Friday, December 9, 2022

GenX bill would repeal Hardison amendment, give DEQ $14 million, power to suspend permits immediately

The bill would also put the 'burden of proof' on polluters, requiring them to identify what chemicals they are putting in the water. When unauthorized discharges happen, the bill would require polluters to pay for filtering and clean-up.

Chemours headquarters in Wilmington, Delaware. The company is not explicitly named in GenX legislation, although the chemical GenX - which it manufactures - is. (Port City Daily/Courtesy Google Maps)
Chemours headquarters in Wilmington, Delaware. The company is not explicitly named in GenX legislation, although the chemical GenX – which it manufactures – is. (Port City Daily/Courtesy Google Maps)

RALEIGH—A bill filed today in the General Assembly would free state agencies from several restrictions that have prevented them from taking stronger action against GenX manufacturer Chemours.

House Bill 968 was sponsored by four Democrat representatives from the Cape Fear River basin: Deb Butler, William Richarson, Pricey Harrison and Elmer Floyd.

The bill would repeal the Hardison Amendment, provide approximately $14 million in funding for the Department of Environmental Quality (DEQ) and shift the “burden of proof” from state agencies to permit holders – and while no specific facility is named, Chemours and DuPont are the clear targets of this last provision.

Repealing the Hardison Amendment

The Hardison Amendment limits state regulation, and doesn't allow it to be stricter than existing federal regulations. (Port City Daily photo | Courtesy North Carolina legislature)
The Hardison Amendment limits state regulation, and doesn’t allow it to be stricter than existing federal regulations. (Port City Daily photo | Courtesy North Carolina legislature)

The 2014 Hardison Amendment has been a consistent source of frustration for environmental groups; the amendment rewrote G.S. 150B-19.3, preventing state agencies like the DEQ and Department of Health and Human Services (DHHS) from adopting “a rule for the protection of the environment or natural resources that imposes a more restrictive standard, limitation, or requirement than those imposed by federal law or rule.”

The Hardison Amendment has exceptions – including court orders and “serious and unforeseen threats” to public safety – but few ready ways to work around it.


The bill would address several funding issues that DEQ officials, including Secretary Michael S. Regan, have cited as hampering the agency’s ability to deal with GenX.

Top concerns have included staff to test and analyze the scope of the GenX issue and money to address the DEQ’s backlog of permits; Chemours’ own permit lapsed more than a year and a half ago in October 2016, but state allows the company to continue operating until the DEQ can review the permit for reissue or denial.

The bill directs a total of $14 million to the following areas:

  • $7 million for 39 staff members to conduct sampling and analyze data, and to tackle state’s considerable backlog of emission permits
  • $4.4 million for staff and equipment to update the state’s current paper-based permit process to a digital system
  • $1.5 million for laboratory upgrades at Reedy Creek Laboratory, one of the DEQ’s main testing facilities
  • $1 million for chemical detection equipment
  • $536,000 to DHHS for four new staff positions: a medical risk assessor, a toxicologist, an epidemiologist and a public health educator.

Shifting the burden

The bill would forbid any discharge into North Carolina waterways of a chemical that had no associated health standard, EPA consent order or other advisory or regulation.

In other words, chemicals – including some of the more exotic perfluorinated cousins of GenX – that have not been studied and which have no established safe level would not be allowed in the discharge from any facility.

Related story: Getting real toxicology data on GenX could take years, and that doesn’t include its chemical cousins

The bill would require that permit applicants identify every chemical in its discharge, even those not currently regulated; the burden of identifying these so-called “emerging contaminants” currently rests on the state and the EPA.

The bill would require the DEQ’s Environmental Management Commission to immediately suspend the permit of a facility that is either violating the terms of its permit – that is, discharging more than allowed – or that is discharging a chemical not identified by its permit.

In the event of such a discharge, the bill would authorize the DEQ to recover the cost of filtering the water at the point of discharge, as well as removing any pollutant from downstream water supplies.

Not the only GenX bill

At the beginning of the year, Representative Ted Davis brought a bill out of the House Committee on North Carolina River Quality, only to have it ridiculed by fellow State Senate Leader Phil Berger, who said Davis’s bill “does nothing.”

At the time, Berger argued that Senate Republicans had already taken legislative action, referring to the plan put forward by State Senator Michael Lee in October of last year.

Lee presented his plan, which would implicitly use funding denied to Governor Cooper for the DEQ, and instead fund testing at CFPUA and research at UNCW, to the General Assembly’s Environmental Review Committee (ERC). Davis, who serves as an advisory member of the ERC, had initially approved of that plan.

Berger said he planned to bring out Lee’s bill for a vote during the current legislative session and it is expected to appear on the Senate floor this week.

Representative Butler said that, despite the numerous GenX-related bills circulating in the General Assembly, House Bill 968 had been put together with the input of a broad range of environmental and legal groups, including Cape Fear River Watch, Catawba Riverkeeper, Haw River Assembly, Sierra Club, Sound Rivers, Yadkin Riverkeeper and the Southern Environmental Law Center.

Butler added the bill was also in line with Governor Roy Cooper’s funding requests for DEQ.

“The Republicans may be standing around scratching their heads, but we are putting forward something bold – something that will actually help clear our water and tackle emerging contaminants,” Butler said.

GenX/DEQ House Bill 968 – May 17, 2018 by Ben Schachtman on Scribd

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

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