NORTH CAROLINA — The Environmental Management Commission once again delayed action on PFAS regulation at its recent meeting after the Office of State Budget and Management cast doubt about the effectiveness of its plan. Several EMC members said they were not informed of recent changes to the largely industry-crafted proposal.
READ MORE: ‘Worse than nothing’: Proposal would require PFAS reduction plans without enforcing limits
The Environmental Management Commission is charged with reviewing and enacting rules for the North Carolina Department of Environmental Quality. Almost two years ago, the DEQ proposed a plan to the commission to begin the process to adopt statewide PFAS discharge limits. The current EMC majority repeatedly delayed action and requested additional information sessions to understand the economic impact of regulation.
Last fall, the EMC opted to develop a plan to make industries self-monitor and voluntarily minimize PFAS discharges rather than impose enforceable limits. PFAS and 1,4-dioxane monitoring proposals were scheduled for last week’s meeting, but the commission voted to delay approval because the Office of State Budget and Management did not approve their regulatory impact analyses.
Emails show DEQ made changes to the plan at the direction of a select group of four commissioners — such as removing the word “mitigation” and specifying the rule only applies to three PFAS compounds — last month. During last week’s meeting, several EMC members said they were not informed of recent changes made to the proposal.
“It doesn’t seem like they do anything,” Rep. Ted Davis told Port City Daily Thursday; Davis’ bill to make Chemours pay for water utilities’ PFAS filtration technology moved to the Senate on May 8. “Study, study, study, study. I mean, how much more study do you need?”
The EMC maintains the monitoring plan would provide valuable data and serve as an immediate preliminary step before implementing stronger regulations. Critics, including more than 100 residents who submitted public comments, argue the plan would fail to reduce PFAS and provide long-term liability protection for polluters.
“The EMC’s so-called ‘minimization’ plans for both PFAS and 1,4-dioxane do nothing to minimize these toxic chemicals,” Cape Fear River Watch Executive Director Dana Sargent said. “They know it and the public knows it, yet they remain committed to this absurdity. That’s why we’re calling on our legislature and specifically Senate Majority Leader Michael Lee to convince his colleagues to pass the Water Safety Act — and make sure the language in the bill protects us from the dirty businesses of both the chemical manufacturers and the majority of EMC members.”
NC State biological sciences professor Sue Fenton sent a March email to the EMC noting two of the three compounds — PFOA and PFOS — included in its proposal are no longer used in U.S. manufacturing. She advocated including a far broader range of compounds and argued the current plan creates community distrust in the Environmental Management Commission.
“The plan does not offer a meaningful pathway to reducing PFAS contamination in NC over time,” she wrote.
The Office of State Budget and Management similarly questioned how the proposed plan would reduce discharges.
“Without performance measures or enforcement it seems unlikely that minimization activities will occur in a meaningful way,” OSBM wrote.
Fiscal note
The EMC Water Quality Committee voted unanimously to delay moving forward on the PFAS and 1,4-dioxane-minimization plans at its meeting last Wednesday, May 7. Committee chair Steve Keen said the Office of State Budget and Management had only provided comments on the PFAS plan the previous day and had not yet reviewed the 1,4-dioxane proposal.
Committee vice chair Michael Ellison attributed the delay to inadequate technical expertise and staffing at DEQ; he mentioned one employee was on maternity leave.
“This committee and the commission have been talking about PFAS for over a year,” he said.
However, OSBM’s concerns about the fiscal note were largely in response to actions and revisions specifically requested by Ellison and three other commissioners.
In a June 2024 email to Keen and Baumgartner, Ellison laid out a strategy for committee chairs to assume “full control” of committee agendas to limit DEQ influence. Ellison argued DEQ imposes aggressive work schedules on committees and sometimes provides incomplete and inaccurate information in fiscal notes submitted to OSBM; he advocated committee review and approval of all fiscal notes prior to submission.
“Over the last month we’ve been engaged and taken direction from a subcommittee of this committee,” Division of Water Resources director Richard Rogers said at Wednesday’s meeting. “Chair Keen, Vice Chair Ellison, Groundwater Chair Baumgartner, and also chair Solomon. We have taken that direction and applied it directly to the draft rules that y’all have before you today. The draft rules have a direct relationship to the draft [regulatory impact analysis] and also to what OSBM has commented”
Internal records show DWR director Rogers sent EMC members a different draft fiscal note for the minimization plan a month earlier on April 10. The draft analysis found the plan would cost a total of $126.8 million to implement from 2025-2031. DEQ presented an alternative plan to monitor 40 PFAS compounds without additional costs or staff time, but EMC’s preferred plan includes only three compounds.
The draft fiscal note indicated the plan’s benefits are unclear because it does not require dischargers to minimize PFAS:
“This analysis shows that the PFAS rulemaking will have a significant impact to the regulated sources without quantifiable benefits to North Carolinians and our natural resources that are a significant revenue source for the state.”
DEQ published an updated April 23 version that still did not include quantifiable benefits but gave a more optimistic appraisal of the plan.
Rogers alluded to a subcommittee of EMC members — commission chair J.D. Solomon, Water Quality Committee Chair Steve Keen, commissioner Michael Ellison, and commissioner Tim Baumgartner — as the driving force behind the Department of Environmental Quality’s revisions to the documents. PCD asked Keen who drafted the fiscal note but did not receive a response by press.
“Although it is not possible to predict what specific minimization actions will be taken,” the April 23 version indicated, “it can be qualitatively stated that there will be some reductions in PFAS loadings to surface waters.”
The Office of State Budget and Management questioned how the proposal’s authors reached the conclusion. At the March meeting, Ellison emphasized the rule should not be about “getting into the reduction business” or treating the compounds.
OSBM raised a broad range of concerns, including why the plan did not include other PFAS compounds, how the plan’s benefits would outweigh its costs, and why PFAS monitoring would only be semi-annual for entities that report detections of the three compounds.
“What is the basis for the claim that there will be reductions in PFAS?” OSBM asked. “What incentives will facilities have to voluntarily implement a minimization plan?”
During last week’s EMC meetings, commissioners Marion Deerhake and Robin Smith raised concerns the group directing the changes — Ellison, Solomon, Keen, and Baumgartner — had not been appropriately transparent in directing revisions to commission documents.
“I think we need to be very transparent about what’s going on in our rulemaking process,” Smith said. “Transparency beginning at least with the other commission members knowing what’s going on, but also the public, to the extent open meetings law applies to those meetings.”
Deerhake said she had not been notified of changes directed by the four commissioners — which Keen described as a “subcommittee” Wednesday — and asked why recommendations she made at the March meeting were ignored.
Deerhake noted the previous version of the proposal required dischargers to enact a minimization plan if testing shows discharges reach a 10% threshold. Solomon said industry opposed the provision at the March meeting and it was removed from the May plan.
“Some ideas were accepted and others are not ok — I withdraw the 10% idea,” Ellison said with a laugh at the March meeting.
The most recent version of the EMC’s PFAS would require dischargers to implement a minimization plan if they have any detections of the three compounds. However, monitoring frequency would be reduced — from quarterly to semiannual testing — if a discharger identified the three compounds in its wastewater.
“Please explain the rationale as to why monitoring frequency is reduced after a facility has identified the presence of these compounds,” OSBM wrote.
Keen apologized for using the phrase “subcommittee” at Thursday’s full commission meeting. Ellison added Keen did not mean to use the term and it was instead a “working group” with the department and various stakeholder groups.
Solomon similarly said it was not an official subcommittee but instead a group composed of himself, Keen, and Ellison; Baumgartner was to be involved if Ellison could not attend.
“I don’t think we ever named an official committee,” Solomon said at Thursday’s meeting. “I don’t think the committee — the subcommittee did. But we will look into your concerns.”
Minimization plan
The Office of State Budget and Management requested the Environmental Management Commission demonstrate why the PFAS and 1,4-dioxane monitoring proposals are necessary: “Why not require this monitoring via [National Pollutant Discharge Elimination System] permits? Why not adopt a water quality standard?”
DEQ has requested the EMC initiate the process to enact statewide PFAS water standards for over a year; the rules would require dischargers to implement filtration technology to limit emissions. The OSBM approved DEQ’s fiscal analysis of the plan last year and found economic benefits would outweigh costs.
However, the current EMC majority has pushed back and argued more time is necessary to understand PFAS health effects and economic impacts. Alternatively, former DEQ Secretary Elizabeth Biser and former Gov. Roy Cooper attributed delays to the influence of powerful lobby groups, including the NC Chamber.
Wastewater utilities that discharge PFAS and 1,4-dioxane received from industrial customers have also lobbied against the proposals. In July 2024, Brunswick County Public Utilities director John Nichols sent an email to EMC chair Solomon expressing concerns the rules failed to account for the county’s unique situation.
“Brunswick County is installing low pressure reverse osmosis to treat PFAS unlike most utilities that use [granular activated carbon] for treatment,” he wrote. “The county will have a concentrate primarily of treated water and PFAS that is not removed in the conventional treatment process and that must be discharged back to the [Cape Fear] River.”
Nichols attached a letter from his counsel, AquaLaw attorney Paul Calamita, who pointed to Brunswick as an example of how wastewater utilities could be unfairly subject to surface water remediation costs under the proposed rules.
In early September 2024, Calamita sent EMC chair Solomon a separate letter on behalf of the North Carolina Water Quality Association expressing the group’s concerns with DEQ’s proposed PFAS surface water standards. The NCWQA is a trade association representing public water and wastewater utilities — including Brunswick County Public Utilities and Cape Fear Public Utilities Authority — and consultants such as CDM Smith, the project manager for Brunswick’s repeatedly delayed reverse osmosis treatment facility.
“The proposed [surface water standards] are so low,” Calamita wrote. “We believe virtually every surface water in the state will be impaired.”
Instead, the attorney recommended a monitoring and minimization approach for the next few years to create a statewide database to better inform future regulatory actions.
A week later at its September meeting, the Environmental Management Commission agreed to pursue a monitoring strategy rather than enforceable statewide limits. The EMC directed the Department of Environmental Quality to create a draft plan with stakeholder groups including the North Carolina Water Quality Association and NC Manufacturers Alliance, which represents PFAS manufacturers such as Chemours and DuPont.
The Environmental Management Commission was scheduled to hold a special meeting to discuss DEQ’s draft proposal on Feb. 25, but EMC abruptly canceled it without public explanation.
Internal emails show Solomon took umbrage with DEQ’s prepared presentation. The chair argued commissioners and the public did not have enough time to review it since the agency only shared it the night before. Solomon sought to remove PFAS reduction goals in DEQ’s presentation and noted wastewater utilities already prepared a proposed rule.
“I see no need for required % reductions in this phase (maybe something we can add later based on public comment),” Solomon wrote. “This also keeps the [regulatory impact analysis] simple as we seek to get a proposal quickly to the public for their review and comment.”
Calamita sent Solomon and Keen a draft monitoring plan in late February requiring facilities to monitor PFAS and create discharge reduction plans. Beth Eckert, CFPUA environmental management director and NCWQA president, wrote a March 5 email to Keen stating the group’s board unanimously supported its draft version of the PFAS monitoring plan.
However, the draft plan did not contain a means of enforcement, leading advocacy groups including the Southern Environmental Law Center to criticize it for giving long-term liability protection to polluters.
“It’s clear that DEQ is trying to adopt a rule that would protect people from toxic chemical pollution and the EMC Water Quality Committee is blocking them every step of the way,” SELC attorney Hannah Nelson said.
DEQ updated their proposal to closely reflect NCWQA’s version: “We have done our best to incorporate all of Paul [Calamita’s] concepts into this rule,” Division of Water Resources deputy director Julie Gryzb wrote in a March 3 email.
At the March 12 EMC meeting, Keen said the NCWQA wrote about 80% of the draft PFAS minimization plan and DEQ’s role was to “fill in the blanks.”
Solomon and Ellison both work for consultant firms serving water utilities, including members of the North Carolina Water Quality Association, the trade association that wrote the majority of the PFAS monitoring plan. The EMC members have not responded to Port City Daily’s questions about their potential conflicts of interest, such as if they have a fiduciary duty to clients who view PFAS and 1,4-dioxane regulation as a financial liability.
Ellison’s firm WK Dickson is an associate consultant member of the NCWQA. Ellison was publicly criticized by the EMC a decade ago for inappropriate coordination with industry while crafting regulations. As former director of DEQ’s Division of Mitigation Services, Ellison circumvented the Environmental Management Commission’s proposed 2014 update to stream protection rules after engaging in private meetings with industry representatives.
“It’s clear the EMC has now become a waste of taxpayer resources and should be abolished immediately,” Clean Cape Fear co-founder Emily Donovan said. “The EMC has done nothing but waste DEQ’s time and money while putting our public waters and the communities that depend on them at further risk. The only ones benefitting from this incompetence are PFAS polluters like Chemours. NC lawmakers should abolish the EMC and allow DEQ to do its job.”
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