Friday, December 2, 2022

GenX legislation falls short of Cooper’s funding request, explores protecting CFPUA from lawsuits

The bill requests research and questions legal liability of GenX and other contaminants

Legislation passed in the N.C. House of Representatives yesterday to address GenX. (Port City Daily /FILE PHOTO)
Legislation passed in the N.C. House of Representatives yesterday to address GenX. (Port City Daily /FILE PHOTO)

RALEIGH — It’s been a long road to get legislators to agree on what to do about GenX and the latest offering has already met with criticism.

Yesterday, legislators reviewed a GenX bill that contains a provision to research whether water utilities could be protected from legal liability for distributing contaminated water to their customers in the future.

Related: Senate leader Phil Berger says Ted Davis’ GenX bill ‘does nothing

Currently, little would prevent civil lawsuits against water utilities in events like the discovery of GenX in CFPUA water. Although CFPUA is not explicitly named in House Bill 189, it would clearly be a benefactor of legislative protections.

An early draft of the bill, written in the House Committee on North Carolina River Quality, did not include any funding to address the contentious public health issue. After it was reviewed by the North Carolina House of Representatives, the bill now includes $1.3 million in reappropriated funds to address GenX.

Here’s what the bill includes:

  • Directs the Department of Health and Human Services to consult with the Secretaries’ Science Advisory Board
  • Directs the Department of Environmental Quality(DEQ) to study the state’s National Pollutant Discharge Elimination System
  • Directs the DEQ to coordinate and share water quality data with the following state’s respective DEQs: Georgia, South Carolina, Tennesse, Virginia and West Virginia.
  • Directs the DEQ to study statutory requirements for utilities to notify the public of discharges
  • Directs UNC School of Government to study the civic liability of water utilities
  • Appropriates $1.2 million in funding to address GenX

How we got here

Prior to HB189, Governor Roy Cooper vetoed House Bill 56 in October, the first legislative attempt to confront GenX-related issues.

Cooper objected to what he said was the bill’s failure to appropriately release funds to state governments and departments “charged with setting standards and enforcing laws to prevent illegal chemical discharges into rivers used for drinking water.”

Cooper had previously asked for $2.5 million in funding for state health and environmental agencies, Republicans – including State Senator Michael Lee – immediately questioned Cooper’s request, along with the efficacy of the Departments of Environmental Quality and Health and Human Services.

HB56 died, and on Jan. 10, the North Carolina General Assembly considered a new act to implement short-term measures to respond to emerging contaminants in the environment.

Republican Representative Holly Grange, Chairman of the North Carolina River Quality, is optimistic about the new legislation.

“This legislation will allow us to identify the processes so we know how (to) better address and resource them,” Grange wrote in an email.

A Republican-led board

The House Committee on North Carolina River Quality, formed in August, was charged with leading and presenting legislation to address respond to GenX and other river contaminants.

The 14-member committee is largely Republican, with only two Democrats – representatives Elmer Floyd and Pricey Harrison. The committee represented something of an about-face for state Republicans, who had earlier dismissed the notion of using legislation to deal with GenX.

Only a week before the committee was formed, State Senator Michael Lee said in an interview, “North Carolina’s current regulatory framework gives the Cooper administration the authority to address these issues.”

Deb Butler, a Democratic representative of New Hanover and Brunswick Counties, where the GenX crisis originated, is noticeably missing from that committee. She has disagreed with her exclusion and said she has tried to gain a seat on multiple occasions. Despite her attempts, Butler said she had been repeatedly denied.

“It’s because I’m a Democrat,” she said.

The committee, as well as the Senate, are lead by a Republican majority.

“We are suffering under a super majority which controls appointments to committees, office appointments, everything,” Butler said.

When it comes to getting action-focused GenX legislation through, Butler lacks confidence in the legislature’s ability to aggressively approach the public health issue.

“(The bill) is political theater,” Butler said. “They are directing overstretched agencies, directing them to undertake studies they are already doing.”

Representative Ted Davis, Senior Chairman of the committee, did not respond to questions, though he initially wrote he was willing to receive them in an email.

Letting CFPUA off the hook?

The bill’s focus on research rather than action is Butler’s main grievance.

Heard and amended by the North Carolina House of Representatives Jan. 10, the bill’s provision to send the consideration of shielding water utilities to the UNC School of Government doesn’t settle well with Butler.

“I’m concerned that there’s an attempt to insulate providers of water from civil liability,” she said. “My thought on that is if you have applied best practices, tested the water to the best of your ability and informed the public in a timely manner of any contamination, you shouldn’t fear civil liability.”

For now, CFPUA is vulnerable to civil liability, but if the UNC School of Government reports otherwise in April when its report is due, that may change.

“We have an extremely litigious society, Grange wrote. “This provision will allow the UNC School of Government to study the issue in order to make recommendations on any potential future legislation.”

Butler presented an amendment to the bill – which would have pushed back against the Hardison Amendment, legislation that ties state regulation to Federal rules – which failed to pass. Despite her objections, Butler voted for the bill.

The bill passed in the House, is headed to the Senate floor and is subject to further revision before it reaches Governor Cooper’s desk.

Republican Senate leader Phil Berger has already expressed his discontent with the bill, saying it “does nothing to prevent GenX from entering the drinking supply.”

Read a revised version of House Bill 189 below:

House Bill 189 version 2 by Johanna Ferebee on Scribd

 


Johanna Ferebee can be reached at johanna@localvoicemedia.com or @j__ferebee on Twitter

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