SELC’s Derb Carter on North Carolina’s power to protect citizens from new toxin, GenX

GenX, a nonstick chemical toxin, was recently found in the drinking water of residents in the Cape Fear region near Wilmington, North Carolina. The chemical originated at Chemours, an upstream manufacturer.

At issue is what powers North Carolina has to regulate the chemical, which has yet to be evaluated by regulators to determine its toxicity.

To better understand what’s at stake, NC Policy Watch spoke with Derb Carter, Director of SELC’s Chapel Hill office, about the laws at play as residents grapple with how to ensure their drinking water is safe. Below is an excerpt of their conversation. You can read the full interview here.

How can companies like Chemours circumvent the state’s powers to regulate their discharge of emerging contaminants?
Carter: The Hardison amendment prohibits DEQ from adopting an environmental standard if a federal rule has been adopted pertaining to the same “subject matter.” So whether the state can adopt a particular standard depends on how you define that—the “subject matter” of the federal rules.
If I were an attorney for Chemours, I’d argue that the “subject matter” of the federal rule is the comprehensive national standards for this category of industry. The comprehensive list of allowed pollutants doesn’t include GenX; because GenX is not included, the state cannot adopt a limitation for GenX for this industry.

Under the law, DEQ or the Environmental Management Commission can adopt a temporary rule in the case of “serious or unforeseen threats.” What about a permanent rule?
Carter: Under existing law, DEQ can move quickly to adopt a temporary rule, but only for a limited duration. Then it has to be replaced by a permanent rule, which has to go through rule-making process. That includes public notice and comment.

DEQ’s ability to enact a permanent rule, though, is being jeopardized in House Bill 162. The bill would prohibit DEQ or the Environmental Management Commission from doing that.
Carter: The bill passed by the Senate and pending in the House layers financial requirements on top of the Hardison amendment. Under the bill, an environmental regulation can’t cost more than $100 million over five years. That’s $20 million a year. And a cost of $10 million over five years or $2 million a year requires legislative approval.

That’s really not much money. Cleanups are very expensive. A company could burn through that amount very quickly.
Carter: Yes, and under the bill you can’t count the benefit of the rule. So if it cost $100 million to regulate GenX but the benefit to the public is $800 million, DEQ or the EMC still couldn’t enact a rule to protect the public from GenX.
It’s completely outrageous. Instead of trying to impede the state’s ability to protect the public from water pollution through House Bill 162, the legislature should repeal the Hardison amendment and allow the state to adopt environmental protections necessary to protect the public.

What are the consequences of the legislature prohibiting DEQ or the EMC from enacting stronger rules than the EPA’s?
Carter: The Hardison amendment and its restrictions put North Carolina’s environmental protection at the mercy of [EPA Administrator] Scott Pruitt and the Trump administration, which is not a particularly comforting thought. And it ensures North Carolina’s protections for air and water quality are at the bottom in the nation.