NORTH CAROLINA — Environmentalist groups issued an unprecedented legal petition to the Environmental Protection Agency to take over North Carolina’s permit system for PFAS water pollution. Meanwhile, some experts called for scrutiny of potential conflicts of interest among state officials seeking more influence over the same program.
READ MORE: EMC delays PFAS action again, considers taking broader role over pollution discharge permits
ALSO: Area leaders, officials, business owners urge for EMC action to regulate PFAS
Under the 1972 Clean Water Act, the federal government delegates the authority to issue permits that regulate pollutant dischargers to states. The Clean Water Act also gives citizens the right to petition the EPA to rescind state authority over those permits if they believe the state is failing to fulfill its mandate.
Environmentalist groups Cape Fear River Watch, the Environmental Justice Community Network, Haw River Assembly, and Mountaintrue, represented by the Southern Environmental Law Center, submitted a petition Wednesday requesting the EPA revoke the state’s authority over the permit program for the first time in North Carolina’s history.
The petitioners argued the legislature and appointed officials have severely obstructed PFAS regulation and prevented the Department of Environmental Quality from ensuring clean water for North Carolinians.
Petitioners’ complaints against lawmakers and appointed officials include:
- Enacting bills that weakened the Department of Environment Quality’s authority over pollution permits
- Repeatedly underfunding the Department of Environmental Quality
- Recomposing the Environmental Management Commission to appoint members opposed to environmental regulation
- The Environmental Management Commission delaying PFAS regulation proposals
- Giving permit approval power to the Office of Administrative Hearings and the Rules Review Commission in violation of NC’s memorandum of agreement with the EPA
State agencies are expected to set regulations through the “National Pollution Discharge Elimination System” (NPDES) permit program. It requires dischargers to comply with permits that set limits on toxins by implementing filtration technology.
North Carolina has been recognized to have some of the nation’s highest concentrations for two types of toxins, PFAS and 1,4-dioxane, for years. The Department of Environmental Quality has repeatedly proposed PFAS and 1,4-dioxane limits for NPDES permits but the state remains without them.
“The NC legislature has not only failed us in their response to the PFAS crisis, they have actively compounded the issue to the degree that their alliance with polluters has become so transparent, it would be comical if it weren’t so dangerous,” Dana Sargent, executive director of Wilmington-based Cape Fear River Watch, told Port City Daily.
Sargent cites the influence of powerful lobby organizations representing PFAS dischargers, including the North Carolina Chamber of Commerce and the North Carolina Manufacturers Alliance. The two groups argue PFAS water standards would negatively impact the state economy and manufacturing sector.
Betsy Southerland, who worked in the EPA’s water program for 33 years, noted the EPA has never withdrawn pollution permit authority from a state but has worked to resolve issues raised in dozens of citizen petitions over the past four decades. The EPA can also reject petitions requests.
In 2014, the EPA chose to consider six out of 26 issues cited in a 2010 petition by Alabama nonprofits to rescind the state’s National Pollutant Discharge Elimination System; EPA denied the withdrawal request in 2017.
An EPA representative wrote of the final withdrawal process: “should be reserved for serious and widespread deficiencies in program implementation.”
“SELC’s petition is a thorough documentation of all the ways NC’s NPDES program is failing to protect water quality,” Southerland said. “EPA will now need to work with the state to resolve all the issues raised in the petition.”
Regulation process
North Carolina has a multi-tiered process to enact water and groundwater standards for discharge permits. First, the Department of Environmental Quality must propose discharge limits followed by the review of the Environmental Management Commission. The commission is a 15-member body appointed by the governor, General Assembly, and agricultural commissioner charged with approving DEQ’s proposed regulations.
After Environmental Management Commission approval, proposed regulations go through a public comment and hearing phase. After this stage, the Office of Administrative Hearings makes the final decision whether to validate proposed water standards. SB 781, a 2011 law sponsored by Rep. David Rouzer (R-NC) when he was a state senator, gave the Office of Administrative Hearings final authority.
The SELC argues the law put North Carolina in violation of a 1975 memorandum of agreement with the EPA governing the state’s jurisdiction of national pollution discharge permits.
Stan Meiburg, a former EPA deputy administrator who spent 39 years with the agency, told Port City Daily he knows of no other state with a similar arrangement.
“[The Office of Administrative Hearings] has neither the institutional capability nor the technical capacity to do independent permit reviews,” he said. “It is hard to imagine how or why they would do other than simply approve actions prepared by DEQ. This raises the question of why this step was adopted in the first place. One can only assume that the legislature was trying to further constrain the authority of DEQ.”
In May, DEQ secretary Elizabeth Biser issued a public letter lambasting the Environmental Management Commission and the NC Chamber for delaying proposed surface and groundwater standards put forward six months earlier. Southern Environmental Law Center cites in its recent petition a 2023 bill that removed Gov. Roy Cooper’s majority appointment authority over the Environmental Management Commission as an example of obstructive legislation leading to the delay.
The governor previously appointed nine of the commission’s 15 members while lawmakers appointed six; the 2023 law, SB 512, gave Agricultural Commissioner Steve Troxler two of Cooper’s appointments. Biser told reporters in July she believed the previous Environmental Management Commission board would have moved forward on PFAS standards.
Before the new majority took over, the Environmental Management Commission was also engaged in a lawsuit against the Rules Review Commission. This 10-member body is appointed entirely by the General Assembly and is within the Office of Administrative Hearings.
The Rules Review Commission rejected the Environmental Management Commission’s proposed standards for a separate toxic compound, 1,4-dioxane, which is highly concentrated in the Cape Fear River. The Rules Review Commission cited a flawed fiscal analysis. However, the Office of State Budget Management — the state body charged with verifying economic analyses in the rulemaking process — approved DEQ’s study.
The Environmental Management Commission sued the Rules Review Commission for operating outside of its jurisdiction, but voted to drop the lawsuit under its new majority and chair JD Solomon in January this year.
Southern Environmental Law Center’s petition cites a staff opinion from the Rules Review Commission admitting it did not have authority to evaluate fiscal analyses.
The law center also turned over internal emails showing Rules Review Commission officials decided to block standards after pushback from several municipalities and industries — Greensboro, Asheboro, and Reidsville — involved in ongoing litigation against the Department of Environmental Quality for a special consent order to limit 1,4-dioxane discharges.
Meiburg — also chair of North Carolina’s Environmental Management Commission from 2019 to 2021 — said the EPA would generally resist withdrawing a state’s jurisdiction over the permit program. However, he told PCD the state’s abnormalities could make a first-time EPA withdrawal possible.
“Withdrawal of delegation is a very serious step and would not be undertaken lightly,” Meiburg wrote in an email. “Generally, EPA will resist doing this unless a State failing is significant enough to threaten the integrity of the program. That said, making the Office of Administrative Hearings the agency that issues permits (instead of a unit that hears appeals of permit decisions or enforcement actions) is highly irregular.”
Former EPA region four water director Jim Giattina agreed. He noted the intervention in individual permits from the Office of Administrative Hearings could motivate the EPA to take unprecedented measures.
“If North Carolina continues to block adoption of [PFAS] standards, that could trigger a whole different process for EPA to ultimately adopt the water quality standards,” Giattina said.
Meiburg noted a specific provision in the Clean Water Act, section 304(i)(2)(D), guiding conflict of interests for NPDES regulators:
“Funding, personnel qualifications, and manpower requirements (including a requirement that no board or body which approves permit applications or portions thereof shall include, as a member, any person who receives, or has during the previous two years received, a significant portion of his income directly or indirectly from permit holders or applicants for a permit.”
Office of Administrative Hearings judges are appointed by chief supreme court justice Paul Newby. Newby appointed Donald Van der Vaart as director of the Office of Administrative Hearings and chief administrative judge law judge in 2021. He is currently overseeing the 1,4-dioxane lawsuit against the Department of Environmental Quality.
Meiburg said the conflict of interest provision would be especially relevant if OAH judges intervene in individual NPDES permit cases. Van der Vaart and other administrative judges do not submit statements of economic interest to the Ethics Commission.
Taking over permit authority
Beyond limiting DEQ’s ability to execute National Pollution Discharge Elimination System permits, petitioners raised concern about several Environmental Management Commission members’ interest in expanding their authority over permitting. The nonprofits argued the action would diminish regulation of polluters.
After the Environmental Management Commission delayed PFAS standards at its July meeting, chair J.D. Solomon invited three speakers to advocate the Environmental Management Commission take NPDES permit authority over from the DEQ.
Several policy experts who spoke to Port City Daily raised concerns that some Environmental Management Commission members could have a direct conflict of interest in relation to the proposal.
“I have major concerns that the ethics rules passed by the General Assembly and enforced against members of the Environmental Management Commission have been largely ignored by some members of the commission in the past and the present circumstance,” Duke University director of environmental law Ryke Longest said.
Paul Calamita, general counsel for the North Carolina Water Quality Association, was an invited speaker at the July meeting. He advocated allowing the Environmental Management Commission to take over controversial permits if requested by applicants.
The North Carolina Water Quality Association represents wastewater utilities, including three municipalities — Greensboro, Asheboro, and Reidsville — that are currently suing DEQ over a 1,4-dioxane special consent order to limit discharges.
In a 2017 presentation to utility executives, Calamita advocated his clients work with state governments to push back against the EPA and avoid federal enforcement of the Clean Water Act.
Solomon works as an environmental consultant and is the owner of J.D. Solomon Consulting. His clients include Johnston County Department of Utilities, a member of the North Carolina Water Quality Association.
Environmental Management Commission member Michael Ellison is a project manager with consulting firm WK Dickson, also a member of North Carolina Water Quality Association. WK Dickson is also a member of the American Water Works Association, which filed a petition for review against the EPA’s PFAS standards in June.
Solomon indicated he was aware of the conflict of interest statute for NPDES permit regulators at the July meeting.
“I think we’re good on that,” he said.
Longest expressed concerns that EMC members who work as environmental consultants, lawyers, and engineers do not have adequate transparency requirements for disclosing private clients. Most members did not respond to PCD’s questions last month including if any of their current or former clients are PFAS manufacturers or firms opposed to PFAS surface and groundwater standards; if they believe PFAS surface and groundwater standards would be a financial liability to any of their clients; and if they have a contractual fiduciary duty to any of those clients.
“Unfortunately under our system we’re relying on the officials to do that themselves,” he said. “The ethics board itself is really deficient in holding people to account.”
Solomon invests at least $10,000 in Procter & Gamble, which holds NPDES permits in the state and is a member of several lobby groups that oppose PFAS regulation. 2014 emails obtained by investigative reporter Lisa Sorg show Procter & Gamble site environmental leader Rick Moody reached out to Greensboro officials to ask about reporting requirements for 1,4-dioxane. Compliance officer William Burdick told Moody if he positioned his hose away from the designated sampling location P&G could avoid reporting requirements.
A separate email chain obtained by Sorg included another invited speaker — Greensboro water reclamations manager Elijah Williams — who expressed grievances regarding the financial burden of DEQ’s attempts to limit 1,4-dioxane emissions.
In a 2015 email, Sen. Leader Phil Berger’s former science advisor Jeff Warren assured Williams and other officials that there would be no state 1,4-dioxane regulation without a federal mandate. He thanked them for bringing the issue to his attention, as it could set an “improper precedent.”
Emails addressed in SELC’s petition indicate Warren asked the Environmental Management Commission chair J.D. Solomon to delay 1,4-dioxane standards in February. Warren urged for time to execute fiscal research at his current position as executive director of the NC Collaboratory, an organization that coordinates research that informs the state’s policy-making process.
The North Carolina Manufacturers Alliance is another group that urged Environmental Management Commission members against adopting PFAS standards in recent emails. The trade association’s members include Chemours and DuPont, and has lobbied against state PFAS regulations in recent years.
Environmental Management Commission member Charles Carter is a partner at environmental law firm Earth & Water Law. E&W Law is a business partner of the North Carolina Manufacturers Alliance.
Carter also owns at least $10,000 in companies that hold NPDES permits, including transport company Norfolk Southern. The company reached a $600-million settlement including water remediation funding for residents impacted by the East Palestine hazardous waste spill last year.
A third invited speaker at the EMC’s July meeting was Keith Larick — natural resources director of the North Carolina Farm Bureau — who advocated Environmental Management Commission control of aquaculture and seafood-packing NPDES permits.
SELC noted in the petition that North Carolina Farm Bureau was behind lobbying efforts to kill SL 2023-63, which would have provided stronger NPDES permits for seafood produce. It claimed this would be another Clean Water Act violation justifying EPA intervention.
Agricultural commissioner Steve Troxler’s role in recomposing the EMC was also implicated in SELC’s petition; Troxler appointees Michael Reardon and Will Yarborough have both opposed PFAS standards.
Troxler announced his 2024 reelection campaign at the North Carolina Farm Bureau Annual Convention in Greensboro last December; the NC Farm Bureau PAC has donated $41,900 to the candidate.
The national Farm Bureau has lobbied against PFAS water standards. EMC member Reardon — who donated $4,600 to the agriculture commissioner’s campaign — opposed PFAS testing for produce during his time at the Department of Agriculture.
Tips or comments? Email journalist Peter Castagno at peter@localdailymedia.com.
Want to read more from PCD? Subscribe now and then sign up for our morning newsletter, Wilmington Wire, and get the headlines delivered to your inbox every morning.
