Politics & Government

Why some environmentalists say a new anti-pollution bill could actually help polluters

This June 15, 2017, file photo shows the Fayetteville Works plant near Fayetteville. Wilmington, Delaware-based Chemours Co. has faced questions about GenX, an unregulated chemical with unknown health risks that flowed from the company’s plant near Fayetteville into the Cape Fear River.
This June 15, 2017, file photo shows the Fayetteville Works plant near Fayetteville. Wilmington, Delaware-based Chemours Co. has faced questions about GenX, an unregulated chemical with unknown health risks that flowed from the company’s plant near Fayetteville into the Cape Fear River. AP

After failed attempts this year to address newly discovered pollution in North Carolina's drinking water, the state's Republican-led legislature now appears ready to pass a wide-ranging bill that contains millions of dollars for pollution response as well as new regulatory powers for Democratic Gov. Roy Cooper.

However, the environmental community is split over whether to celebrate or criticize the bill, and Cooper has yet to say if he supports it. Some environmental groups say the bill could actually end up helping the companies that pollute.

The companies Chemours and DuPont secretly discharged the compound GenX and similar chemicals into the Cape Fear River from their plant south of Fayetteville for years or even decades, state officials and lawmakers have said, although it only came to light last June, when the Wilmington StarNews reported on it.

On Thursday, legislators in the state House and Senate filed identical bills tackling GenX and other "emerging contaminants."

The Department of Environmental Quality in Cooper's administration declined to comment. And a spokesman for Cooper, Ford Porter, said Thursday evening that Cooper was still reviewing the legislation — but that in general he would've preferred lawmakers to have acted much faster.

"DEQ is holding Chemours accountable and Governor Cooper proposed a strong plan to deal with emerging contaminants," Porter said. "It's shameful that it took legislative Republicans this long just to agree among themselves and that they appear only to be spurred by election year politics."

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The legislature failed several months ago to reach an agreement on a different bill to fund the state's GenX response and hasn't taken it up since then. But on Thursday the sponsors from both chambers — who included the Republicans' main GenX bill writers, Wilmington's Rep. Ted Davis and Sen. Michael Lee — defended their work in a joint statement.

"We are pleased the House and Senate worked together to come up with a comprehensive plan that will help stop the pollution of our water supply, provide our families, neighbors and constituents access to clean, safe water and finally hold Chemours responsible for its pollution,” they wrote.

"This plan accomplishes our immediate goal of addressing water quality in southeastern North Carolina and puts the tools in place to help protect North Carolinians from GenX and other emerging compounds going forward.”

Will changes be "huge"? Or "pointless"?

Outside of government, those interested in the scientific approach to fighting these newly discovered pollutants agree that action is needed quickly, although there is some disagreement on whether this specific bill would help or hurt the state's efforts.

At issue is a part of the bill that would let Cooper shut down the Chemours plant as soon as next month.

The N.C. Sierra Club and Southern Environmental Law Center came out against the new bill, saying it would actually slow down and complicate North Carolina's ability to stop polluters like the one at the heart of the GenX pollution.

"Rather than clarify or enhance state enforcement authority, this bill imposes multiple requirements on the Governor before he can order a facility that is potentially poisoning people to cease all polluting operations and activities — creating unnecessary hurdles to effective action," Derb Carter of the Southern Environmental Law Center said in a news release. "This is pointless given the Governor’s existing authority, and appears intended to protect the polluter, Chemours."

Cassie Gavin, the head lobbyist of the Sierra Club's North Carolina chapter, likewise said that "what you could end up with is actually restricting the agency's power."

The fears those two groups cited boil down to how courts might one day interpret the state's ability to crack down on polluters.

The governor, through DEQ, already has the ability to stop companies from operating if they're polluting too much. That ability is broadly defined.

Gavin said that since this bill would add new language that's much more specific — clearly targeted at just Chemours — it could harm the government's ability to go after any other company. She said that's because when there are two similar laws on the books, courts tend to favor the more specific, detailed law. At the very least, she said, this bill would increase the chances of a lengthy legal battle in future pollution cases.

But Shelly Carver, a spokeswoman for Senate Republicans, said the legislature simply wants to stop GenX pollution and that this provision was put forward since Cooper hasn't yet used his existing powers to stop pollution at the plant.

"We are one year into the Cooper administration’s response to this problem and are still seeing unauthorized releases of GenX into groundwater, surface water and the air around the facility," she said.

DEQ has sued Chemours and revoked some of its permits, but says pollution continues to be an issue at the plant.

Gavin also criticized how the bill would fund the fight against GenX.

Cooper is asking the legislature for $14.5 million for DEQ and the Department of Health and Human Services — to find where these newly discovered pollutants are, and figure out how harmful they are and how to deal with them. The legislature, however, would give DEQ just $1.8 million while also freeing up $8 million for the N.C. Policy Collaboratory, in the form of grants to do the same type of work Cooper wanted DEQ and DHHS to do.

Gavin said that will create unnecessary layers of bureaucracy since only DEQ can act on whatever data on pollution is eventually collected.

"No matter how much information the universities produce, they're not legally capable of doing the enforcement part," Gavin said. "So you really need DEQ to be funded. ... And there's been seven years of cuts so I don't think those resources are there."

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But Lee Ferguson, a Duke University environmental engineering professor who is one of several scientists at the forefront of GenX research in North Carolina, praised the bill.

He expects that if it becomes law then he and his colleagues, as well as other scientists around the state, will be able to get funding through the collaboratory to start research by this fall and have it ready by next July. And he has high hopes for what they'll be able to accomplish.

"I can’t stress enough how huge this will be for our state overall," Ferguson said. "If things go as I hope, North Carolina will lead the nation in ambient water emerging contaminant monitoring within the year."

Specifically, he said, the funding could help "to set up the nation’s most sophisticated" program to monitor for these types of chemicals. He added that whatever they do, "it will be critical to work with DEQ."

Why are people worried about GenX?

In 2017 the same companies under scrutiny in North Carolina for GenX settled lawsuits related to similar chemical pollution in West Virginia for $670 million.

And while the extent of chemicals like GenX is still unknown in North Carolina, the focus for now is in southeastern North Carolina. Most of the people in that area, from Fayetteville to Wilmington, get their water from the Cape Fear River — which state officials say was being secretly polluted by DuPont and its spinoff Chemours for years with GenX, as part of Teflon manufacturing operations.

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There's now a class action lawsuit filed here that makes similarly troubling claims as that West Virginia lawsuit did — including that Chemours and Dupont are responsible for the fact that multiple counties in southeastern North Carolina have among the highest rates of certain kinds of cancers in the entire country.

The new bill in the legislature would also give money to local governments in that area, to help homes with private wells get connected to municipal water systems, and it would give the Cape Fear Public Utility Authority funding to test new water treatment technology since current systems aren't built to handle these previously unknown chemicals.

Doran; 919-836-2858; Twitter: @will_doran