Analysis: Water Safety Act constitutionally suspect, could slow down enforcement, clean up

By: - May 24, 2018 3:43 pm
Rep. Ted Davis Jr., a New Hanover County Republican (Photo: NCGA)

It’s curious how two legislators, who, in their day jobs are attorneys, have co-sponsored bills that leak state and federal law like a sieve.

The Water Safety Act — Senate Bill 724 and  its identical companion legislation House Bill 972 — pretend to strengthen regulations and enforcement against Chemours, but in reality, make the state vulnerable to legal action by the company and do little to clean up GenX contamination.

The legislation could be folded into a larger budget bill, making it all but impossible to defeat.

Primary sponsors of the House version are Republicans Ted Davis Jr. (the lawyer of the bunch), Holly Grange, Frank Iler and Bill Brisson. They all are members of the House Select Committee on River Quality.

The Senate counterpart is co-sponsored by Republicans Mike Lee, an attorney, plus Bill Rabon and Wesley Meredith.

The Department of Environmental Quality and Gov. Cooper both issued statements and analysis critical of the bill today. But environmental lawyers, policy analysts and environmental groups, have also chimed in. They have noted the bills’ serious legal defects that could hamper cleanups, run afoul of current state and federal laws, and deprive Chemours and other polluters their constitutional right to due process.

Sen. Mike Lee, a Republican from New Hanover County (Photo: NCGA)

The bills makes DEQ’s actions dependent on the governor, who is authorized to issue an administrative order to “require a facility to cease all operations that result in the production of a pollutant.” (In the bill, “pollutant” is not defined.)

“On its face, a governor’s order sounds like a quicker and more direct way to stop the release of these pollutants,” wrote former Assistant DEQ Secretary Robin Smith, now a lawyer and consultant in private practice, on her environmental blog. “In reality, any order could be appealed in an administrative hearing and the administrative law judge has the power to prevent the order from going into effect until there has been a final decision on the appeal.”

[bctt tweet=”#GenX bill is divorced from reality” username=”NCPolicyWatch”]

Those appeals can take months; meanwhile, contamination could continue unabated.

On the other hand, DEQ can go directly (and quickly) to court for an injunction, which the agency has already done in Bladen County to stop Chemours from discharging GenX offsite.

While the legislation appears to target Chemours and its “discharge” of GenX and fluorinated compounds, DEQ pointed out that “discharges,” as defined in state law, exclude air emissions. GenX-related compounds are being emitted into the air from the Chemours plant and contaminating surface water, soil, groundwater and drinking water — topics also extensively discussed in the House River Quality Committee.

In addition, the bill sponsors seemed to go out of their way not to fund DEQ, other than $2.3 million worth of breadcrumbs. “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,” DEQ said in its analysis.

By comparison, the bill serves as an ATM for other entities: the Cape Fear Public Utility Authority ($450,000), local governments ($2 million), the state health department ($530,000), and the NC Collaboratory at UNC ($8 million), whose research director is Jeffrey Warren, former science advisor to Sen. Phil Berger.

The Collaboratory’s windfall would be used to essentially replicate what DEQ and the Science Advisory Board are already doing: monitoring, sampling and recommending health goals — but without any regulatory authority to act based on the data they gather.

“Data collection by staff and students that could be challenged in legal proceedings and could jeopardize DEQ’s ability to enforce the law,” the agency wrote. “Without any reasonable justification, the legislation appears to divorce data gathering from development of regulatory policy, rules, and enforcement based on the gathered data.”

These point had already been underscored — apparently to no avail — during a House River Quality Committee meeting earlier this year.

[bctt tweet=”A wholesale transfer of @ncDEQ water monitoring program to universities” username=”NCPolicyWatch”]

DEQ called the new duties of the Collaboratory “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.”

From an open government perspective, the bill creates yet another hurdle for journalists and concerned citizens to learn about what’s occurring behind the scenes. The Collaboratory’s meetings are public, as are its meeting minutes. But presumably scientists scattered throughout the UNC System and private universities would do the work. Requesting documents related to these scientists’ activities would require going through the university system.

UNC, for example, is notorious for failing to provide public records in a “reasonable amount of time,” as spelled out in the law. It’s also unclear from the legislation if similar records housed a private university would be subject to the Public Records Act.

Without providing any new resources to DEQ, the bill requires the agency 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, DEQ pointed out, 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. ” Shifting this responsibility to DEQ would simply alleviate the burden on the responsible party,” the agency wrote.

Chemours would have to supply alternate water supplies to affected well owners, which the company is currently doing. But the bill changes that requirement to apply only on a case-by-case basis, where the well contamination can be definitively linked to Chemours.

Smith contrasted that scenario with the agreement struck between DEQ and Duke Energy over coal ash: The utility has to provide an alternative water supply  to every well owner within a half-mile of a coal ash impoundment, regardless of whether the contamination is above health standards or even naturally occurring.

“Rather than clarify or enhance state enforcement authority, this bill imposes multiple requirements on the Governor before he can order a facility that is potentially poisoning people to cease all polluting operations and activities — creating unnecessary hurdles to effective action,” Derb Carter of the Southern Environmental Law Center said in a news release. “This is pointless given the Governor’s existing authority, and appears intended to protect the polluter, Chemours.”

The identical bills mark a detente between some warring House and Senate members over GenX legislation. In February, the Senate proposed a measure that looks very similar to what’s been introduced now. The House failed to take up, and instead, unanimously passed its version — which the Senate refused to vote on.

That legislation is essentially embodied in newly introduced HB 968.  It would appropriate $14 million to DEQ for statewide monitoring and sampling program for emerging contaminants. Its primary co-sponsors are Democratic Reps. Deb Butler, Elmer Floyd, Pricey Harrison and Billy Richardson. That bill has been exiled to languish in the Rules Committee.

DEQ MemoWater Safety Act Final by Lisa Sorg on Scribd

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Lisa Sorg
Lisa Sorg

Assistant Editor and Environmental Reporter Lisa Sorg helps manage newsroom operations while covering the environment, climate change, agriculture and energy.