The Environmental Management Commission voted unanimously Thursday to send a rule outlining health-based standards for three per- and polyfluoroalkyl substances to the state Rules Review Commission.
The 15-member commission also wrapped up the rulemaking process to “clarify” the definition of wetlands, as directed by a summer 2023 session law. The draft language now heads to the Office of Administrative Hearings. Per the session law, the rule is exempt from the Rules Review Commission.
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During the environmental commission’s meeting held in Raleigh and streamed virtually, members voted on the draft rule that specifically targets PFOA, PFOS, and GenX in groundwater, which supports about half of drinking water in North Carolina.
Under the rule that is now expected to go before the rules commission at its Oct. 30 meeting, permitted releases of PFAS to groundwater will be limited. The rule also establishes goals for cleaning contamination in groundwater and ensures residents whose drinking water exceeds contamination limits receive alternative water supplies.
Comments the N.C. Department of Environmental Quality received on the rule through a public comment period late last year overwhelmingly supported the rule, but, as Commissioner Dr. Jackie MacDonald Gibson noted Thursday, the public also raised concerns that the rule did not set standards for additional PFAS.
“It’s a very emotional issue,” Gibson said. “I went to the (public) hearing in Wilmington and people there, their families have been directly affected by PFAS exposure to the point that some people were afraid to have their kids drink water at school. I think a lot of people are going to be glad that we’re moving forward with this. They’re going to wish we were doing more.”
The environmental commission’s groundwater and waste management committee last year voted to omit five of the eight compounds DEQ staff originally presented to be included in the rule.
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The committee chose to focus on PFOS and PFOA, which the U.S. Environmental Protection Agency classifies as likely carcinogens, and GenX, a compound specific to Chemours.
Commissioner Tim Baumgartner, who chairs the groundwater and waste management committee, explained that the compounds that were omitted – PFBS, PFNA, PFHxS, PFBA and PFHxA – are being regulated at the practical quantitation limit, or PQL.
PQL is considered the base line in testing laboratories.
“It’s not that we’re not regulating PFAS. It is a matter of what the quantitative limit is for remediation, or what the target level is,” he said.
Commissioner Robin Smith said she regretted that the commission did not adopt health-based standards for all eight PFAS as initially presented by DEQ.
“It would have actually helped some land owners and some responsible parties who need to clean up groundwater by providing them with a health-based standard that is above the PQL,” Smith said. “I’m going to vote for these. I think this is a good rule, but to me, I can’t follow the reasoning of dropping the other five when, in fact those would have made the rules less stringent, but still would have maintained a health-based standard for those other five.”
Environmental Commission Chair JD Solomon responded, saying that instead of using a health-based equation, one that is subject to change, for the compounds that were omitted, the commission “defaulted to PQL.”
“Keep as much PFAS out of the water as possible,” he said. “So, while PFAS is being debated at the national level, and whatever level, we decided as a body to keep it as stringent as possible, even for cleanups.”
If approved by the rules commission next month, the rule would become effective Nov. 1.
A proposed draft rule requiring monitoring and development of PFAS minimization initiatives for dischargers into surface water will be on the commission’s water quality committee’s agenda in November.
Members of that committee voted 4-2 Wednesday to include the draft rule on their meeting scheduled Nov. 12. The proposed rule would require industries that directly discharge compounds into surface water and all significant industrial users that discharge to publicly owned treatment works to monitor their releases of PFOA, PFOS and GenX.
If the committee approves the rule, it will go to the full commission for consideration Nov. 13.
During staff comments, the commissioners were informed that DEQ is now requiring Chemours to expand the number of private wells eligible for PFAS contamination sampling to about 14,000 additional residences in New Hanover, Brunswick, Columbus and Pender counties.
Related: DEQ requires Chemours to expand PFAS well water testing
The expanded area was identified through additional data analysis conducted by the state and Chemours. Chemours’ Fayetteville Works plant in Bladen County discharged PFAS, including GenX, for decades directly into the Cape Fear River, ground and air.
Wetlands definition rule
The General Assembly with a June 27, 2023, session law directed the commission to adopt a rule consistent with language in the statute that read “Wetlands classified as waters of the State are restricted to waters of the United States as defined by” federal regulations.
Sue Homewood with the Division of Water Resources explained Thursday to the commission that, “We had the session law in 2023, the EMC requested that we move forward with this rule amendment, even though we were implementing the rule and are implementing the session law already.”
Around the same time this session law was drafted and making its way through the state legislature, the U.S. Supreme Court ruled in favor of an Idaho couple, the Sacketts, who sued the Environmental Protection Agency for putting a stop on work to backfill what the federal agency argued was wetlands.
The Sackett v. EPA decision on May 25, 2023, changed the definition of “waters of the United States,” which are navigable waters protected under the Clean Water Act. The definition now excludes noncontiguous wetlands, or those not connected to navigable waters. The EPA aligned its definition with the court case effective Sept. 8, 2023.
When the North Carolina General Assembly put the 2023 session law through that summer, commissioners worked with staff on how best to proceed. The matter was on pause between April 2024 to January of this year, when the water quality committee approved the language to go to the full commission. Members approved in March the proposed text rule and moving ahead to public comment, which was open April 15 to June 30. A public hearing was held June 26.
Homewood said 134 written comments were submitted and 13 oral comments were presented at the hearing, which are in summarized in the hearing officer’s report.
Of all the comments, she continued, only one was in favor of the rule amendment.
“In general, the comments opposed to the rule amendment were concerned about loss of wetland protection in North Carolina,” Homewood said, such as what the rule means for flooding, resiliency and wildlife habitat.
The public also commented that the state is investing in mitigation and flood resiliency that these wetlands could help provide, and there were some comments stating that the General Assembly should not dictate a rule making body on how to implement rules.
The wetlands definition rule was approved with 10 voting for the rule and commissioners Smith, Gibson, Dr. Jennifer Orme-Zavaleta, Dr. Ann Chelminski and Dr. Ilona Jaspers voting against. In a separate vote, the hearing officer’s report passed 13-1, with Orme-Zavaleta voting against no and Gibson abstaining.
Homewood said the next step is to submit the rule to the state’s Office of Administrative Hearings, then to General Assembly, which would be the 2026 session. After that, it needs to be approved by the EPA, because this definition is part of the state’s water quality standards.
Karen Higgins with the water planning section said that the EPA has 60 days to approve, 90 days to disapprove, or nothing happens if they take longer. If the EPA disapproves of the standards change, the agency sends it back to the state.
Solomon said he had been asked what could be done about the rule and the bottom line is “our rules have got to be consistent with state laws. And so while this is a little unusual to say, they did their action, we have to clean up our rules now to make sure the definitions fit.”
He continued by pointing out that the rulemaking process “is more or less procedural” and there are concerns but the commission has to comply with the state laws.
Baumgartner reiterated that it was a statutory directive from the General Assembly and the commission is following the Administrative Procedures Act by making this rule change, which Commissioner Kevin Tweedy acknowledged, but said he’s hoping that the state can disconnect from the federal definition.
“North Carolina has unique resources that I think a lot of people, obviously, from the comments, agree it should be protected. I think we can do that protection in a smart way that that takes into account everybody’s concerns and issues with wetlands. But I think connecting it to the (federal definition) and keeping it that way is just not a good long-term policy,” Tweedy said.
Smith, a longtime attorney, called this “bad policy” and part of the reason is that nothing at the federal level is about which or whether these wetlands are important for ecological or other purposes.
“The only issue at the federal level is federal jurisdiction, and that’s driven by the Commerce Clause of the United States Constitution, and it’s driven by the language of the Clean Water Act,” Smith said. “It’s a jurisdictional issue at the federal level. It has nothing to do with assessment of the value of these wetlands.”
Managing the wetlands is primarily a state responsibility, which is why “it’s a mistake to tie state decisions about the value and protection of wetlands to a federal jurisdictional issue,” Smith said.
Aside from bad policy, she said, it’s bad legislative practice, because there’s a section in the session law that causes the entire session law language to sunset as soon as this rule is adopted.
“What the legislature did not change,” Smith said, is the existing definition of waters of the state in a statute, which will continue to be in effect after the session law expires.
She reiterated a point Solomon made that the commission’s rules cannot be in conflict with state law. “But unfortunately, what the legislature has given us is a situation that will create a conflict with state law.”
Smith voted against approving the rule, saying that she understands “the realities of situation, but between the policy and the legislative process and the, in my view, misuse of the session law in this way, without clarifying a statute, makes this an easy vote against for me.”
