NC environmental groups ask EPA to take water permitting power away from DEQ

North Carolina environmental groups are asking the U.S. Environmental Protection Agency to take water permitting regulation away from the N.C. Department of Environmental Quality, arguing legislative budget cuts and tweaks to boards and commissions have rendered the state agency unable to protect water quality.

The EPA typically delegates to state agencies the power to write National Pollutant Discharge Elimination System permits. These permits are used to regulate pollution that is discharged directly into waterways by industrial plants, wastewater treatment plants and similar sources.

In a 65-page petition filed Wednesday, the Southern Environmental Law Center asked the EPA to take that authority back from North Carolina. The complaint comes as years-long efforts to regulate contaminants like 1,4-dioxane and per- and polyfluoroalkyl substances (PFAS) have stalled at commissions that are either entirely or largely controlled by legislative Republicans.

“North Carolina families depend on DEQ to control harmful pollution released into the State’s rivers, creeks and streams. By unlawfully stripping the agency of its ability to control this pollution, the legislature’s actions not only violate the Clean Water Act and the (memorandum of agreement) — they threaten hundreds of thousands of North Carolinians who fish, swim, play in and get their drinking water from North Carolina waters,” the petition states.

Republicans hold a supermajority in the General Assembly, meaning they are able to override vetos of Gov. Roy Cooper, a Democrat, by voting along party lines.

The petition cites four actions that environmental groups argue have hindered DEQ’s efforts to regulate water quality. Those include:

• Legislature-controlled commissions stymieing DEQ’s efforts to regulate contaminants like PFAS and 1,4-dioxane. The General Assembly controls all appointments to the Rules Review Commission, and in 2023 shifted two Environmental Management Commission appointments to Agriculture Commissioner Steve Troxler in order to take the majority away from Cooper.
• A 2011 law that took final say over contested permits from the state environmental agency and gave it to the Office of Administrative Hearings, a move the petition argues is in violation of the EPA’s agreement with North Carolina. The Office of Administrative Hearings is now controlled by Donald van der Vaart, a McCrory-era DEQ secretary who is widely seen as anti-regulation.
• Legislative involvement with the specific conditions of certain permits, a move the petition says usurps DEQ’s role as the delegated permit writer.
• Ongoing funding issues that have left DEQ’s salaries uncompetitive with the private market and even some other state agencies, sapping the agency of the ability to write permits that are as protective as they could be and resulting in permitting backlogs that leave outdated permits in place. The petition notes in 2022, 833 employees at the N.C. Department of Transportation received higher salaries than the director of the N.C. Division of Water Resources.

“DEQ operates the NPDES program in compliance with the Clean Water Act as delegated to the State by EPA. Our staff is dedicated to carrying out our delegated authority in a manner that protects the resources and residents of North Carolina,” Sharon Martin, a DEQ spokeswoman, wrote in an email.

The SELC is representing groups including Cape Fear River Watch, Environmental Justice Community Action Network, Haw River Assembly and MountainTrue.

“It’s just been going on for years and we finally feel that it is our duty to try to get some help for the citizens of North Carolina to keep their drinking water safe and clean,” Mary Maclean Asbill, the director of SELC’s North Carolina office, told The News & Observer.

Asbill pointed to recent EMC commission meetings as a turning point. Those meetings have featured efforts by DEQ leadership to move regulations for some PFAS forward, while commission members have asked long lists of questions and argued they have not received fiscal reports in time to fully understand the information.

The petition is lodged with the EPA, which could either grant the request, dismiss it or engage in a sort of mediation process.

“We want to have this petition heard before the current Environmental Protection Agency that is honoring the Clean Water Act,” Asbill said.

The EPA’s sitting administrator is Michael Regan, a North Carolina native who served as DEQ secretary from 2017 until early 2021.

DEQ stance on PFAS regulation

Under Regan, the EPA has advanced a number of regulations for PFAS, compounds that are prized for their durability and water resistance but that have been linked to a number of human health impacts depending on the specific compound.

During July’s EMC Water Quality Committee meeting, Sushma Masemore, the agency’s assistant secretary for the environment, said North Carolina’s Clean Water Act statute requires DEQ to regulate when it knows toxic pollutants are present and then when they’re found in toxic amounts.

“When those two questions are answered, then we are obligated under the delegated authority to take action under the clean water act to propose methods for reducing the discharge of those pollutants,” Masemore said.

Bill Lane, DEQ’s general counsel, then described North Carolina’s authority as “a method of cooperative federalism,” with the federal government setting up programs like the Clean Air Act and Clean Water Act establishing programs that are then implemented and enforced by states.

“Eventually EPA has the ability to call in states to see how they are doing with their state Clean Water Act programs and if they are not performing sufficiently to address what EPA considers a priority, then the federal agency can pursue withdrawal of approval of that state program over time,” Lane said.

PFAS is clearly a priority to the current EPA administration, Lane added, and DEQ officials believe their proposals are in line with federal plans.

Shortly after hearing those comments, the Water Quality Committee voted to postpone action on surface water standards until September at the earliest.

This is a developing story and will be updated.

This story was produced with financial support from the Hartfield Foundation and Green South Foundation, in partnership with Journalism Funding Partners, as part of an independent journalism fellowship program. The N&O maintains full editorial control of the work. If you would like to help support local journalism, please consider signing up for a digital subscription, which you can do here .