Roy Cooper, Governor Michael S.

Regan, Secretary

May 24, 2018

MEMORANDUM

TO: INTERESTED PARTIES

FROM: NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY

Re: DEQ Response to the Water Safety Act (SB 724/HB 972)

On May 17, 2018, the Water Safety Act was introduced in companion bills in the North Carolina
House and Senate (SB 724/HB 972). The Department of Environmental Quality (DEQ) has
reviewed the proposed legislation and determined that most of its provisions are unnecessary and
very likely to impair DEQ’s current activities to identify and control the releases of per- and
polyfluoroalkyl substances (PFAS), especially GenX and related compounds. By fracturing
DEQ’s core mission of environmental protection and shifting large components of the agency’s
work to other entities, the legislation will result in significant inefficiency and lack of
accountability in the state’s response to complex PFAS issues. While providing extravagant
funding to those other entities, the bill fails to make a long-term investment in DEQ’s regulatory
programs that have been subject to budget cuts since 2011. The legislation also has several legal
defects, including conflicts with existing statutes and vulnerability to constitutional challenges.

DEQ’s specific comments are listed below:

Section 1: In Section 1.(a), the bill authorizes the Governor to “require a facility to cease all
operations that result in the production of a pollutant” under certain defined conditions. This bill
unmistakably targets the Chemours facility in Bladen County where DEQ, through an extensive
investigation and numerous enforcement actions, has already invested significant resources to
identify all sources of PFAS compounds and to control the release of PFAS compounds into the
environment. The bill provisions are wholly unnecessary considering DEQ’s existing authority
to suspend and revoke permits, to take emergency action to protect public health or the
environment, and to seek injunctive relief in court. The adoption of new enforcement criteria in
the Water Safety Act could cloud the scope of DEQ’s existing authority and impede DEQ’s
ongoing actions against Chemours. Further, Section 1.(a) contains potentially ambiguous terms.
For example, the bill authorizes action against a facility for activities that result in “production of
a pollutant” without identifying whether such a pollutant must be a PFAS compound. The
proposed text of G.S. 143-215.3(g)(3) discusses “unauthorized discharges” into the air, even
though the relevant definitions in G.S. 143-213 indicate that a “discharge” excludes emissions
into the atmosphere. This ambiguity combined with the lack of any prescribed procedural steps
could invite a facial constitutional challenge by an affected party for lack of due process. Indeed,
at its March 22, 2018 meeting, the House Select Committee on North Carolina River Quality was
advised that an action to shut down a facility would raise due process concerns. Section 1.(b)
conspicuously limits the use of this unneeded and potentially unlawful authority to the
Governor’s current term by establishing a sunset date of December 31, 2020.

Section 2: DEQ has directed Chemours, at its expense, to coordinate with local governments to
provide access to public water supplies to replace contaminated wells. Thus, DEQ has already
used its existing authority to do what is prescribed in Section 2.(a) and this section is
unnecessary. DEQ supports the $2 million in funding for local governments to provide public
water as provided in Section 2.(b). DEQ has extensive experience with establishing new water
supplies to replace contaminated wells, including recent work performed under similar
provisions in the Coal Ash Management Act (CAMA). However, unlike CAMA, the Water
Safety Act unnecessarily makes DEQ’S actions on PFAS-contaminated wells dependent on the
direction of the Governor. Whereas CAMA provides DEQ with funding through collection of
fees from regulated utilities that can be used to oversee replacement water supplies, the Water
Safety Act provides no additional funding to DEQ for this purpose. From our experience under
CAMA, DEQ should have discretionary authority to consider (a) the cost and distance associated
with connections to public water supplies and (b) the suitability of public water supplies to
ensure they are not impacted by PFAS compounds above the level defined for contamination of
private wells. In addition, there should be a mechanism that would require a responsible party to
reimburse if a local government receives funding from DEQ

Section 3: Section 3 funding is for “nontargeted sampling.” Nontargeted testing may identify
whether a compound is present but it does not identify the concentration of those compounds.
Therefore, a baseline and treatment removal efficiency, as required in Section 3, cannot be
determined.

Section 4: DEQ is very concerned with the provisions in Section 4. Without providing any new
resources to DEQ, the bill requires DEQ to develop a plan for corrective action and monitoring
of PFAS contamination in surface water and groundwater. There are no geographic limitations
in this section of the bill, which will require a significant diversion of resources by DEQ. Under
DEQ’s existing authority, the responsible party bears the burden of assessing and remediating
environmental impacts, including drafting of plans for DEQ review. In the case of the Chemours
facility, DEQ has already required the company to submit and implement extensive workplans
for remediation. Shifting this responsibility to DEQ would simply alleviate the burden on the
responsible party.

Section 5: The bill requires the Department of Health and Human Services to consult with
federal agencies and, under the coordination of the North Carolina Policy Collaboratory, with
public and private institutions on the process of establishing PFAS health goals. This work is
completely unnecessary and ignores the same work already being performed by the Secretaries’
Science Advisory Board, the majority of whose members are employed at the institutions
identified in Section 5.

Sections 7 and 8: North Carolina universities can make an important contribution to address
emerging compounds by conducting health studies to define the toxicity of emerging compounds
and their effects on human health. Sections 7 and 8 would go far beyond that and result in a
wholesale transfer of DEQ’s water quality monitoring program to public and private universities.
The collection of the baseline data for emerging compounds like GenX and 1,4-dioxane should
lie with DEQ, the regulatory agency responsible for the characterizing the state of the
environment, not with the university system. The universities do not have the authority to act
based on the data they gather. The regulatory process is fundamentally rooted in law, and data
collection by staff and students that could be challenged in legal proceedings could jeopardize
DEQ’s ability to enforce the law. Without any reasonable justification, the legislation appears to
divorce data gathering from development of regulatory policy, rules, and enforcement based on
the gathered data. This is a misguided attempt to carve up DEQ’s mission of protecting the
environment and public health. It will require another layer of coordination to align the data
gathered by the universities with the regulatory requirements of the Department. This
inefficiency is not an effective use of tax dollars and will slow down the process of holding
violators accountable.

Similarly, providing $8 million for the North Carolina Policy Collaboratory to become the lead
in environmental monitoring for PFAS and other emerging compounds sets up inefficiencies by
funding duplicative work and causing regulatory uncertainty for all parties. A clear example of
this redundancy is found in Section 8.(b), which identifies three research objectives that are
being evaluated by DEQ.

Sections 9, 10, and 11: The funding provided to DEQ in the bill addresses some short-term
needs related to identification, detection, and regulation of emerging compounds. However, in
certain key areas bill text deviates from specific requests made by DEQ. For example, in Section
11, the funding for a triple quadrupole mass spectrometer does not match DEQ’s request for a
better and more versatile instrument at the same cost. The funding in this bill is far from the
amount needed to enable DEQ to develop a comprehensive and integrated approach to emerging
compounds in North Carolina. DEQ remains committed to protecting the environment and the
public, and seeks partners who share this important goal.
Section 12: This section requires NPDES permit holders to submit to DEQ information for
public disclosure of pollutants identified in the permit application. Because this new requirement
would not be incorporated into existing statutes or rules, DEQ may not have authority to enforce
it.