NORTH CAROLINA — An upstream wastewater facility released record levels of a toxic chemical into the drinking water supply of the tri-county region after a judge voided discharge limits. The North Carolina Chamber of Commerce is urging Congress to stop the EPA from requiring North Carolina to regulate the compound.
READ MORE: CFPUA evaluating options after emergency 1,4-dioxane petition returned
The City of Asheboro’s 1,4-dioxane pollution surged in recent months — reaching a record concentration of 3,520 parts per billion on Jan. 24 — following a judge’s decision to stop regulation of Asheboro’s permit limits in September. Asheboro’s discharges flow downstream into the Cape Fear River area, a region with some of the highest 1,4-dioxane discharges in the country.
The Environmental Protection Agency sent a Jan. 3 letter to the Department of Environmental Quality determining the judge inaccurately interpreted the Clean Water Act in his ruling. The EPA directed North Carolina to include 1,4-dioxane limits in Asheboro’s permit within 90 days or forfeit its enforcement authority to the federal government.
But the largest lobbying group in the state criticized the EPA’s 1,4-dioxane directive as “egregious overreach” that would negatively impact businesses and communities. The North Carolina Chamber sent Sen. Thom Tillis (R-NC) a Jan. 22 letter urging him to use his legislative authority to stop the EPA from intervening in the state’s 1,4-dioxane dispute.
“North Carolina’s Office of Administrative Hearings issued a decision stating that 1,4-dioxane should not be included in the permit,” NC Chamber Director of Regulatory Affairs Alyssa Morrissey wrote. “The EPA has objected to the revised permit and stands to assume exclusive authority in issuing the permit. Congress should call on the EPA to rescind their specific objection letter for the City of Asheboro’s [National Pollutant Discharge Elimination System] permit.”
The lobby group argued 1,4-dioxane regulation would pose exorbitant costs on wastewater treatment facilities and lead to a “patchwork” of inconsistent regulation throughout North Carolina because the state has not codified numerical 1,4-dioxane limits. PCD reached out to Tillis’ office to ask his position on the letter but did not receive a response by press.
Alternatively, Cape Fear Public Utility Authority executive director Kenneth Waldroup argued a sustainable, cost-effective approach would require industrial dischargers to limit pollution in a November emergency petition urging DEQ to begin 1,4-dioxane rulemaking.
He noted a North Carolina Collaboratory report, released in April 2024, 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.
Southern Environmental Law Center senior communications director Kathleen Sullivan noted the new data shows the highest 1,4-dioxane discharges since the Department of Environmental Quality began consistently monitoring the chemical in 2019. The Environmental Protection Agency’s drinking water health advisory level for 1,4-dioxane is 0.35 parts per billion.
The Department of Environmental Quality previously determined Asheboro would need to limit 1,4-dioxane discharges below 21.5 ppb to protect downstream residents’ drinking water. The city’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 roughly one million North Carolina communities — including Sanford and Fayetteville, and into Brunswick, Pender, and New Hanover counties.
Asheboro, Greensboro, and Reidsville filed a petition with the Office of Administrative Hearings to contest permit limits. Chief Administrative Law Judge Donald van der Vaart rendered the City of Asheboro’s 1,4-dioxane permit limits “void and unenforceable” in the fall. The Department of Environmental Quality is appealing the case.
CFPUA spokesperson Cammie Bellamy told Port City Daily the utility is still evaluating its next options after DEQ returned the petition, but noted the Sweeney Water Treatment Plant’s ozonation and biological filtration are effectively removing 1,4 Dioxane.
“We encourage every North Carolinian to call Sen. Tillis’ office immediately and demand he ignore the NC Chamber’s request before more lives are lost to cancer,” Clean Cape Fear co-founder Emily Donovan said Monday. “1,4 dioxane is highly toxic, linked to cancer, and doesn’t belong in our drinking water supplies. We hope Sen. Tillis and his staff recognize the bold attempt on full display by the NC Chamber to misinform in this letter.”
The North Carolina Chamber also joined a coalition of industry groups in a December letter to the Trump administration, urging it to roll back toxic chemical regulations, including PFAS maximum contaminant levels and the EPA’s 2024 finding that consumer products containing 1,4-dioxane pose an unreasonable risk.
Van der Vaart’s wife, Sandra, is chair of the North Carolina Chamber Legal Institute, the legal arm of the NC Chamber. The American Bar Association’s Model Code for Judicial Conduct for State Administrative Law Judges states administrative judges should disqualify themselves from any proceeding in which their spouse has a more than trivial interest.
“North Carolinians deserve a fair legal process that prioritizes clean water and public health, not padding the pockets of polluters,” NC League of Conservation Voters director of governmental relations Dan Crawford said. “This simply does not pass the smell test.”
In a November board meeting, CFPUA noted the ruling could limit the Department of Environmental Quality’s ability to use narrative standards — discharge limits for individual facilities in the absence of statewide numerical limits — and enforce any permits using them.
An Environmental Management Commission adopted rule, 15A NCAC 2B.0208, guides the use of “narrative” standards to regulate toxic chemicals that do not have codified numerical limits. It requires the Department of Environmental Quality to use formulas for pollutant restrictions, such as estimates of cancer risk from long-term exposure to a chemical.
The Department of Environmental Quality employed narrative standards as the basis for 1,4-dioxane conditions in Asheboro, Reidsville, and Greensboro’s discharge permits. Van der Vaart’s ruling disputed DEQ’s use of narrative standards and found 1,4-dioxane regulation would require the implementation of a statewide rule.
Attorneys representing the dischargers similarly recognized the precedent-setting impact on chemical regulation, describing 1,4-dioxane as “the tip of the iceberg” compared to PFAS in a memorandum last year.
The North Carolina Chamber has lobbied heavily against proposed state PFAS regulation in recent years. The lobby group sent letters to Environmental Management Commission members citing the research of toxicologist Michael Dourson, who is also serving as Asheboro’s expert witness to dispute the Department of Environmental Quality’s 1,4-dioxane toxicity assessment.
Trump nominated Dourson to serve as director of the EPA’s Office of Chemical Safety in 2017, but he withdrew amid criticism for his financial ties to industry. Sen. Thom Tillis and former Sen. Richard Burr both issued statements opposing the nominee.
“Over the last several weeks, Senator Tillis has done his due diligence in reviewing Mr. Dourson’s body of work,” Tillis’s office told StarNews in 2017. “Senator Tillis still has serious concerns about his record and cannot support his nomination.”
Dourson’s 1,4-dioxane research was funded by companies that discharge the chemical, including Waste Management Inc. DEQ identified Asheboro’s Great Oak Landfill — operated by Waste Management — as a likely source of the city’s 1,4-dioxane releases.
Appeal and statewide standards
Last month, Wake County Superior Court judge Bryan Collins issued a temporary stay on Van der Vaart’s order until the Department of Environmental Quality’s appeal reaches a conclusion or the Environmental Protection Agency takes further action on Asheboro’s permit. A hearing has not yet been held to determine which judge will oversee the appeal.
Wake County Superior Court holds unique status in North Carolina. Under the Administrative Procedures Act, it is the jurisdiction where state agencies can request judgments to challenge objections to proposed rules.
Asheboro sent a memo to Wake County Superior Court in October requesting the appeal be defined as an “exceptional case,” a designation for highly complex or unique cases requiring special management by the court. If deemed exceptional, Chief Supreme Court Justice Paul Newby would select a judge to oversee the appeal.
Alternatively, Attorney General-turned-Governor Josh Stein requested last year Wake County Superior Court reject Asheboro’s plea for “exceptional” designation and allow Wake County senior resident superior court judge Paul Ridgeway to select the judge in charge of the appeal.
Newby appointed Van der Vaart as Chief Administrative Law Judge in 2021. The chief supreme court justice’s financial disclosures include investments of at least $10,000 in 1,4-dioxane dischargers including Ashland Inc. The company’s former chemical plant in Greensboro was among the first groundwater sites DEQ found to have high concentrations of 1,4-dioxane in 2013.
“We urge the court to appoint an unbiased Wake County Superior Court judge to oversee this critical case,” Democracy Green co-founder La’Meshia Whittington wrote in a statement. “We cannot allow political interests to undermine the essential work of protecting our communities from toxic pollution.”
It remains unclear if the Trump administration will reinforce the previous administration’s letter on North Carolina’s 1,4-dioxane regulation. Recently appointed EPA administrator Lee Zeldin urged the agency to enact maximum-contaminant levels for 1,4-dioxane in 2019, but other new appointments pushed against 1,4-dioxane regulation in the first Trump administration. The Office of Management and Budget withdrew pending Biden administration PFAS discharge rules last month as part of its freeze on new regulations.
Port City Daily reached out to the EPA to ask if the agency plans to take further action on the Asheboro petition. A spokesperson said the agency could not provide a response because their 1,4-dioxane expert is on leave.
“EPA’s action is a prime example of a federal agency exceeding its authority as North Carolina has not adopted a statewide water quality standard for 1,4-dioxane,” North Carolina Chamber’s Morrissey wrote in the letter to Tillis. “Nor has a final decision on the permit been made as it awaits judicial review.”
The chamber’s letter argues federal enforcement of Asheboro’s permit would cause inconsistency throughout the state because North Carolina has not implemented statewide 1,4-dioxane water standards.
The Environmental Management Commission approved DEQ’s proposed standards in 2022, but the Rules Review Commission — a 10-member body charged with ensuring state agencies’ compliance with the Administrative Procedures Act — rejected the proposal.
The Rules Review Commission objected to 1,4-dioxane standards for not including appropriate fiscal analysis of the rules’ regulatory impact. However, Assistant State Budget Officer Anca Grozav sent a May 2022 letter to the Rules Review Commission stating the Office of State Budget and Management — the office charged with reviewing fiscal notes — approved the analysis.
The Environmental Management Commission sued the Rules Review Commission for exceeding its statutory authority but dropped the case after member JD Solomon took over as chair of a new majority last January.
Rules Review Commission Vice Chair Jake Parker is the North Carolina Chamber Legal Institute’s treasurer. According to IRS tax filings Parker has been on the institute’s board of directors since 2021, but he did not disclose the affiliation in his ethics disclosures. Another RRC member, William Nelson, is chair of the North Carolina Chamber’s tax policy committee.
Lawrence Duke — the Rules Review Commission’s former legal counsel who now serves as an administrative law judge — recommended rejecting 1,4-dioxane standards after receiving letters from industrial and municipal sources, according to emails obtained by the Southern Environmental Law Center. He noted he planned to meet with Van der Vaart — who oversees the Rules Review Commission, an agency within the Office of Administrative Hearings — to discuss the issue in an April 2022 email.
“A sudden about face at the eleventh hour as to which rules you are recommending objection is in fact a substantive change in position and creates very real transparency concerns,” special deputy attorney general Phillip Reynolds wrote in a May 2022 email to Duke.
Tips or comments? Email journalist Peter Castagno at peter@localdailymedia.com.
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