PW special report part two: Lax local regulation allows toxic carcinogen to infiltrate drinking water across the Cape Fear River Basin

This is the second of a two-part story about the conflict between upstream and downstream communities over 1,4-Dioxane in the Cape Fear River Basin. Part 1 published yesterday.

2,600 words, 12-minute read

It took a little more than two weeks for the wastewater contaminated with the toxic chemical 1,4-Dioxane to travel the 50 miles from Greensboro to Pittsboro. On Aug. 23, 2019, thousands of taps in the small Chatham County town flowed with water containing levels of the compound up to 300 times greater than the health goal set by the EPA.

An industrial user had discharged 1,4-Dioxane into Greensboro’s TZ Osborne wastewater treatment plant on Aug. 7. Since traditional technologies can’t remove the compound, it escaped and continued downstream.

After Pittsboro, the compound flowed to Jordan Lake, a drinking water supply for hundreds of thousands of people in the Triangle; to the Cape Fear River, which serves dozens of communities in Johnston and Harnett counties; on to Fayetteville, and all the way to Wilmington, in New Hanover County.

Meanwhile, Greensboro utility officials, who knew there had been a spike in 1,4-Dioxane levels at the treatment plant, failed to immediately notify the state or any of their counterparts downstream. There was no numerical “trigger” that required them to do so, Greensboro officials later said.

On Sept. 10, a full month after the Greensboro discharge, 1,4-Dioxane levels spiked in pre-treated drinking water entering Wilmington’s Sweeney plant. The raw water, as it’s called, contained 6.3 parts per billion of 1,4-Dioxane — 18 times the excess lifetime cancer risk.

(This is the risk that an additional person out of 1 million people would develop cancer due to exposure to a toxic substance over lifetime.)

Although that concentration was much lower than Pittsboro’s — likely because of dilution as the contaminant made its way downstream — it was, and still is, the highest detected at the Sweeney plant since monitoring began in 2017. 

The Sweeney plant had already installed costly technology to reduce levels of 1,4-Dioxane, so the treated drinking water for Wilmington residents contained 1.3 ppb, still higher than the lifetime excess cancer risk, but markedly lower than what was coming in.

By the time Greensboro officials notified the NC Department of Environmental Quality of the 1,4-Dioxane spike on Sept. 27, as part of the utility’s required monthly discharge report, most of the contamination had moved down the Cape Fear River and been swept out to sea.

Greensboro’s discharge and ensuing contamination more than 170 miles away exemplifies how downstream utilities and communities are at the mercy of upstream industry and utilities. These effects also show how the lack of strict regulation of these emerging compounds shields industry, and even the utilities themselves, from significant consequences.

“It’s an existential issue,” said Vaughn Hagerty, spokesman for the Cape Fear Public Utility Authority, which owns and operates the Sweeney plant. “Wilmington sits at the end of a long river.”

“It takes courage for a downstream utility to raise their hand and say our water isn’t safe,” said Geoff Gisler, senior attorney with the Southern Environmental Law Center and leader of the firm’s Clean Water Program. “They’re given this black box. The river doesn’t come with an ingredient label.”

Fayetteville is one of the cities that withdraws from the Cape Fear River for its drinking water. Since 2014, Mick Noland, chief operating officer of Fayetteville’s Water Resources Division, has sent dozens of emails to DEQ and Greensboro advocating for clear water quality standards for 1,4-Dioxane and other emerging compounds. 

The EPA has not set enforceable standards, only health goals that appear to be contradictory. The state follows the EPA’s lead. 

For example, the EPA has recommended that surface water that serves as a drinking water supply contain no more than 0.35 parts per billion of 1,4-Dioxane. 

But recommendations for the drinking water itself are much less protective of public health: 35 parts per billion, or 1 in 10,000 lifetime excess cancer risk. That level is considered an unacceptable health risk for cancer, based on what toxicologists call “a cancer potency factor.”

Two years ago, Noland emailed DEQ and upstream utilities, “Given the lack of clarity that surrounds which is the appropriate number to use, how do we go about getting this resolved?” 

Noland told Policy Watch this week that there is a “huge disconnect” between the two levels. “We need to set the goal, fix the standards and then plan to meet them,” he said. “We can work together or we can fight about it.”

However, since water treatment plants must spend millions of dollars to reduce 1,4-Dioxane levels in the drinking water, it might not be feasible to get those concentrations down to zero. That’s why cutting off the source of the contaminants is so important.

“If there’s an industry that generates 1,4-Dioxane, it needs to be stopped,” Noland said.

Shielding industry from scrutiny

Shamrock Environmental in Browns Summit north of Greensboro does the dirty work none of us wants to think about. The company contracts with other industries throughout the Southeast for oil recycling, hazardous and non-hazardous waste hauling and storage, and decontamination and vacuum services for trucks.

This waste has to go somewhere: a landfill, an incinerator, a storage facility or into the sewer system.

Shamrock Environmental is supposed to confirm what’s in the wastewater and treat it before sending it through the sewer to TZ Osborne. But on Aug. 7, the company discharged 15,825 gallons of “non-hazardous wastewater” originating from a customer that did not report the material contained 1,4-Dioxane.

Initially, Greensboro declined to name Shamrock as the contaminant source, citing confidentiality agreements. Only public pressure forced the utility to disclose the information in a press release; Shamrock sent one as well, but refused to say where the 1,4-Dioxane originated.

Roughly 40 industries send their wastewater to TZ Osborne, and little of that discharge information is public record. State law makes customer billing data confidential, ostensibly to prevent third parties from gathering personal information.

But companies have exploited the law to try to keep secret the contents of their wastewater discharge, under the pretense that to disclose them would give away their trade secrets. Only the regulators, including the utilities, know all of the details.

In a 2018 email, Elijah Williams, Greensboro’s water reclamation manager, alerted industrial customers to a public records request from several media outlets asking for data summaries and permits:

The Industrial Waste section will continue to work with our legal department to review our practices, policies and requirements to ensure that we protect your industry’s safety, trade secrets, and means of operation. In the near future we might have requests of you to help us insure those protections.”

The city eventually agreed to provide the permits.

But it’s important to be transparent not only about what industry is permitted to discharge, but what it’s actually discharging. Mike Borchers, director of Greensboro’s Water Resources Department, said the utility “understands and demonstrates the importance of transparency both internally and externally with our customers and stakeholders. We view transparency as the key to strengthening relationships and it ensures accountability across our organization.”

But a lot happens behind the scenes —  not included in the monthly billing inserts or posted on a city website — that raises questions about what the public is allowed to know.

In November 2014, Rick Moody, site environmental leader for Proctor & Gamble, a discharger  into Greensboro’s wastewater treatment system, asked a utility about a voluntary sampling protocol. In his response, William Burdick, an industrial compliance coordinator, seemed to tell the company not only how to report the contaminants in its wastewater, but also how not to report:

Hi Rick, If you sample from the designated sampling point described in your permit you are required to report it and I would have to put in your database and file (whether the parameter is on your permit or not). However if you are able to remove the sample hose (if there is slack in the hose or just add an extension to the hose) and move it upstream from the designated sample location, just one or two feet, you could use the same composite sampler and you would not be required to report it.”

Mike Borchers, director of water resources, said the context for Burdick’s email was an annual industry meeting held the day before. There, the utility presentation included information on 1,4-Dioxane and “procedures for facilities that wanted to sample their process wastestream voluntarily for their own information.”

Burdick’s email was a “clarification of the discussion,” Borchers said.

In June 2019, Borchers shared 1,4-Dioxane data from the Piedmont Triad Regional Water Authority with Jana Stewart, an engineering supervisor in the Greensboro Water Resources department.

Stewart was to send the 1,4-Dioxane data to a city contractor to be included in a voluminous report assessing the Greensboro utility’s “vulnerabilities and operational concerns.”

PTRWA gets its water from Randleman Lake, which is part of the Cape Fear River Basin. In turn, the authority sells it to Greensboro and other communities. The regional water authority has detected 1,4-Dioxane in the lake, the source of which is an abandoned Seaboard Chemical plant.

“Please mention to [the engineering firm Black & Veatch] the 1,4-Dioxane results should not be shared outside their organization,” Borchers wrote to Stewart.

Stewart replied: “So how does that work in the report? The report will be public record eventually.”

“It’s okay buried in the report. Just don’t want it to stick out like a sore thumb,” Borchers replied.

Asked about the email, Borchers told Policy Watch that the Black & Veatch report was a study conducted for the department, but 1,4-Dioxane data was “not generated or paid for by the City of Greensboro” and was just one part of an overall assessment.

However, TZ Osborne data was included in one of the email attachments. They showed spikes in May and October of 2018, as well as more common concentrations, with an average of 92 ppb — 260 times the surface water standard.

And the Piedmont Triad Regional data showed that in 2017 and 2018, High Point’s effluent routinely exceeded surface water standards, and twice it was 125 to 150 times higher.

Even though utilities are in charge of regulating their industrial users, the companies have an advantage: The utilities’ revenues, in part, depend on the amount and type of wastewater the companies send them. The larger economic fortunes of the city or a region can hinge on whether industry locates or stays there.

“The municipalities say if you start tightening on the industrial users, they’ll go somewhere else,”  said Gisler, senior attorney with the Southern Environmental Law Center and leader of the firm’s Clean Water Program. “Regulations need to come down from the state to level the playing field.”

Critics of DEQ often complain that the agency doesn’t use its full authority to crack down on polluters, even when there are clear rules from the EPA about maximum contaminant levels. But “emerging contaminants” like 1,4-Dioxane, GenX and perfluorinated compounds (PFAS) “” have no such enforceable numeric standards.

That regulatory vacuum has been filled with differing legal opinions on how much enforcement power DEQ can wield.

DEQ spokesperson Anna Gurney told Policy Watch that the agency does not view emerging contaminants as “unregulated.”

“We are using our authority to regulate emerging compounds,” Gurney said. The Division has many examples of limits put in permits for which there are no North Carolina numeric water quality standards.”

Chemours, for example, can’t discharge any GenX into the Cape Fear River, as stipulated in a Consent Order. The EPA has not set a maximum level for GenX.

Gisler said the notion that 1,4-Dioxane is “unregulated” isn’t true. The federal Clean Water Act regulates contaminants — and those who discharge them into waterways even if the EPA has not established an enforceable standard.

The basis of the Clean Water Act is “not how much can we let them pollute but how much can we keep out,” Gisler said.

“That’s why pretreatment matters,” Gisler added. “The law is written to avoid this problem entirely. If you require municipalities to investigate their discharges, then they can force companies like Shamrock to install technology and the contaminants never get into the water.”

Paul Calamita, chairman with the Richmond, Virginia-based law firm AquaLaw, is also general counsel for the North Carolina Water Quality Association, composed of local governments and wastewater specialists.

Calamita said without approved testing methods, it is “completely impracticable to analyze for every chemical in a discharge. We address the ones that matter to DEQ or the EPA. Those chemicals change over time. Some are dropped, others added. The regulatory levels change over time. Like everything else in life, we need to focus on the chemicals that matter to either aquatic life or human health.”

In Greensboro, while the industries’ voluntary reduction program had decreased 1,4-Dioxane by 80% by 2018, from a human health perspective, it was hardly a success story.

Of the 17 monthly samples collected at TZ Osborne from December 2017 to February 2019, all were far above the EPA’s goal of 0.35 ppb for surface water. Three times, in May and August 2018, the levels ranged from 650 to 1,800 times greater than that goal.

Two samples taken in April and May 2019 exceeded the threshold by more than 1,000 times.

“Greensboro has the authority to stop the discharge,” said Emily Sutton, the Haw Riverkeeper. “DEQ has the authority to stop this discharge. Downstream communities have been dealing with this for four years.”

_________________________

A proposed Special Order by Consent (SOC) between the DEQ and Greensboro sets a numerical goal on the amount of 1,4-Dioxane the city can discharge into surface water: An average of 60 ppb in the first year, and an average of 35 ppb in the second.

Neither amount achieves the EPA’s health goal of 0.35 ppb in surface water.

“It’s far too lenient,” said Sutton.  “Two more years to get to 35 parts per billion? There are too many downstream communities drinking toxic water. Non-detect should be the goal.”

A DEQ spokesperson told Policy Watch that the 60 ppb target for the first year was based on seasonal flow conditions in the river, as well as the amount of discharge flowing into and from the utility. For example, the amount of 1,4-Dioxane can vary depending on the amount of rain the river and its tributaries receive.

“It’s not as tough as it ought to be,” said Noland of Fayetteville’s Water Resources Department. That city has measured 1,4-Dioxane in its wastewater at just 1 to 2 parts per billion — above the EPA health goal, but as Noland pointed out, “a long way from 35.”

Based on 2020 data from the utility, the order would set targets that Greensboro has achieved several times already. “It’s unclear whether these concentrations are reductions or the status quo,” Hagerty, the CFPUA spokesperson said. “We prefer goals for further reductions.”

DEQ did not directly answer a question from Policy Watch seeking clarification on the targets. A spokesperson said only that Greensboro has been working to reduce 1-4 dioxane while SOC negotiations were ongoing. The Division of Water Resources is continuing to monitor the situation during the public comment period on the draft order.

Greensboro would also be subject to additional reporting requirements and investigation of 1,4-Dioxane dischargers. Greensboro would also have to determine background levels of the compound in wastewater, analyze the contents of any new discharges and pursue voluntary reductions at the source.

If the city fails to comply with the order, it faces additional fines.

Greensboro’s discharge contributes to the exceedances downstream, but they aren’t the sole source. On June 12, 2019, Reidsville discharged wastewater containing the compound at 367 ppb into the Haw River.

Reidsville and DEQ are also negotiating a Special Order by Consent. Chuck Smith Jr., Reidsville’s public works director since 2018, told Policy Watch that the city is “seeking support, guidance, information, and technical assistance” from DEQ to work with its industrial users and establish pretreatment requirements to address the contamination “under existing law and regulations.”

Since the document is not yet public, it’s uncertain whether Reidsville will be fined.

Greensboro does face a financial penalty, not only for the 2019 violation, but “any and all other alleged violations related to 1,4-dioxane dating back to Dec. 1, 2017,” when monitoring and reporting requirements began.

The amount of the fine for up to two years’ worth of violations: $5,000.

That’s equivalent to not even one cent for each of the roughly one million people who drink water from the Cape Fear River Basin.

Emails Dioxane Greensboro Reidsville (Text)

Above: Read several emails cited in this article or you can find them at this link.