In emails, EPA warned NC DEQ against proposed changes to state water quality rules
The U.S. Environmental Protection Agency is concerned about a proposed North Carolina law that environmental advocates say could limit how state regulators control water pollution and told Secretary Elizabeth Biser in an email last week that it may not approve the changes.
A provision in House Bill 600 would prevent the N.C. Department of Environmental Quality from putting numeric limits for specific chemicals into water discharge permits unless the state had first established those limits via its full rule-making process.
This would make it harder to address emerging water quality contaminants like 1,4-dioxane or per- and polyfluoroalkyl substances (PFAS) via water quality permits, environmental advocates and Democrats in the General Assembly say. Republicans and at least one lawyer say the provision would give necessary certainty to both industry and regulators.
“The main problem with this section is that it tries to eliminate narrative standards all together, and the state can’t do that and maintain its permitting program,” Geoff Gisler, the Southern Environmental Law Center’s program director, told The News & Observer.
Pollution limits in permits are typically expressed with numbers that have already been approved via a rulemaking process. But some pollution, like debris or odor, is hard to measure so narrative standards commonly used by environmental agencies.
Narrative standards also serve as the basis for addressing chemicals and other pollutants for which a state hasn’t yet adopted a numeric limit, the EPA said in a 2017 water quality handbook. North Carolina addresses this in a General Statute titled “Standards for toxic substances and temperature,” which says any toxic substance, either alone or in combination with other waste, should not threaten aquatic life or people who use or drink the water.
This statute is how DEQ can regulate so-called “emerging contaminants” like PFAS and 1,4-dioxane in permits. The agency hasn’t set limits for those chemicals yet, but wants to keep them out of the drinking water supply.
“What we’re seeing here is a direct attack on DEQ’s ability to limit toxic substances from going into people’s drinking water,” Gisler said.
EPA: ‘Consider this risk’
The EPA has the power to approve, reject or tweak any proposed changes because DEQ is administering the state’s water quality program under the federal Clean Water Act. And emails between an official at the agency’s Atlanta office and Biser obtained by The News & Observer indicate the EPA might not sign off on the changes put forth by House Bill 600.
Biser emailed EPA officials on June 8 asking them to review the proposed language to evaluate whether it would create any conflict with federal authority.
Jeaneanne Gettle, the director of the EPA’s water office for Region 4, responded Monday, June 12, according to records obtained by The News & Observer. Gettle wrote that her office had conducted an “expedited and limited review” but had concerns about water quality provisions in the bill.
All discharge permits issued by states must include pollution limits that are strong enough to comply with the Clean Water Act, Gettle wrote. That includes using both narrative and numeric standards to protect water quality.
The EPA’s website makes clear that the agency believes both narrative and numeric standards are critical for an effective water protection program.
“The proposed legislation constrains DEQ’s ability to meet this requirement,” Gettle wrote to Biser.
Changes to North Carolina’s discharge permitting system would not immediately go into effect, Gettle wrote, and would need EPA approval.
Gettle also warned North Carolina officials about a section of the bill addressing water quality certifications. When considering whether to grant a so-called 401 certification, the bill says, DEQ must only consider discharges headed directly into navigable waters of the state. The agency must not consider other ways the project could impact water quality.
That’s inconsistent with a rule the EPA proposed last year reaffirming that agencies issuing water quality certifications should consider the full activity of someone seeking a permit.
If House Bill 600 became law, Gettle wrote, North Carolina’s ability to protect water by issuing the 401 certificates would be more limited than what other states and tribes have available to them.
“Such circumstances could present a basis for potential litigants to challenge certifications by North Carolina made pursuant to the proposed measure if enacted,” Gettle wrote. “EPA recommends that North Carolina consider this risk before adopting this portion of the draft legislation.”
More rules, more transparency?
Not everyone agrees with Gettle’s and Gisler’s interpretations of the proposed law.
Anna Wildeman, an environmental attorney with Troutman Pepper’s Washington, D.C., office who specializes in water law, served as principal deputy assistant administrator in the EPA’s Office of Water during the Trump administration.
The EPA, Wildeman said, encourages states to translate narrative standards into numeric discharge limits. That can be done via rulemaking, but it can also be more informal or even take place in individual permits.
Requiring DEQ to undergo the rulemaking process before putting a numeric limit in a permit, Wildeman said, would boost regulatory certainty and transparency.
“When you force the agency to go through that transparent process and get that final rule on the books, everybody knows the lay of the land and what rules apply and that helps the agency conduct its daily business and businesses to get permits and apply for permits,” Wildeman said.
Wildeman also said EPA would be “hard pressed” to disapprove the changes if they are intended to prevent narrative standards from being translated to numeric limits in permits.
“If it is intended to or interpreted by EPA more broadly to preclude the use of narrative and numeric discharge limits unless a numeric water quality standard is promulgated by rule, EPA might give the state a hard time over it, but I’m still not sure EPA could establish that it violates the Clean Water Act,” Wildeman said.
Sen. Norm Sanderson, a Pamlico County Republican, told The News & Observer he hopes the EPA will approve the proposed changes but that it could be a drawn-out process.
“We’re just going to have to wait and see what that’s going to look like. Any time when you’re trying to merge state and federal regulations and get approvals on both sides, it’s a delicate situation,” Sanderson said.
Environmental concerns in regulatory reform bill
The provisions around when DEQ can apply standards in permitting aren’t the only ones that have caught environmental advocates’ attention in the regulatory reform bill.
Another environmental provision would require DEQ to only consider cumulative impacts of nearby pollution or requiring updated pollution controls at facilities that are seeking new water discharge permits or seeking to discharge more.
And another provision would require DEQ to approve water quality certifications within 60 days of receiving applications, a move that some believe is meant to boost the chances a potentially revitalized MVP Southgate natural gas, has of receiving permits in the state.
That water quality certification could be pulled from the regulatory reform bill, Sanderson told The News & Observer, and included in another piece of legislation that allows DEQ to collect higher fees as part of its permitting process.
“We said (to DEQ), OK, we’ll do a trade-off. We’ll look at your fee increases, but you’ve got to help us become more certain,” Sanderson said.
The regulatory reform bill was set to be heard in the Senate Rules Committee this week but was pulled from the calendar about a half hour before the meeting was scheduled to begin.
Once that committee approves the bill, it would move to the Senate floor. From there, the House would need to concur with any changes before it would be sent to Gov. Roy Cooper.
This story was produced with financial support from the Hartfield Foundation and 1Earth Fund, in partnership with Journalism Funding Partners, as part of an independent journalism fellowship program. The N&O maintains full editorial control of the work.
This story was originally published June 23, 2023 at 8:00 AM.