WILMINGTON — Earlier this week the Environmental Protection Agency (EPA) informed North Carolina agencies that two chemical relatives of GenX had been identified in both the Cape Fear River and in Cape Fear Public Utility Authority (CFPUA) drinking water. The report of the new chemicals, now being called Nafion byproducts, may add fuel to the fiery debate over who should have the regulatory power – and the funding – to deal with emerging contaminants.
The debate comes down to whether the state’s environmental and health agencies should continue to handle regulation or whether Raleigh should step in using legislative means.
Who can regulate GenX?
In the first days after GenX became a household word in the Cape Fear region, many of the major players looked to the federal government; water utilities and state agencies said they were waiting for guidance from the EPA. But as time passed – and the EPA stopped answering calls – it became clear that state-level regulation was possible, though far from easy.
In early August, officials from the DEQ said regulation could take years, even a decade and suggested state legislation could be quicker. At the time, there was a seemingly bi-partisan agreement that this was a bad idea.
Representative Deb Butler (D) said that short-term legislative action might be acceptable, but that she was uncomfortable with “the House and Senate taking over the complicated, scientifically-focused jobs of professionals at the DEQ and DHHS.” State Senator Michael Lee (R) ruled out legislative action completely, saying “that’s just not the right way to do it … North Carolina’s current regulatory framework gives the Cooper administration the authority to address these issues. As to the current situation, I think it should do so promptly.”
Partisan divisions emerge
Shortly thereafter, Governor Roy Cooper asked Raleigh for $2.5 million dollars to fund extra testing and research of emerging contaminants in the water. Republican State Senators objected, writing Cooper an open letter asking him to defend the request against a number of criticisms, including what Republicans considered the over-staffing of the DEQ with “many individuals that perform non-regulatory functions not involving the implementation of federal or state environmental quality programs. An example of this is the ‘Office of Innovation’ that was just created by Secretary Regan.”
Senate Republicans escalated their criticism during a recent legislative hearing, held in Wilmington. Members of the Environmental Review Commission (ERC) pressed Department of Environmental Equality (DEQ) Secretary Michael Regan on several issues. Regan pointed to recent cuts to his agency, falling nearly $8 million short of Cooper’s request. Republicans, including recently-resigned Representative Chris Millis, again asked Regan about the agency’s inability to re-prioritize.
Prior to the meeting, Michael Lee, though not a member of the ERC, proposed giving funding to the CFPUA ($185,000) and the University of North Carolina Wilmington ($250,000) instead of state agencies. It would also give the DEQ a week to formally serve Chemours with a Notice of Violation, or explain to legislators why it hasn’t.
The revised bill, which included funding for GenX testing and filtration, also included the repeal of an eight-year-old ban on plastic bags in the Outer Banks and loosening of landfill regulations.
Earlier this week, Republicans used a legislative mechanism known as a conference report to amend House Bill 56, legislation filed back in February to alter the regulations for a variety of environmental issues. The bill had initially stalled amid controversy in June. The revised bill, which included funding for GenX testing and filtration, also included the repeal of an eight-year-old ban on plastic bags (page 17) in the Outer Banks and loosening of landfill regulations (page 15-16). You can read the complete amended bill here.
Lee defended the move, saying there was no available legislative mechanism to file a new standalone bill. “Putting it in the conference report was the only way to move it forward in just a few days,” Lee said.
Lee added he hoped “other issues will not derail (HB56).” They did not; the bill passed.
Representative Deb Butler called the bill “nonsense,” saying, “first off all it gives funding to the CFPUA, who we know withheld information about GenX since at least 2016, and possibly much earlier. Second, it’s a shortsighted plan, it doesn’t consider other contaminants in the water, it doesn’t consider agricultural runoff, it doesn’t fund the Governor’s request to study these things – the whole range of pollutants – and get real answers about what’s in our water and what we can do about it. And lastly, it’s crammed into a bill that makes some very bad environmental decisions.”
New chemicals, old frustration
Thursday’s announcement about Nafion byproducts only complicated the struggle between legislative and state agency regulation into new perspective. Coming just hours after HB56 was passed, the new chemical concerns announced by the DEQ are not covered by the bill.
To make matters more complicated, little is known about the Nafion byproducts. While the EPA was able to accurately measure them, they did not provide any toxicology information about them, or any guidance on what acceptable health level of the substances in drinking water might be — a situation nearly identical to the initial mixture of concern and confusion over GenX.
This put the DHHS Secretary Mandy Cohen in the position of simultaneously admitting the agency had “very little scientific information” about Nafion byproducts while also reiterating the agency’s assessment that the water was safe to drink. Cohen acknowledged only that the seeming disconnect was “frustrating to us all.”
This put the DHHS Secretary Mandy Cohen in the position of simultaneously admitting the agency had “very little scientific information” about Nafion byproducts while also reiterating the agency’s assessment that the water was safe to drink. Cohen acknowledged only that the seeming disconnect was “frustrating to us all.” (You can read the agency’s complete statement here.)
Related Story: Here’s what it will take to get answers about GenX’s health effects
Without additional funding for a broader range of testing, Cohen said the agency must rely in large part on the EPA and CDC for further tests. Cohen offered no timeline on when additional information would be available; however, studies of GenX toxicity have taken months, even years.
A change of direction
Senate Republicans, meanwhile, seem ready to pursue additional legislative action, with Michael Lee saying HB56 was only a preliminary step. According to Lee, the Senate’s next opportunity to introduce legislation will be in October. In an apparent change of direction from early August, Lee now appears willing to use state legislation to “move to ball” on GenX where, according to Lee, state agencies have been unwilling or unable to do so.
When it came to his apparent change in attitude, Lee said it was motivated by what Senate Republicans see as fundamental problems at the DEQ and DHHS, dating back through the past several administrations.
“It is clear some measures will need to be taken in the near future to address what appears to be a systematic failure in our regulatory process,” Lee said.
Meanwhile, despite ongoing criticism from county officials, the CFPUA, state agencies and Senate Republicans, The Chemours Company’s stock has reached its highest levels since the company’s 2015 inception. After a month-long slide in June, Chemours’ closed at a record 49.99 on the New York Stock Exchange on Friday, Sept 1.
Send comments and tips to Benjamin Schachtman at ben@localvoicemedia.com, @pcdben on Twitter, and (910) 538-2001.
