Even more toxic chemicals will be allowed to flow into the Cape Fear River — and Fayetteville’s water supply — following a ruling last month by a judge with the North Carolina Office of Administrative Hearings.
The decision prevents the North Carolina Department of Environmental Quality from regulating the discharge of the likely carcinogenic chemical 1,4-dioxane from polluters releasing it upstream of Fayetteville, allowing more of the toxin to flow into the Cape Fear River, the primary water source of the city’s Public Works Commission.
1,4-dioxane is a synthetic chemical solvent used in various industrial applications. Short-term exposure to 1,4-dioxane is primarily associated with liver and kidney toxicity and respiratory issues and irritation, according to the Centers for Disease Control and Prevention. The U.S. Department of Health and Human Services, International Agency for Research on Cancer and Environmental Protection Agency all agree that 1,4-dioxane is a likely or probable human carcinogen. In its 2023 risk assessment, the EPA determined 1,4-dioxane presents “unreasonable risk to human health.”
While there is no federal or state limit on 1,4-dioxane in drinking water, the EPA recommends a lifetime health advisory for individuals of 0.35 ug/L (micrograms per liter).
Legal battle
The decision is the end result of a quiet legal battle that has taken place between DEQ and the City of Asheboro, which has successfully contested the state agency’s authority to regulate discharges from the city’s wastewater treatment plants that process industry waste. The cities of Greensboro and Reidsville also joined the lawsuit against DEQ after they were issued notices of violation for 1,4-dioxane discharges in 2019, the Coastal Review reported.
Downstream water utilities have fought the lawsuit, including Fayetteville’s PWC, along with the Cape Fear Public Utility Authority and Brunswick County. The group filed an amicus brief in late May asking the Office of Administrative Hearings court to rule in favor of DEQ, which they say affects 750,000 people who rely on Cape Fear River water.
“The Upstream Dischargers would prefer to force everyone else to be responsible for removing their customers’ 1,4-dioxane from downstream drinking water, rather than remove it themselves before discharge or prevent it from getting into their sewer systems – and the Cape Fear River – in the first place,” the brief states.
Yet North Carolina’s top environmental judge, Donald van der Vaart, removed DEQ’s ability to place limits on the amount of 1,4-dioxane that wastewater treatment plants could release when he ruled on Sept. 12 in favor of Asheboro. In the ruling, van der Vaart argued that DEQ acted outside its permitting authority in developing and enforcing a 1,4-dioxane permit limits because of the calculation method the agency used and that 1,4-dioxane is technically classified as a probable carcinogen and not a carcinogen.
In attempting to regulate the chemical, DEQ “acted arbitrarily and capriciously,” van der Vaart said in the ruling.
Southern Environmental Law Center senior attorney Jean Zhuang told CityView that the ruling has broad ramifications for DEQ’s regulatory power over toxic chemicals.
“[Asheboro’s] challenge against it wasn’t just, ‘We don’t like this permit limit, it’s too low, it’s going to ask us to do something [we don’t want to],’” Zhuang said. “They attacked DEQ’s authority to act under this water quality standard at all. So, you know, this is authority that DEQ could use for 1,4-dioxane, for PFAS, for other toxic chemicals that are found in waters throughout the whole state.”
DEQ has appealed van der Vaart’s ruling, according to court documents.
In addition, court documents show Asheboro has requested for DEQ to pay $1 million for its attorney fees in the case, and for the N.C Supreme Court Chief Justice Paul Newby to designate a superior judge to handle the appeal. Newby has been accused of ethical misconduct for presiding over regulatory cases involving Duke Energy, a company for which he owns stock and has repeatedly sided with.
DEQ has opposed Asheboro’s requests, according to court documents.
“DEQ filed a responsive motion asking for the senior resident superior court judge to appoint a judge,” SELC Senior Communications Manager Kathleen Sullivan told CityView.
What it means for Fayetteville residents
An EPA sampling program found North Carolina has some of the nation’s highest levels of 1,4-dioxane, a likely carcinogen, in its drinking water. The contamination is most severe in the Cape Fear River Basin, where residents may be exposed to more than double the national average in drinking water and up to four times the average in other water sources, according to DEQ.
PWC was clear about the impacts the upstream polluters had on the city’s water supply in its amicus brief.
“Discharges from Asheboro’s POTW contribute to the presence of 1,4-dioxane at the location of FPWC’s drinking water intake on the Cape Fear River,” the brief states. “FPWC has incurred costs in the form of ongoing sampling of surface waters and will continue to incur costs in the form of additional monitoring and the cost to install, operate and potentially modify treatment technology as a result thereof. Asheboro’s discharges of 1,4-dioxane directly affect the health of FPWC’s Customers.”
PWC’s latest water quality assessment from 2023 found that 1,4-dioxane levels exceeded the EPA’s advisory limit of 0.35 ug/L in several tests throughout 2022 and 2023. PWC said in the report that it is taking steps to address the contaminant.
“Since 1,4-Dioxane cannot be removed through our traditional water treatment process, we have partnered with other communities to research and identify its sources to reduce or eliminate it so there will be no long-term exposure to our customers,” the report states.
Additional challenges in regulating, removing 1,4-dioxane
Another challenge in regulating 1,4-dioxane is that the process for filtering the toxin out of water is much more challenging than for PFAS, Zhuang said. And it can complicate existing efforts of utilities, like PWC, to remove the forever chemicals.
“The problem with 1,4-dioxane is that it can make what the utilities are doing on PFAS less efficient,” Zhuang told CityView. “So it can interrupt the systems that Fayetteville and Cape Fear Public Utility Authority and any other city that installs treatment to address PFAS. It can get in the way of that treatment and then it’s also not the same technology.”
Despite the difficulties in removing 1,4-dioxane, industries within the Cape Fear River basin are capable of removing the chemical from their waste, Zhuang said.
“The technology absolutely exists for these industries to remove 1,4-dioxane from their waste,” Zhuang told CityView. “They just are not doing it.”
The recent water permitting regulation challenges DEQ has faced led the Southern Environmental Law Center, on behalf of four environmental advocacy groups, to ask the EPA on Aug. 28 to take over North Carolina’s water permitting process instead of DEQ. On Sept. 30, the SELC sent a supplement to the petition referencing the 1,4-dioxane decision, as well as the Environmental Management Commission’s delay and reduction of DEQ-proposed PFAS regulations that were eventually passed on Oct. 15.
“As previewed in the original petition, this case exemplifies the very real harm caused by the legislature’s shift of final permitting authority from agency experts to administrative law judges,” the attorneys said.
The EPA and DEQ have not yet responded publicly to the petition.
Editor’s Note: This article has been updated to include a revised quote from Kathleen Sullivan to correct an initial quote that incorrectly stated DEQ’s responsive motion as “the usual process for a case.” This statement has been updated to accurately reflect the details of DEQ’s responsive motion. This article has also been updated to clarify van der Vaart’s ruling that DEQ acted outside its permitting authority (not rulemaking authority) in developing and enforcing a 1,4-dioxane permit limits (not water quality standards).
Contact Evey Weisblat at eweisblat@cityviewnc.com or 216-527-3608. This story was made possible by donations from readers like you to CityView News Fund, a 501(c)(3) charitable organization committed to an informed democracy in Fayetteville and Cumberland County.
This is crazy so they get to continue to kill us and no water still going on 8 years on bottled water… … This is not acceptable..