Updated at 2:30 p.m.
A proposed draft rule outlining health standards for PFAS in groundwater, which supports about 50% of drinking water in North Carolina, is heading for public comment.
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The North Carolina Environmental Management Commission on Thursday morning unanimously waived a 30-day public notice, a move that expedites the rulemaking process for three per- and polyfluoroalkyl substances, or PFAS: PFOA, PFOS and GenX.
Hearing locations and dates will be published in the state Register. A public comment period will begin once that information is published.
The commission is expected to vote on the draft rule next year. If approved, the rule is anticipated to be effective by mid-2025.
The proposed rule was revised from an earlier version the N.C. Department of Environmental Quality drafted that included five other manmade chemical compounds.
The commission’s groundwater and waste management committee earlier this summer voted to omit those compounds from the proposed rule, focusing on PFOS and PFOA, which the U.S. Environmental Protection Agency has classified as likely carcinogens, and GenX, a compound specific to Chemours’ Fayetteville Works facility on the banks of the Cape Fear River.
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In a brief presentation to the commission, Bridget Shelton, DEQ’s groundwater standards coordinator, explained that when there is no established health standard for a manmade compound, regulatory agencies refer to practical quantitation limits, or PQLs.
PQLs are considered the base line in testing laboratories. PQL values can change over time and vary across different laboratories, Shelton said.
“To develop a groundwater standard for a substance we find each of these values, if they are available, and then we select the lowest of the value to be the most protective of human health,” she said.
The proposed rule would be used to establish goals for cleaning contamination in groundwater, limit permitted releases of PFAS to groundwater, and ensure residents whose drinking water exceeds contamination limits receive alternative water supplies.
“With us bringing forward the three compounds, the PFOS and the PFOA, we all know they’re legacy compounds,” Commissioner Joseph Reardon said. “There’s no dispute about where EPA is in the context of this being potential carcinogens. We know the struggles that the citizens of North Carolina have had with GenX and so we’re comfortable with these three chemicals, taking the levels of which have been identified in the body of the request here. On the other five remaining compounds, had the committee chose to include those, it would have allowed more of the chemical in the water, but by the department regulating at the PQL level for those other five, lessens the amount of these compounds in the water.”
Commission members are continuing to hash out DEQ’s proposal to establish surface water rules for all eight PFAS.
Following heated exchanges Wednesday afternoon, the commission’s water quality committee unanimously voted to instruct DEQ to develop a draft rule and regulatory impact analysis, or RIA, that would establish monitoring requirements for every industrial and National Pollutant Discharge Elimination System, or NPDES, permit and require every industrial and significant industrial user to include PFAS source-reduction plans in their municipal pretreatment plans.
Commission Chair JD Solomon, acting as an ex officio member of the committee, suggested Wednesday the committee act on that proposed rule as a way to move forward and get regulations in place to reduce PFAS concentrations in surface water.
“I think we’re at an impasse,” he said. “I don’t blame anybody at this point. I want to get it done for the people of the state and I want to get PFAS reductions in surface water. This way we keep it with the industrial dischargers and we can identify who the bad players are and make them pay and not just spread it out to the whole watershed because we can’t agree on what all that stuff is right now. I want to get this out. I want to get this moving.”
DEQ Assistant Secretary Sushma Masemore explained that DEQ began requiring monitoring of PFAS discharges for NPDES permit holders almost a year ago.
“We’re going to need guidance to require source reduction and associated plans,” she said to the committee. “Is this mainly voluntary? What are we going to be asking? We’re going to need some directions in order to produce a credible (regulatory impact analysis) in order to produce a rule text that you all think meets this process and at the end of the day, when someone asks are we achieving reductions, we want to be able to answer this question.”
The earliest this new proposed draft rule would go before the full commission would be during its November meeting.
It is unclear when and if the water quality committee will approve DEQ’s proposed draft surface water rules for eight PFAS, including the PFOA, PFOS, GenX, PFBS, PFNA, PFHxS, PFBA and PFHxA to go to the commission for a vote.
Committee members at times verbally sparred over information included in DEQ’s proposed draft rule and regulatory impact analysis for surface water rules on those chemical compounds.
Members raised concerns about data that links the transfer of PFAS contamination in surface water to contamination in agricultural crops and animals, such as cattle that drink water containing PFAS.
“My concern is, have we overstated the exposure of PFAS from food?” Reardon said. “I’m concerned that the way this is written and the percentage that we’re associated with PFAS from food is going to unduly implicate the food in North Carolina as being latent with PFAS, or that our national food supply is latent with PFAS, that we expect 20-some percent of our exposure to come from food.”
DEQ’s Masemore explained that the water farmers and backyard gardeners use to grow food and hydrate livestock comes from surface water that could be laden with PFAS.
“The record shows that 86% of the water used in the agricultural practices, whether it’s to grow crops or to raise animals, are extracted from surface water intakes,” she said. “We’re not saying that all of this is there. What we’re saying is by having a regulation that reduces that PFAS in those surface waters, and therefore you’re reducing the concentration in those waters that are ultimately used for these purposes, then what are the potential benefits associated with that.”
The committee voted 5-2 that they will wait to move on the proposed draft rule until they meet with U.S. Food and Drug Administration officials or receive a written response from that agency for clarification.
Committee member Marion Deerhake opposed the motion, noting before votes were cast that comments she had emailed the committee chair on Aug. 6 were not included in a package shared with the committee and DEQ.
“I feel like my comments, my positive comments, are being ignored,” she said. “You said you would take care of it and it’s not in the package that you distributed. I am very concerned about the process that is being handled today. The comments that are coming in on the (regulatory impact analysis) are selective. They are from specific parties that are interested in this rule for their own benefit. I have to object to that.”
Some of her fellow committee members pushed back, saying they have not been unduly influenced.
“I reject that assertion that we are being guided by people from the outside,” Tim Baumgartner said. “You’re making it seem like we don’t have brains to look at this ourselves and make these determinations ourselves. I have an opinion on it. I don’t really care what the outside public says and I believe in our hearts because I think it’s the right thing to do for this motion to carry forward and for the department and EMC to have a discussion with FDA and (North Carolina Department of Agriculture) before this moves forward.”
Michael Ellison, the committee vice chair, concurred.
“I’ve received more phone calls and emails from outside individuals, somewhere around 200, that urged rapid and immediate action of PFAS based on these documents,” he said. “My questions are my questions and they’re technical. It does not serve the people of North Carolina to go forward to public notice or perpetuate this process when we know we have a severely flawed (impact analysis) that is, in many cases, predicated on fallacies, scientific fallacies.”
Both commissioners followed up on their comments Thursday.
Baumgartner said the commission has not “let cancel culture stand in our way.”
“When issues are pushed too hard, too fast, there’s always a back story and a reason,” he said. Some advice to pass on, if you push too hard, too fast, someone’s going to question a motive and ask why. Instead of trashing those attempting to understand, take a moment and work through the issues. You might get to the same end-point faster.”
