Industry gets requested changes on GenX bill

Among the changes: No longer would North Carolina test drinking water supplies for pharmaceuticals and an array of chemicals called emerging contaminants as part of a wide-ranging search for what's in the water. The focus is narrower under legislation about to pass this General Assembly, keying on GenX and related chemicals that have captured most of the public attention since their presence was revealed in Wilmington's drinking water one year ago.

The legislation also provides for a different spectrometer than the one requested by the state Department of Environmental Quality – one able to identify chemicals it's told to look for, not one that can identify a wider spectrum of compounds.

The broader testing would have put North Carolina out of step with the rest of the country, dissuading manufacturers who might consider relocating to, or expanding in, the state, according to Preston Howard.

Timeline: Tracking GenX contamination in NC

Howard is president of the North Carolina Manufacturers Alliance and a former director of the state Division of Water Quality. Those broader tests "will almost assuredly reveal that there are many, many chemicals, pharmaceuticals, and other consumer products in those water supplies," Howard wrote state legislators last week, warning them not to "open a Pandora's Box."

"Most will be detected at very low levels," he wrote. "But just as was the case with GenX, there will be very little information about the toxicity of those substances, resulting in the same or similar controversies over whether the concentrations pose any significant risk to public health or the environment."

Neither legislators involved in the bill nor environmental attorneys who also worked to change the bill in other ways said the Manufacturers Alliance had undue input over the final language. Howard and the manufacturers were "part of a diverse coalition that included environmentalists and manufacturers that had major problems with the bills," according to state Rep. Chuck McGrady, a Republican budget chairman in the House and a former Sierra Club national president.

“I think a lot of factors went in," SELC staff attorney Brooks Pearson said of the process Thursday. "A lot of groups were unhappy with it for different reasons,"

The final language is "an improvement," Pearson said, "but it’s still a net loss for the environment.”

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State leaders have struggled over how to respond to GenX almost since the Wilmington StarNews reported last year that the chemical, a component in Teflon, firefighting chemicals, stain repellents and other products, was in the Cape Fear River and local water supplies.

The compound was developed to replace C-8, which was manufactured by Chemours' predecessor company, DuPont, and triggered hundreds of millions in legal settlements over ties to cancer. The health effects of GenX and similar compounds known as per- and-poly-fluoroalkyl substances (PFAS) are not well studied, but some research points to a cancer link in animals.

State regulators have said repeatedly they believe water is safe to drink as long as GenX is present in extremely small quantities. They put the "health goal" threshold at 140 parts per trillion.

Chemours is one of more than 50 companies in the alliance, and the membership's concerns went "way beyond Chemours," Howard said. Howard lobbies for the alliance, not Chemours, which registered a lobbyist at the General Assembly last week after going much of this year and last year without one.

In his letter, Howard blasted the process that the state Department of Health and Human Services used to reach the goal, which was initially set at 70,000 parts per trillion then lowered to 140. Chemours has asked for a return to the 70,000 parts per trillion standard, and Howard argued in his letter to lawmakers that toxicologists used the wrong body weight in calculations setting the health goal.

"It has become evident to me that the toxicologists at DHHS don't possess the necessary skill sets to perform their work properly, or they just ignore proper and long-established protocols in the performance of their work," Howard wrote.

DHHS spokeswoman Chris Mackey said the agency used the body weight of an infant to calculate safe levels for a baby being bottle-fed formula prepared from drinking water, not the weight of a full-grown adult, which Howard said should have been used.

"This is consistent with generally accepted methodology for establishing health goals," Mackey wrote in an email. "We are confident we are adhering to reasonable processes related to health goals. The calculation involved close consultation with the EPA and other experts."

References to the health goals were removed from legislation, something Howard requested.

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This bill initially was announced as identical legislation from both House and Senate sponsors involved in off-session negotiations on GenX and water quality.

Perhaps the biggest change between then and when the bill was tacked into the state budget came in a section laying out what the state will test for in public waters. Howard called this section "possibly the most troubling provision of the bill" in his letter to lawmakers.

Both versions call on the North Carolina Policy Collaboratory to spearhead testing at the intakes for all public water supplies. The initial version, in House Bill 972 and Senate Bill 724, called for, "targeted and nontargeted analysis of emerging contaminants" and listed a minimum testing range that included a number of industrial chemicals scientists have flagged as likely to be in local water supplies.

The final version removed those references, focusing the testing only on PFAS. The tests would still be statewide, which supporters said would still make North Carolina a national leader in water testing.

Casting the wider net on testing would have put North Carolina too far out of step with other states, Howard said, and scared people unnecessarily, given a lack of consensus on health effects and the likelihood that industrial chemicals exist in many water supplies due to the ubiquitous nature of these modern compounds.

Howard acknowledged that there's little incentive to study these compounds without first confirming that they're in the water, but he said that should be done via national policy.

"In the absence of a federal program, no state should take this on alone," he said.

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The Manufacturers Alliance also won changes to the new protocol for documenting the chemicals a manufacturer releases into the environment.

Howard told legislators that his members are willing to disclose the chemicals they use, but the original language asked for an unrealistic level of detail, requiring analysis no commercial laboratory in the United States is equipped to do.

"Surely the General Assembly does not intend to require disclosure of chemicals in (discharge) applications that can only be accomplished at the university research level," Howard wrote. "NO other state places this burden on applicants, and neither does the EPA."

The initial sponsors of this bill, dubbed the Water Safety Act, had differing opinions on whether their bill was improved or degraded as it left their hands and became part of House/Senate leadership negotiations over the broader budget.

All Sen. Michael Lee, R-New Hanover, would say was, "I was very happy with the bill as I introduced it."

Rep. Ted Davis, also R-New Hanover, said he was happier with the final version. One reason: DEQ will get more funding under this version than the original, something that has been a sticking point between the House and the Senate, as well as with Gov. Roy Cooper's administration.

The funding will still be lower than what Cooper and DEQ requested, though.

State Rep. Holly Grange, R-New Hanover, called the final language "a start." She and Davis both said lawmakers can build on the legislation in future sessions.

"It was all compromise," Grange said. "It's not ideal."

McGrady, R-Henderson, said legislators heard from many people that "the bill as introduced had serious flaws and unintended consequences."

"Various groups -- not just NCMA -- delivered that message effectively," McGrady said in an email. "One week, I was being told I needed to get onboard and support the bill. The following week, I was being asked to help fix problems with the bill."

Howard acknowledged that his group got every change it wanted in the bill, but he said that's because those changes were clearly needed.

"I'm tickled that it was complete, but it needed to be," Howard said. "I think the membership realized that once they realized what the implications were. ... I would almost guarantee you it's not just because we asked for it."