Lawmakers attempt to deflect blame, assail Cooper administration at special GenX hearing

On Wednesday afternoon, the legislature’s Environmental Review Commission looked to its legal staff, state environmental and health officials, and a UNC Wilmington scientist for answers to their questions about how GenX wound up contaminating the drinking water in three counties.

However, many of these same legislators failed to look at themselves.

And in doing so, they ignored the most recent history of budget cuts, their own anti-regulatory measures and the consequences of a “customer- and business-friendly” Department of Environmental Quality advanced under previous secretaries John Skvarla and Donald van Der Vaart.

In addition, they glossed over the fact that they, as lawmakers, could pass legislation to set standards or prohibit GenX in surface or drinking water.

“You, you, you, you — all of you had a hand in this,” said Daniel Zielinski, a Wilmington resident by way of Chicago.

Billed as an “investigative hearing,” the public ERC meeting was held in Wilmington, where the emerging, unregulated contaminant was first detected at the Sweeney water treatment plant. Chemours, a spinoff of DuPont, is responsible for discharging the chemical compound into the Cape Fear River, the drinking water source for Wilmington and several communities downstream. The company has stopped discharging GenX as of mid-July.

Over nearly four hours, with more than 100 members of the public in the audience, lawmakers seemed bewildered. “Why is industry allowed to keep health study data proprietary?” Sen. Dan Bishop asked, apparently not realizing that the legislature approved $1.3 million for a company to hide its full ingredient list of chemicals it plans to put in Jordan Lake.

They then moved on to skepticism. Sen. Brent Jackson told Secretary of the Environment Michael Regan: “You have a budget, with federal and state money, of $200 million. The governor’s request is $2.5 million. You can’t find that amount?” Apparently, Jackson did not remember lawmakers’ cutting the NC Department of Environmental Quality’s budget by millions of dollars over the past six years — $1.9 million this year alone.

Nor did lawmakers ask to speak with Tom Reeder, former director of Division of Water Resources and Assistant Secretary for Environmental Protection. It was in the latter role that he was copied on an email in November 2016 alerting him and DWR to problems with GenX in drinking water. Reeder is easy to find. He’s now a policy advisor to Senate President Pro Tem Phil Berger.

Despite citizens’ pleading to grant the request, lawmakers still balked at approving Gov. Roy Cooper’s $2.58 million ask for the NC Department of Environmental Quality and Department of Health and Human Services to address the GenX and other as-yet-unknown drinking water contaminants.

“Most of you have voted to cut environmental laws and funding,” said Darlene Powell of Wilmington. “The real reason for any legislative action is for coddling industry. You gut these programs to help companies increase their profits.”

[Tweet ” “This is $2.5 million…The state has a rainy day fund. It’s rained in Wilmington.””]

More than $2 million would be used for monitoring and enforcement at DEQ, and would include 16 positions — scientists, chemists and support staff — within the Division of Water Resources. It would help DEQ employees plow through the two-year backlog of permits and conduct further monitoring in waterways statewide.

The $500,000 would fund several positions at DHHS, including a second toxicologist. Currently the Occupational Health Division employs just one toxicologist to cover the entire state, and whose job has been to focus on private well water.

Rep. Deb Butler, a Democrat from Wilmington, also supported the DEQ/DHHS funding. “It makes far more sense to fund them than UNCW,” she said. “It’s fine if UNCW has a support role. This is $2.5 million in a $23 billion budget. The state has a rainy day fund. It’s rained in Wilmington.”

Much of the interrogation was directed at Regan, who was asked to justify how the funding would help the residents along the Cape Fear — and why he couldn’t simply redirect money to the Division of Water Resources.

“We have redirected resources to 1-4 dioxane,” [another emerging contaminant, found in the Haw River] and before that we redirected them to coal ash. At some point, we run dry.”

Rep. Jimmy Dixon, who was recovering from knee replacement surgery and thus a bit under the weather, challenged Regan’s assertion that 70 positions were eliminated from DWR as the results of budget cuts.

Dixon, a Duplin County Republican, acknowledged that lawmakers cut $2 million in 2013 after the legislature consolidated the Divisions of Water Quality and Water Resources. But, he pointed out, of the 70 positions, 35 were vacant. And DEQ, under Skvarla, chose to reduce the workforce within DWR. That contributed to the backlog of permit reviews, which is now two years’ long.

“I’m not going to question why the previous administration cut 35 positions,” Regan replied, “but we also lost support staff. Seventy is not all that was lost. And industry doesn’t want to wait two years for a permit.”

Regan was also taken to task for publicly stating in June that Chemours had not broken the law in discharging the chemical under the terms of its state permit.

“I made that statement in the beginning of the investigation. I was asked the question, ‘What punitive action was I going to take?’ At that moment because I had no evidence there was illegal activity or a compromise of the permit, I said they hadn’t broken the law. More artfully stated, I should have said, ‘They may not have broken the law.”

DEQ has not issued a notice of violation to Chemours, Regan said, because the department and its general counsel is still reviewing thousands of pages of documents, some dating back at least 15 years, to determine if the company illegally withheld information.

Chemours is operating on an expired discharge permit, which is up for renewal this fall. Already, DEQ has indicated it will prohibit the company from discharging GenX as a condition of the permit.

In 2010 and 2015, Regan said, DEQ spoke directly with DuPont/Chemours. At the time, the company maintained that no effluent would reach the Cape Fear because “it was closed loop process.”

As Policy Watch reported last week, the Division of Water Resources and Reeder were aware of the concerns about GenX in the drinking water last fall — a clear indication that the “closed loop” had a hole.

But there was no mention of an email from NC State University scientist Detlef Knappe in the transition documents between administrations. Regan said he the first time he heard of the GenX issue was in early June — even though current DWR staff and Reeder were copied on that email.

Regan said that DWR staff likely didn’t bring the email to his attention because there was a “lack of understanding about GenX,” noting that the scientific data on it is scarce. “Based on conversations with staff,” Regan went on. “This was going to be something to revisit as they got to it.”

After four hours, lawmakers approved a vague proposal by Sen. Mike Lee, a Republican from New Hanover County. (He’s not on the ERC.) He asked General Assembly staff to work with scientists from UNC Wilmington and the Cape Fear Public Utility Authority on an “action plan.” The details of the plan were unclear, only that it would “address the matter before us.”

Lee had originally asked that the governor’s appropriation go to the university and the utility. Wilmington resident Darlene Powell asked the ERC not to follow through; if anything, she said, money should be allocated to schools in the affected area so they can provide GenX-free drinking water. “You’re worried about where money is going to go,” Powell said. “Please don’t give millions to the CFPUA to file a lawsuit against Chemours.”

Sen. Trudy Wade, a Guilford County Republican, is a co-chair of the ERC and has co-sponsored dozens of anti-regulatory bills. She opted not to vote on a recommendation for the appropriation request. “We’ll take it up at the September meeting,” she said.

The audience groaned.