NORTH CAROLINA — The City of Asheboro dramatically increased discharges of a toxic chemical flowing downstream into the water supply of the tri-county region after a judge halted its regulation. The Environmental Protection Agency is threatening to take over the permit’s enforcement unless North Carolina reinstates discharge limits.
READ MORE: Judge rules against 1,4-dioxane limits, wife is chair of organization representing dischargers
North Carolina has the third highest concentration of 1,4-dioxane — a synthetic chemical the EPA defines as a “likely carcinogen” — in the country.
The Department of Environmental Quality imposed 1,4-dioxane restrictions for Asheboro, Greensboro, and Reidsville’s wastewater facilities after identifying them as some of the state’s top dischargers in 2016. The facilities receive 1,4-dioxane from industrial customers, including polyester plastic manufacturers and landfills, which flow downstream into the Cape Fear region.
In September, Chief Administrative Law Judge Donald van der Vaart ruled in favor of the City of Asheboro in its lawsuit challenging 1,4-dioxane restrictions. Asheboro filed a petition with the Office of Administrative Hearings in September 2023 to contest 1,4-dioxane conditions in its permit renewal, dropped the case in February 2024, and reopened it in March. Greensboro and Reidsville joined Asheboro’s petition in April 2024.
The municipalities argued discharge limits put onerous financial burdens on their wastewater facilities and major employers in their areas. They contended DEQ overstepped its authority by regulating 1,4-dioxane because North Carolina has not codified numerical limits in a statute or rule.
Additionally, the dischargers urged Van der Vaart to consider the precedent-setting impact of the suit on DEQ’s ability to regulate PFAS — a major focus of DEQ in recent years — and other emerging compounds. Attorney Clark Wright described 1,4-dioxane as the “tip of the iceberg” compared to PFAS in a memorandum last year.
“This class of currently unregulated chemicals inevitably will be the subject of future similar regulatory efforts by [DEQ],” he wrote. “Therefore, let’s get it right now. In doing so, this court will be setting the proper legal rules of the road for [DEQ] to follow in its efforts to regulate other newly identified chemicals of concern.”
Van der Vaart concurred in September and rendered permit limits “void and unenforceable.”
An April North Carolina Collaboratory analysis found Asheboro’s average 1,4-dioxane discharges dramatically reduced 80% from 2018 to 2023. It went from 334 to 68 parts per billion, due to industrial customers pre-treating wastewater.
The city’s 1,4-dioxane emissions have surged in the months following Van der Vaart’s ruling. A Meritech Inc. Environmental Laboratories test showed the city’s average 1,4-dioxane discharges increased to 813 parts per billion in December, vastly higher than EPA’s cancer risk threshold of .35 ppb.
“Asheboro’s discharges don’t directly affect the City of Asheboro’s residents,” Southern Environmental Law Center senior attorney Jean Zhuang told Port City Daily. “But the law they would dismantle affects everyone’s drinking water.”
Asheboro’s discharges flow from Hasketts Creek into Deep River, a tributary of the Cape Fear River, and pass into the public drinking water supply intake of communities including Sanford, Fayetteville, Brunswick, Pender, and New Hanover Counties.
Cape Fear Public Utility Authority, Brunswick County, and Fayetteville Commission filed briefs defending DEQ in the case. They argued 1,4-dioxane discharges from the upstream facilities contaminated their regions and unfairly forced them to incur clean-up costs.
Last week, EPA Division 4 Water Director Kathlene Butler sent a letter to North Carolina Division of Water Resources Director Richard Rogers refuting Judge Van der Vaart’s decision. She directed the state to issue a revised permit to the municipality including 1,4-dioxane limits within 90 days or forfeit its enforcement authority to the federal government. Any individual may request a public hearing to object to EPA’s determination within the next three months.
DEQ Public Information Officer Laura Oleniacz told Port City Daily the agency is reviewing EPA’s letter.
“The response from EPA is really encouraging,” Haw River Riverkeeper Emily Sutton told Port City Daily. “They have made it clear that Van der Vaart’s ruling is not accurate.”
In his September written opinion, Van der Vaart stated DEQ erred by citing statutes that apply to carcinogens because the EPA has not formally declared 1,4-dioxane a carcinogen, only a “likely” one. He determined enforcement would require the implementation of statewide water standards — which were previously blocked by an agency overseen by Van der Vaart, the Rules Review Commission.
Alternatively, the EPA found Van der Vaart falsely interpreted the Clean Water Act. Butler stated toxicological data — including animal studies — has clearly established 1,4-dioxane’s threat to human health; the Clean Water Act does not require toxic chemicals be formally defined as carcinogenic for regulation.
“The ability to confirm carcinogenicity in a human population is often limited,” Butler wrote. “Because for obvious ethical reasons, cancer studies are not intentionally conducted on humans.”
Toxicologist Michael Dourson served as Asheboro, Greensboro, and Reidsville’s expert witness to dispute DEQ’s 1,4-dioxane toxicity assessment. He published studies on 1,4-dioxane funded by PPG Industries and Waste Management Inc., multinational companies that have released the chemical.
DEQ identified Asheboro’s Great Oak Landfill as a likely source of the city’s 1,4-dioxane releases. The landfill is operated by Waste Management Inc, which made $2.27 billion in profits last year.
Dourson referred to the influence of his 1,4-dioxane research in a June 2017 email to the American Chemistry Council — a powerful lobby group opposing PFAS and 1,4-dioxane regulations — on state policy. He said his research provides “an easier argument for industry to make to EPA” before requesting donations.
The scientist has consistently found pollutants to be less toxic — including PFAS — than what most scientists believe; he withdrew from his nomination to the EPA’s Office of Chemical Safety in 2017 amid criticism for his financial ties to industry.
The North Carolina Collaboratory found Asheboro’s previous 1,4-dioxane reductions came from its clients’ wastewater pretreatment. Southern Environmental Law Center Senior Attorney Jean Zhuang noted pretreatment costs were primarily incurred by companies like PET-manufacturer Starpet, rather than Asheboro’s utility, which claims it has faced unfair financial burdens in regulating 1,4-dioxane.
“The main point is [the municipalities] don’t need to spend their money on [pretreatment],” Zhuang said. “It should be paid for by their industries.”
Asheboro requested Van der Vaart make DEQ pay $1 million in attorney fees it spent on the case over the last year; DEQ has appealed the ruling to Wake County Superior Court.
Port City Daily reached out to Asheboro Water Resources Director Michael Rhoney — who was carbon copied on EPA’s recent letter — to ask how much the city spent on 1,4-dioxane treatment and testing, if a source and remediation plan for recent discharges has been determined, and if it reduced pretreatment requirements on industrial customers in response to the September ruling.
“I don’t know how this administrative law judge could possibly justify overruling such clear statutory language,” former EPA Office of Science and Technology Director Betsy Southerland told Port City Daily. “There is absolutely no ambiguity in the Clean Water Act about industrial contributors’ requirement to pretreat their indirect discharges in order to ensure the permit limits on the direct discharge are met.”
Port City Daily reached out to Van der Vaart to ask about the EPA’s letter, Asheboro’s increased discharges after his ruling, and his potential conflict of interest regarding his wife’s position as chair of a lobbying organization representing PFAS and 1,4-dioxane dischargers. A response was not received by press.
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