Thursday, February 13, 2025

EMC delays PFAS action again, considers taking broader role over pollution discharge permits

The North Carolina Environmental Management Commission deferred action to initiate the regulatory process for PFAS standards under consideration in a series of contentious meetings this week. It also discussed expanding its power to issue water permits for dischargers. (Courtesy Department of Environmental Quality)

NORTH CAROLINA — The North Carolina Environmental Management Commission deferred action to initiate the regulatory process for PFAS standards under consideration in a series of contentious meetings this week. It also discussed expanding its power to issue water permits for dischargers.

READ MORE: Area leaders, officials, business owners urge for EMC action to regulate PFAS

ALSO: Environmental Management Commission stalls PFAS standards, members own stock in companies lobbying against regulation

The EMC is a 15-member body appointed by the governor, General Assembly leaders, and the agricultural commissioner. It is responsible for reviewing and approving rules for the Department of Environmental Quality.

Under the 1972 Clean Water Act, states are delegated authority to implement water standards for emerging contaminants like PFAS. The DEQ has been pushing the EMC to advance its proposed PFAS water standards for months, which would enforce new requirements for dischargers, such as chemical manufacturers and wastewater treatment facilities to limit emissions.

At Wednesday’s meeting, the EMC’s water quality committee voted to defer action to enact DEQ’s proposed surface water standards for eight PFAS compounds until September. The group’s groundwater and waste management committee rejected DEQ’s separate proposal for groundwater standards later that day. 

However, the EMC agreed three of the eight PFAS compounds — PFOA, PFOS, and GenX — should be advanced to the public comment stage of the state’s rulemaking process. It requested DEQ’s fiscal analysis — approved by the Office of State Budget and Management — be changed to address only the three compounds.

The amended groundwater standards will go back to the groundwater committee this fall rather than be considered for approval by the full committee. Once the EMC committee approves the standards, DEQ expects it to take at least nine months before it’s fully enacted. 

Members including commissioner Joe Reardon — chair of the groundwater committee — argued there is insufficient evidence regarding the other five compounds’ detrimental health effects to justify DEQ’s proposal. He argued the impact of PFOA, PFOS and GenX are more well-known. The EPA recently classified PFOA and PFOS as hazardous substances and GenX is highly concentrated in the Cape Fear River due to decades of emissions from Chemours’ Fayetteville Works facility, operated by parent company DuPont until 2017.

Critics including DEQ Secretary Elizabeth Biser, environmentalist groups, residents, and EMC members Marion Deerhake and Robin Smith criticized the decision. At Friday’s meeting, Deerhake argued other EMC members failed to make a substantive argument regarding the scientific evidence and financial analysis justifying the proposal.

“We didn’t see any progress,” Biser said in a conference call with reporters Thursday. 

The struggle between the DEQ and the EMC over PFAS regulation has stirred controversy in recent months. In May, Biser sent out a public letter criticizing the appointed board for repeatedly delaying the approval process; she argued the agency already provided sufficient information at the EMC’s November, January, and March meetings to move forward.

“Both the surface and ground-water standards are well-justified and reflect the best available science,” Betsy Southerland, who worked for the EPA for 30 years, told PCD.  “All the standards are calculated using EPA’s most up-to-date toxicity values.”

Biser argued DEQ’s proposed standards would complement a separate set of federal PFAS regulations for six PFAS compounds enacted by the Environmental Protection Agency in April. The EPA’s first-time maximum-contaminant levels for PFAS put new enforcements on water utilities but do not address industrial sources of pollution, a responsibility delegated to states.

“The science is clear on the health impacts of PFAS exposure,” Biser said Thursday. “The question I would ask is, do we really need to count body bags before they are willing to take any action?”

Permit authority

At Thursday’s meeting, EMC Chair J.D. Solomon initiated discussion regarding the commission’s ability to gain authority over the issuance of national pollution discharge elimination system permits, the tool used to enforce water standards. The DEQ is currently granted the authority through a memorandum of agreement with the EPA.

Solomon shared documents of a rule at the meeting, statute 143B-282, which authorizes the EMC to issue the permits. The chair said he wasn’t criticizing DEQ or the current arrangement, but wanted to find out if sharing authority with the EMC would create a more efficient process.

“We don’t know what’s in the permits,” Solomon said. “That’s the question of the day. That’s not to say it’s wrong but that’s what’s happening.”

The EMC agreed to hold a discussion at its September permit committee meeting to figure out the best method of allocating permit-issuing authority. The committee will also seek to resolve contradictions between state statute and DEQ’s MOA with the EPA. 

Three invited speakers were in favor of giving EMC more power over discharge permits, including Greensboro’s water reclamation division manager, Elijah Willaims. Greensboro is currently engaged in a lawsuit with DEQ regarding regulation of another toxic emerging contaminant, 1,4-dioxane.

PCD asked Solomon about the purpose of the agenda item Monday but did not receive a response. Biser said DEQ was not provided with any information beyond what appeared on the agenda.

Several EMC commissioners work as environmental consultants who provide permit compliance services or have clients with NPDES permits. The NC Ethics Commission advised Solomon his ownership of J.D. Solomon Consulting was a potential conflict of interest in a 2022 review. Solomon’s company has consulted North Carolina authorities including Johnston County and the Town of Clayton on services for water and wastewater utilities. The Ethics Commission advised him to exercise caution on issues that relate to his clients.

PCD reached out to Solomon and other EMC members who work as consultants or attorneys to ask if any of their current or former clients are PFAS manufacturers or companies opposed to PFAS surface and groundwater standards; if they believe PFAS surface and groundwater standards would be a financial liability to any of their clients; and if they have a contractual fiduciary duty to any of those clients. 

Commissioner Tim Baumgartner, a senior environmental manager with Ecosystem Planning and Restoration, LLC, said he had no financial interest in the firm and is only an employee. Commissioner Kevin Tweedy, a founder and vice president of the same company, said he was unaware of any EPR clients involved in PFAS manufacturing.

Commissioner Michael Ellison is a senior project manager with consulting firm WK Dickson, which provides services to the aviation, water utility, development, natural gas, and solar industries. The firm’s clients include NPDES permit holders, such as Boone Water Treatment Plant and Killian Wastewater Treatment Plant.

Solomon has been the lead consultant for Johnston County’s water and wastewater regionalization effort since 2021; DEQ issued a notice of intent to execute a NPDES permit for the county’s wastewater plant last month. 

The EMC chair is also a member of American Water Works Association and has attended the group’s conferences consistently over the last decade. The AWWA filed a lawsuit last month against the EPA to dispute the agency’s PFAS maximum-contaminant levels, arguing they are excessively burdensome on utilities. 

Commissioner Charles Carter’s 2022 ethics review cited his position as a partner at law firm Earth & Water Law as a potential conflict. In a blog post last year, E&W Law criticized federal PFAS regulations and stated it “stands ready to assist” affected parties. The firm also offers clients audits of PFAS liability at their facilities protected from disclosure under attorney-client privilege.

In his closing comments at Friday’s meeting Carter raised concerns about a public records request the EMC received. Investigative reporter Lisa Sorg requested records of communications between EMC members and the North Carolina Chamber of Commerce, which has lobbied against state PFAS regulation, several months ago. 

“I’m very uncomfortable with what’s going on with this so-called public records request,” he said. “I have never seen anything remotely like this in my many years of practice. We’re responding to two emails to the Department of Justice.”

Carter said he had not seen the request and thought it was irregular that the department had requested the information.

“I respectfully request that we move quickly to move something in place as far as the bylaws,” he said.

Solomon said he, Carter, and other members would create a working group to look into the issue.

Duke University first amendment clinic executive director Amanda Martin told PCD appointed bodies do not have the legal authority to change their requirements to fulfill public records requests.

PCD asked Carter why he believed changing the EMC’s bylaws regarding public records requests is an urgent concern and if there is anything in the public records request he did not want to share with the public. A response was not received by press.


Tips or comments? Email journalist Peter Castagno at peter@localdailymedia.com.

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