Monthly Archives: August 2017

The Laws in the Background of the GenX Issue

August 21, 2017.  In  June, residents of southeastern North Carolina learned of a previously unknown contaminant in the Cape Fear River;  a study undertaken by an N.C. State University researcher documented the presence of the perflourinated compound  known as “GenX” in a report published in December 2016. The river provides drinking water for Wilmington-New Hanover County and other water systems.

The U.S. Environmental Protection Agency (EPA) began studying the effects of perfluorinated compounds used in firefighting foam, water repellants, Teflon, and other products more than fifteen years ago.  EPA worked with chemical companies to phase-out the two compounds most commonly used, perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), because of concerns about persistence in the environment and human health risk.  In 2000, 3M Corporation announced a phaseout of PFOS. Under a 2006 agreement with EPA, eight companies committed to phase out PFOA by 2015. In 2009, Dupont began manufacturing GenX,  a chemically distinct perflourinated compound,  at its Fayetteville plant as a replacement for PFOA. (The Chemours Company, a Dupont spin-off, now operates the Fayetteville plant.)

The discovery of an unregulated chemical with uncertain health and environmental risks in a water supply source created a high level of concern in the affected communities. It has also drawn attention to gaps in the safety net of federal environmental regulations with implications for all unregulated contaminants in water supplies.  In many ways, the GenX controversy parallels the earlier controversy in North Carolina over hexavalent chromium (a contaminant associated with coal ash) in drinking water wells. In each case, the absence of a federal standard —  or EPA’s failure to update a standard based on current science —  left the state struggling to evaluate health risk and develop an appropriate regulatory standard.

A number of news organizations have provided detailed coverage of the GenX controversy and Cape Fear Public Utility Authority posts key documents and monitoring results online . This post will focus on the key federal laws involved and the  gaps in those laws that the state may need to fill. Although I will use the GenX issue as an example, this blogpost should not be interpreted as an assessment of legal claims or liabilities associated GenX contamination in the Cape Fear River.

Toxic Substances Control Act (TSCA). EPA regulates manufacture and importation of chemicals under the  Toxic Substances Control Act of 1976. Two of the key requirements of the law:

♦ Section 5 requires manufacturers to give  EPA notice before manufacturing a new chemical. (EPA maintains a Toxic Substances Inventory of previously approved chemicals.)  Based on review of information submitted with the notice, EPA may  find the new chemical is “not likely to represent an unreasonable risk” and approve manufacture. But if EPA doesn’t have sufficient information to evaluate environmental and health effects or if the lack of information creates an unreasonable risk of harm, EPA can issue an order requiring additional testing or limiting release of the chemical to the environment. Concern that GenX may have risks similar to those already associated with PFOA and PFOS caused EPA to enter  a 2009 consent order that (among other conditions) required Dupont to effectively eliminate release of GenX in wastewater and air emissions from the  manufacturing operation.

♦ Section 8 of TSCA requires chemical manufacturers and distributors to inform EPA of any information the company obtains that would reasonably support a conclusion that a chemical presents a substantial risk of injury to health or the environment.  In 2005, EPA used Section 8 of TSCA to assess a penalty against Dupont for withholding information the company had on the environmental and health effects of PFOA. That EPA action ultimately led to the phaseout of PFOA and development of alternatives like GenX.

Regulatory Gaps –TSCA covers chemicals manufactured or imported into the United States. It does not apply to a chemical by-product of a manufacturing or industrial process.  The TSCA  consent order for GenX limits release of GenX to the environment by the manufacturer,  but not the discharge of GenX  unintentionally created as a result of an unrelated manufacturing or industrial process. As a result, TSCA can’t address all contaminant sources. The TSCA review process also puts EPA in the position of constantly chasing the next generation of potential contaminants.

Safe Drinking Water Act. EPA has adopted national drinking water standards for 88 contaminants. Public water systems must monitor for those contaminants and insure that   water delivered to its customers meets the national standard for each regulated contaminant. Given the number of compounds used in manufacturing or produced as a by-product of industrial activities, national drinking water standards clearly do not exist for many contaminants. EPA has not adopted a  drinking water standard for GenX or any other perfluorinated compounds. EPA has issued a health advisory for PFOA and PFOS (combined) of 70 parts per trillion based on longterm exposure, but a health advisory is not an enforceable drinking water standard. EPA has also said that the PFOA/PFOS  health advisory does not apply to other perflourinated compounds like GenX.  

EPA continues to study the need for a national drinking water standard for perflourinated compounds.  Under the Safe Drinking Water Act, EPA’s decision will be based on: likelihood the contaminants will be found in drinking water; the health effects; and the technical/economic feasibility of treating the water to reduce any health risk. It isn’t clear whether EPA will propose a drinking water standard for PFOA/PFOS and the decision to develop a standard for next generation alternatives like GenX would be even further in the future.

Regulatory Gaps —  EPA has not adopted a national drinking water standard for every contaminant that may be detected in a water source or in a public water system; some existing drinking water standards do not reflect the most recent science.  In the absence of a drinking water standard, an EPA  health advisory can provide guidance to the states on safe levels but health advisories  do not exist for all contaminants.  Many of the environmental and human health risks associated with PFOA and PFOS have been known for 10-15 years, but EPA has not yet proposed a drinking water standard and only issued a health advisory based on long-term exposure in 2016. In the absence of a national drinking water standard or health advisory, presence of significant levels of a contaminant in water supplies may require the state to develop a benchmark for safe drinking water.

Clean Water Act.  The Clean Water Act protects surface waters like lakes and rivers by requiring a permit to discharge waste to those waters.   National Pollutant Discharge Elimination System  (NPDES) permits allow wastewater treatment plants and industries  to discharge wastewater meeting specific pollutant limits. Like other states, North Carolina has assumed responsibility for issuance of NPDES permits in the state.

EPA has set technology-based wastewater limits for individual categories of industries, including chemical plants. But those limits do not cover all pollutants or every possible waste stream.  In the absence of an existing EPA limit or when faced with a new type of waste stream, the state permit writer must set a limit on a case-by-case basis based on factors set out in the Clean Water Act. That puts responsibility on the state water quality agency to determine the appropriate limits for these unregulated pollutants.

Regulatory Gaps — Existing state and federal water quality standards and guidelines for permitting wastewater discharges do not address every potential pollutant. In the absence of federal effluent guidelines for a particular pollutant, the burden will be on the state water quality permitting agency to look at any existing information on the environmental and health effects to set a permit limit.

The challenge for the state. These federal laws create frameworks for approval of the  manufacture and use of chemicals; release  of chemicals to the environment in wastewater; and protection of  drinking water sources.  But the EPA standards adopted under those laws are not comprehensive and often lag behind the emergence of new contaminants or evolving science on risk.  When an unregulated contaminant affects a drinking water source, the responsibility for dealing with the immediate environmental and public health concerns falls on the state.

The NC Attorney General’s Office and Environmental Protection

August 14, 2017. The final budget adopted by the N.C. General Assembly on June 22  included a surprise reduction of just over $10 million in the budget for the state Attorney General’s Office (AGO).  Legislative leaders added the cut during  final budget negotiations between the two chambers. The budget bill  limits the Attorney General’s ability to meet the “management flexibility reduction” in a way that will require all of the cuts to be taken from administrative and legal services. The Attorney General’s Office has only 24 administrative positions, so most of the reduction will have to be met by reducing legal services — the lawyers and paralegals who represent state agencies and handle appeals of criminal convictions on behalf of local district attorneys.  Earlier this month, Attorney General Josh Stein announced that the AGO will meet $7 million of the $10 million cut by eliminating 45 positions; shifting additional legal services positions to funding provided by the state agencies the attorneys represent; and handling fewer appeals of criminal convictions. Stein has said that he cannot meet the remaining $3 million in budget reductions and asked the legislature to restore that amount to the AGO budget.

House and Senate leaders responded that the Attorney General has sufficient resources to meet his constitutional and legal responsibilities.   In an August 3  Associated Press story, Emery Dalesio reported that House Speaker Tim Moore suggested the legislature may shift responsibility for civil cases out of the AG’s Office :

House Speaker Tim Moore said lawmakers are considering legislation to let agencies hire their own in-house lawyers for civil matters, shifting that work from Stein’s office. But Stein has enough money to handle criminal cases, Moore said. “He has adequate resources, very adequate resources to take care of those issues,” the Republican from Kings Mountain said.

A look at what this means for environmental protection —

Background for the new budget cuts:  Under state law (G.S. 114-2), the Attorney General has a duty to represent state agencies in both civil and criminal cases.  Environmental protection programs rely heavily on civil enforcement; only a very small percentage of cases can be referred for criminal prosecution because of specific aggravating factors.  The 45 positions already identified for elimination by AG Stein include three positions in the Environmental Division of the AGO —  two paralegals and a water quality attorney.  If the legislature refuses to give any relief on the remaining $3 million in cuts, additional positions in the Environmental Division may be lost.  All of these new cuts  come on top of significant reductions over the previous four years. Between 2012 and the end of 2016,  the Environmental Division of the AGO lost 11 lawyer positions — seven as a result of legislative action and four contract positions DEQ did not renew in 2016.

The kind of civil cases the Attorney General’s Office handles for environmental agencies:

♦   Civil penalty collections.  Environmental agencies rely on civil penalty assessments as the most common enforcement response to violations ranging from illegal dumping and improper handling of hazardous waste to unpermitted air pollution sources. The AGO represents DEQ in civil actions to collect unpaid penalties.  Lack of an effective collection program undermines environmental compliance, sending a signal that there may be no real penalty for violation.  An example of a civil penalty case:

— In 2007, DEQ’s  Division of Waste Management assessed a large penalty ($553,225) against EQ Industrial Services for violations preceding and possibly contributing to an explosion and fire at the company’s hazardous waste handling facility in Apex  that forced the evacuation of 17,000 people.

♦  Civil lawsuits to stop an ongoing environmental violation; require cleanup of environmental contamination; or to seek reimbursement of state cleanup costs.  Examples:

— The 2013 lawsuit against Duke Energy to require the company to take action to prevent groundwater contamination and unpermitted discharges from coal ash stored at the Riverbend Steam Station in Gaston County and several other coal-fired power plants.

— A 2016 consent agreement with Flextronics International requiring the company to fully investigate the extent of groundwater contamination affecting residential wells in a Wake Forest subdivision and do any necessary environmental remediation.  The small circuit board assembly company that caused the solvent contamination had been sold and the original owners had no assets.  AGO lawyers identified Flextronics International as another legally responsible party based on its acquisition of the smaller company and its environmental liabilities.

♦  Civil lawsuits challenging state environmental policies and individual permitting decisions.   Examples:

— A  lawsuit by the State of South Carolina asking the federal courts to allocate water in the Catawba River and Yadkin River between the two states. The lawsuit responded to N.C. decisions on water use within the state, but affecting downstream flows to S.C.

—  The conflict between the State of North Carolina and Alcoa over rights to the bed of the Yadkin River. The case came out of Alcoa’s application for a state water quality approval necessary to renew the company’s  hydropower license on the Yadkin.

— A lawsuit by oceanfront property owners seeking the closure of beach access walkways near their homes and claiming the right to exclude the public from the dry sand beach seaward of their property.

The bottom line. Loss of legal representation in civil cases would  weaken the state’s ability to  protect public health and natural resources critical to the state’s economy. Loss of the legal expertise necessary to identify and hold responsible  the people who cause  environmental contamination shifts the cost of contamination to taxpayers.  In the absence of an alternative — and funded — plan to provide an equivalent level of legal services, the reduction in the AGO’s budget could significantly undermine environmental protection.