State environmental officials in charge of coming up with rules to regulate North Carolina’s water supply are continuing to advocate for proposals that would allow industrial polluters to self-regulate the “forever chemicals” they discharge into local waterways.
The N.C. Environmental Management Commission (EMC), made up of 15 members appointed by elected officials, is responsible for regulating the state’s water resources.
At its Thursday meeting in Raleigh, the commission was set to consider a contentious proposal from the Water Quality Committee, a subcommittee of the EMC, that would allow PFAS waste producers to self-monitor their pollution. PFAS are a group of about 15,000 so-called forever chemicals linked to a number of adverse health effects, including various cancers, heart disease and reproductive issues.
The EMC’s proposed rule would introduce a wastewater monitoring program for PFAS polluters, but it would leave it to the companies to monitor their own contamination levels and institute reduction plans if certain PFAS are detected in wastewater emissions. A new draft presented at the Water Quality Committee meeting would loosen requirements more, excluding specific numerical limits that would trigger remediation plans. It would also exclude the broad subclass of PFAS and only target three forever chemicals — PFOA, PFOS and GenX — in the monitoring program.
The EMC’s proposed rule comes as the local PFAS crisis grows, with well-water contamination spreading to six counties around Chemours’ Fayetteville Works plant and scientists warning of the dangers of eating garden produce grown near the factory.
EMC members have said the self-monitoring rule would result in improved tracking and transparency of PFAS discharges and encourage industries to reduce them at the source, leading to less PFAS in North Carolina’s waterways. Critics, including those in Fayetteville, argue the rules would effectively embolden chemical companies that have a history of deception and evasiveness to further pollute the state’s water resources, as the rules do not carry any means of enforcement.
The rules were expected to be considered by the full committee during its Thursday meeting, but the water quality committee had to delay action because a cost-benefit analysis was completed only a few days earlier, according to committee members.
In addition to the PFAS rule, a similar rule was proposed by the water quality committee for 1,4-dioxane, another toxic chemical plaguing the Cape Fear River Basin. Committee members said action on that rule also had to be delayed because the cost-benefit analysis was not ready in time.
Transparency concerns continue
While the proposed rules have raised significant concerns from environmental rights groups, they have also led to transparency questions for the EMC, including some raised by its own members at the meetings this week.
At the Water Quality Committee meeting on Wednesday, Commissioner Marion Deerhake, an appointee of former Gov. Roy Cooper, expressed concern about the changes that would eliminate the PFAS limits that trigger remediation plans. She said she had not been made aware of the changes before receiving the meeting materials.
“I would appreciate knowing a bit of background about what has occurred in the last few weeks since our last meeting,” Deerhake said. “It appears that the draft of the rule that we have before us in today’s package, and it’s there for us to read, has some substantial changes in the threshold or the trigger for developing a minimization plan compared to what we heard in the March meeting. And is that not a reason for the committee to review the revisions that were made outside of the committee?”
In response, Committee Chair Steve Keen acknowledged the changes had been made among select members of the Water Quality Committee.
“Over the last month, we’ve been engaged in taking direction from a subcommittee of this committee,” Keen said. “We have taken that direction and applied it directly to the draft rules that y’all have.”
Another member of the Water Quality Committee who said he was involved in the draft revisions, Tim Baumgartner, referred to the group as “the subcommittee of the subcommittee.”
In the full committee meeting on Thursday, Keen and the others who had a hand in the draft revisions said the group was not an official body subject to open meetings laws.
“I must apologize to the public if I said subcommittee, because it’s never been a subcommittee, as you know, and as Director [Richard] Rogers knows, it’s a study group that was put together at his request asking me to participate,” Keen said.
Commissioner Robin Smith, another Cooper appointee, also raised transparency concerns.
“If there is going to be a subcommittee of the commission working on a set of rules, I think the commission as a whole needs to know that at the beginning and not at the end,” Smith said. “But the other question it raised, and I think this may be something we should get some legal advice on, is whether open meetings law applies to those meetings. Open meetings statute does not limit itself to the commission and its standing committees. It also applies to ad hoc committees and special committees and task forces and a number of other things.
“So I think we need to be very transparent about what’s going on in our rulemaking process. Transparency beginning at least with the other commission members knowing what’s going on, but also the public, to the extent open meetings law applies to those meetings.”
EMC Chair John Solomon said he would “look into” Smith’s concerns, but disagreed about the nature of the meetings.
“We did not name an official subcommittee,” Solomon said. “And I have corrected Commissioner Keen. I won’t correct him in public, but his habit is to call everything a subcommittee.”
Water Quality Committee Vice Chair Michael Ellison downplayed the rule-making discussions that took place without the knowledge of the public or other EMC members. He referred several times to the appreciation of industry stakeholders of the rules they had come up with.
“It was a working group, or whatever you want to call it, that the department pulled together, speaking with various stakeholder groups,” Ellison said. “And sometimes some of the committee members were on those calls, and I heard very positive feedback. Stakeholders at the beginning of these meetings were very appreciative of the opportunity to interact with the department and in the construct of the PFAS rules.”
Still, Ellison acknowledged there was some uncertainty regarding the method he and other EMC members used to revise the rules.
“Procedurally, I don’t know, there might be some questions,” he said.
The EMC is expected to consider the rules again at its next meeting in July. If approved, they could go into effect as early as next spring.
Government accountability reporter Evey Weisblat can be reached at eweisblat@cityviewnc.com or 216-527-3608.
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