAS found in the Cape Fear River. 

Part 3 appropriates $2 million from the state’s General Fund to go to implementing the act. The money would go to NCDEQ, who would then deposit it in a PFAS Public Water Protection Fund. Another $2 million would be appropriated to the UNC Board of Governors, who would distribute it to the N.C. Collaboratory “to conduct research and analysis to provide scientific and economic support for maximum contaminant levels of PFAS established by DEQ.” 

Rep. Davis, who presented the bill and took questions related to it, proposed two amendments — which couldn’t be voted on since the bill was for discussion only — that he believed should satisfy some of the concerns from industry. 

On the first proposed amendment, Davis said only those who manufacture the PFAS could be held responsible. This was in response to many in the N.C. business community worried that simply using products with PFAS chemicals in them could make them liable. Davis said Chemours is the only company in the state that manufactures PFAS, so, at the moment, it would only apply to them. 

Davis then called on Jennifer McGuinness of the Legislative Analysis Division to explain a second amendment clarifying how the rule-making process would apply to chemicals covered in the bill. McGuinness said her language used in drafting the bill had not been clear, and that the “maximum contamination levels” created for these chemicals would indeed be subject to the rule-making process after those numbers were proposed. 

“I have received some questions about the language about whether this would actually exempt the MCLs themselves [from the rule-making process], and the answer is no,” McGuinness said. “The MCLs themselves for PFAS would require rule making. It’s the scientific processes and procedures in Section 1A that would establish the MCLs that would be exempt from rule making.”

Since many of the objections regarding the rule-making process were expressed by industry leaders after these amendments were offered, it is unclear whether the amendments satisfied any of those concerns. 

Opponents say rule-making process and science is unclear

Another concern was raised by the American Chemistry Council, a trade organization that represents almost 200 companies, including Chemours and Dupont, who use chemicals in their business. The ACC said during public comment that regulating PFAS chemicals as a single class was wrong regardless. 

In a statement emailed to Carolina Journal, the ACC also said, “We support strong, science-based regulation of PFAS chemistries that are protective of human health and the environment. Unfortunately, HB 1095 as written would set arbitrary standards that are not supported by the available science. Furthermore, these standards would add to a confusing patchwork of differing state-based approaches, all while EPA is currently working towards federal drinking water standards for the two most prevalent PFAS chemistries. PFAS are a broad class of substances with a wide variety of physical, chemical, and biological properties. It is inappropriate, and not scientifically supportable, to treat them as a class for the purposes of regulation. We look forward to engaging with NC lawmakers on this important issue.”

Another notable public commenter was Jeff Fritz, director of government affairs with Chemours, who posited three questions for the committee to consider: “One: Does DEQ lack a scientific basis to determine maximum contamination levels in the appropriate and statutorily authorized method that already exists? Two: Is it appropriate for a regulatory agency to undermine due process where pending legislation exists in the courts? And three: Does the legislature and the state of North Carolina intend to hold all those who discharge PFAS into the Cape Fear River to the same high standards that Chemours is held to? It sounds like perhaps Chairman Davis’ amendment may exempt some of them.”

Fritz went on to say that the bill was unnecessary and that “all that it calls for in the bill is already occurring in existing law and regulation.” He pointed to the company’s decision to stop putting PFAS into the river voluntarily even though the EPA had no guidance at the time around the chemicals. 

Supporters say companies should be responsible for costs

In response, Davis and some local officials who deal with water supply in the area, claimed that the bill was necessary to prevent on-going ground-water contamination that eventually also reaches the river, and that the bill forces Chemours to pay for water-purification efforts that are causing utility rates to jump in counties around the river. 

Davis ended the committee by saying that he “would fight for his constituents.”

“With all due respect to the gentleman from Chemours,” added Davis, “if he really wants to show that they care about the people that their business affects, then why don’t they pay for all these things that are having to be done in the Brunswick County water system and the New Hanover County water system to make the water safe from the contamination that they put into that river so that people can have safe water to drink? They should be responsible for those costs, not the people who consume the water through those public-utility systems.”

Davis said that Biser would be speaking with the Chamber of Commerce and other industry leaders about their concerns, “several of which have actually been addressed here today.” It remains to be seen if the amendments or any assurances from Biser will be enough to assuage concerns from state business leaders. 

If the bill passes the committee when it’s heard this week and if it eventually passes the House as a whole, Davis said Sen. Michael Lee, R-New Hanover, and Senate Rules Chair Bill Rabon, R-Brunswick, told him they were interested in the bill being heard in the other chamber.