Friday, February 3, 2023

State regulation of GenX could take a decade, but there’s another option

The Fayetteville Works facility: DuPont, Kuraray and Chemours share the industrial park and a single wastewater pipe for the disposal of GenX, PFOAs and other chemicals. Who can regulate them? (Port City Daily photo/COURTESY DUPONT)
The Fayetteville Works facility: DuPont, Kuraray and Chemours share the industrial park and a single wastewater pipe for the disposal of GenX, PFOAs and other chemicals. Who can regulate them? (Port City Daily photo / COURTESY DUPONT)

WILMINGTON — GenX has caused a great deal of public outcry; it’s also caused a great deal of confusion. Who is responsible for regulating the chemicals dumped by companies like The Chemours Company? In short: who can do something about the situation?

Shortly after GenX and other perflourinated ethers in the Cape Fear River became the focus of public concern, North Carolina’s Departments of Environmental Quality (DEQ) and Health and Human Services (DHHS) repeatedly stated that EPA regulations did not prohibit the actions of DuPont or The Chemours Company; both agencies implied they were handicapped by the lack of EPA involvement. The EPA, for its part, has refused to answer any questions for more than a month.

State agencies like the DEQ can, in fact, regulate chemicals like GenX. But the process is neither quick nor easy, and at least one representative of the DEQ has suggested action by the state’s General Assembly would be much more effective.

Here’s a deeper look at what state agencies need to do to make new rules, and what it would take for the DEQ to regulate GenX and other new contaminates. Then, a look at an alternative option that could be much faster.

Getting the data

Before any state agency can suggest a new rule, it has to do its homework. When it comes to a chemical like GenX, that means toxicology data showing the substance is dangerous. According to Sarah Young, a spokeswoman for the DEQ, agency staff has to compile data and deliver it to the Environmental Management Commission, the rule-making body for the DEQ.

Getting the science on GenX is just the first step in regulation. (Port City Daily photo / FILE IMAGE)
Getting the science on GenX is just the first step in regulation. (Port City Daily photo / FILE IMAGE)

“First, staff must have valid, peer-reviewed toxicological information to provide a recommended value to the EMC (Environmental Management Commission). This recommendation takes time to gather, then staff must write up the justification and evaluate research papers published in scientific journals. Consultation with other research scientists and agencies is common. It often involves conversations with state laboratories, and commercial laboratories to determine if we can analyze for the chemical of concern with confidence,” Young said.

The process of getting toxicological data can take a long time, in part because funding for necessary studies is scarce. Governor Roy Cooper recently called for $3 million in emergency funding, but the legislature has yet to act.

According to state Representative Deb Butler, recent efforts to get bi-partisan support for the funding have come to nothing.

“I hoped – we were meeting to authorize emergency funding for the DEQ. But it didn’t happen. Actually, nothing happened,” Butler said.

But, even with toxicology data in hand, the state’s process is just beginning (more on what it will take to get that kind of info on GenX here). Once a body like the EMC has the evidence it needs to suggest a chemical like GenX is dangerous, it has to go through the Office of Administrative Hearing. The process can be daunting to understand.

Making new rules

The Office of Administrative Hearings (OAH) can create emergency rules, which last no longer than 60 days, and temporary rules, which last no more than 270 days. Permanent rules are just that – permanent – but they face a more intense process to get approved.

The process includes a number of possible hurdles, not least of which is one of the first steps: getting a fiscal note approved by the state’s budget office. According to Bridget Munger, a spokeswoman for the DEQ, the fiscal note takes into consideration the impact of new regulation on the state’s economy and how much it would cost to enforce.

Then there are the meetings.

“It’s a series of meetings – a lot of meetings – you want to make sure that you’ve brought everyone to the table, the public and all the affected parties, all the shareholders,” Munger said.

State agencies can regulate emerging chemicals like GenX, but the process is not simple --- or quick. (Port City Daily photo / COURTESY OFFICE OF ADMINISTRATIVE HEARINGS)
State agencies can regulate emerging chemicals like GenX, but the process is not simple — or quick. (Port City Daily photo / COURTESY OFFICE OF ADMINISTRATIVE HEARINGS)

After the meetings, the potential rules are reviewed by the self-evidently-named Rules Review Commission. Again, there are a lot of complications, some of which involve the agency, involving temporary rules.

How much time does the process take?

There’s no set timeline for how long it can take to make a rule, Munger said.

“It’s pretty much impossible to say how long it could take,” Munger said. “The Jordan Lake rules took about 10 years, so that’s one end of the spectrum.”

Jordan Lake, completed in 1982 by the Army Corps of Engineers, had water quality issues for almost thirty years before state regulators completed rules to protect it. (Port City Daily photo / COURTESY ARMY CORPS OF ENGINEERS)
Jordan Lake, completed in 1982 by the Army Corps of Engineers, had water quality issues for almost 30 years before state regulators completed rules to protect it. (Port City Daily photo / COURTESY ARMY CORPS OF ENGINEERS)

The Jordan lake, near Chapel Hill, was created in 1983. According to the DEQ’s website, “the lake has had water quality issues from the beginning.” Despite the concern of Department of Environmental and Natural Resource (which later became the DEQ), the rule making process was not complete until 2009.

“It’s not fast. It’s not a quick process, I think that is fair to say. But you could always go through the legislature.”

Munger added, “It’s not fast. It’s not a quick process, I think that is fair to say. But you could always go through the legislature.”

Regulation by the General Assembly

Unlike the rule-making processes of the state’s agencies, the General Assembly can – in theory – write and pass legislation quickly. Whether it should or should not is a different issue.

“People think that these agencies are making rules willy-nilly, but it’s a long and complicated process for a reason,”  Butler said.

Butler added that she was uncomfortable with idea of the General Assembly taking over the regulatory powers of state agencies. However, she said there was no reason the state could not intervene in the short term.

“We seem to be able to do whatever we want, to pass all kinds of bills when we deem something an emergency. I can’t think of any reason we couldn’t pass a moratorium on something like this (GenX), at least until we understood it better. There’s no reason I can think of we couldn’t do that,” Butler said.

State Senator Michael Lee disagreed, saying he didn’t think the General Assembly was the right way to deal with emerging chemicals like GenX.

“North Carolina’s current regulatory framework gives the Cooper administration the authority to address these issues,” Lee said, adding that he thought state agencies should “do so quickly.”


Send comments and tips to Benjamin Schachtman at ben@localvoicemedia.com, @pcdben on Twitter, and (910) 538-2001.

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