Environmental Management Commission defies EPA over state’s polluted waters

Environmental Management Commission defies EPA over state’s polluted waters

- in Environment, Featured Articles

The best way to experience the swamps and rivers of Brunswick County is by kayak. Enter the wide Cape Fear River via Lilliput Creek – you might see the Fort Fisher Ferry pass in the distance — and head north to Snow Cut. From there, if you keep paddling, you will eventually arrive at Wrightsville Beach and the Atlantic Ocean.

Unfortunately, this 12-square mile segment of the Cape Fear is also contaminated with arsenic and nickel, both heavy metals. The levels are high enough that the EPA has overruled state officials and placed this part of the river on a federal inventory of impaired waters, also known as a “303(d) list.”

This segment is just one of 72 waterbody-pollutant combinations statewide that the EPA has listed, or in some cases, re-listed, over the objections of the Environmental Management Commission and the NC Department of Environmental Quality. (The term “combination” is used because a segment of waterbody can be listed for more than one pollutant.)

At the heart of this conflict is a scientific disagreement between the EMC, in particular, and the EPA over the appropriate way to determine if part of a waterbody is polluted, and if so, to what extent. More than three years ago, the EMC broke precedent, and as part of its rule-making, changed the water sampling methodology.

Robin Smith, who was DEQ’s Assistant Secretary for Environment for 12 years, said that by law, the EMC has the responsibility to update the 303(d) list. However, until the change, the EMC delegated that duty to the DEQ’s water quality staff. “EMC didn’t even exercise approval or control over what was submitted to the EPA,” said Smith, who retired from the agency in 2012.

Steve Tedder is a water pollution biologist and 37-year employee of DEQ, including Water Quality Section Chief. He retired in 2011, the same year he was appointed to the EMC by Senate Pro Tempore Phil Berger.

In 2013, Tedder led the change in sampling methods. “It’s been used in environmental sciences programs for 25 years,” Tedder told NCPW of the state’s methodology. “It’s very solid, very sound.”

But since the EMC took control over the method, the EPA has scolded the state for the change in both the 2014 and 2016 listing cycles. States propose their 303d lists every two years.

The EPA again found that the state’s methodology was not defensible for assessment of toxic pollutants,” reads a Dec. 8, 2016, letter from the EPA to Jay Zimmerman, DEQ’s director of the Water Resources Division.

The letter goes on to criticize the state’s methodology for using certain quality standards to delist waterways, saying they were not “reasonable” or “statistically sound” procedures. The state “failed to demonstrate good cause” in delisting the waters, the EPA said.

The agency also includes 72 waterbody-pollutant combinations that should be listed. The state erroneously removed them, the EPA said, based on a “failure to provide a reasonable method” to assess toxic pollutants, and a “failure to properly evaluate all existing and readily available data.”

The EMC plans to vote today on a rebuttal letter to EPA, calling the disapprovals “discouraging.” The EMC has encouraged DEQ to submit its own response.

An unnecessary listing, the EMC says in its six-page letter, is an example of EPA “intruding on responsibilities reserved to the states. However, the EPA is only exercising its authority. According to the Clean Water Act, the states assemble their lists, but the EPA can approve or disapprove them.

Financial and business interests could suffer from unnecessary listings, the letter goes on to say. If a waterbody is declared impaired, it can be “interpreted by the public to question whether it is safe to swim or fish … It hinders local governments … perhaps to even attract people or businesses to the area.”

But the ramifications of not listing an impaired water are more disturbing: lakes, such as Jordan, never recover from contamination; fish and other aquatic life die or move on, which can weaken or destroy ecosystems; and the public health is jeopardized when drinking water sources are polluted.

In its extensive public comments to the DEQ, the Southern Environmental Law Center demanded the EPA’s methodology, not DEQ’s, be used to best protect the state’s natural resources. The law firm described the state’s recalcitrance as “a remarkable show of defiance.”

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Hardys Mill Pond in Guilford County is a destination for fishers looking to catch perch, smallmouth bass and rainbow trout. But the pond is also on the 303(d) list for “biological integrity.” Translated, that means people have caused the ecosystem to deteriorate.

Hardys Mill Pond is one of 1,231 waterbody-pollutant combinations on North Carolina’s draft 303d list — the portion that EPA has approved. Without the EPA’s 303d program, none of these 1,231 waters might ever have a chance to be redeemed.

And there is that chance. There are 44 success stories — notably Little Alamance Creek near Burlington— that have come off the recent list, also with EPA’s OK.

Part of the Clean Water Act, the 303d regulations identify waters that are too polluted or degraded to meet water quality standards. The EPA requires states to list those waters, the types of pollution, and then, if warranted by the data, set a benchmark known as a TMDL. Short for Total Maximum Daily Load, the TMDL is maximum amount of a pollutant a waterbody can receive each day and still meet quality standards. Using this benchmark, regulators can then work to reduce the pollutants.

Pollutants can include toxic metals, like arsenic and cadmium. They also include non-toxic ones, such as turbidity (the cloudiness of the water), chlorophyll a (an indicator of too much nitrogen or phosphorus in the water, which contributes to algae growth), and pH, (the acidity or alkalinity of the water).

Yet states also must disclose their methodology in coming up with their list. They must do the same to take a waterway off the list. That’s where the EPA and the state diverge.

The EPA and environmental advocates favor the 1-in-3 exceedance method for toxic pollutants. That means that if more than one sample from a waterbody exceeds the threshold for a toxic in three years, regardless of how much, it goes on the list.

Instead, the EMC and DEQ leadership support what’s known as the 10 percent/90 percent method. If 10 percent of samples exceed the standard, it goes on the list. But the EMC adds another requirement — a 90 percent statistical confidence — to list the waterbody.

There are significant consequences to this change. It requires a greater number of elevated samples to prove a waterbody should be the list. For example, if there are 36 samples, four exceedances would be needed to be listed under the 10 percent rule; with the addition of a 90 percent confidence level, there would need to be seven.

Tedder says this method looks at the health of a waterbody holistically. “The EPA uses the worst of anything that occurs.”

But the worst-case scenarios have serious impacts. Waterways can take years, even decades, to recover from even one major spill. Persistent contamination allows polluters to continue discharging into waterways possibly without penalty.

Grady McCallie, policy director for the North Carolina Conservation Network, supports a rigorous listing program that the EPA uses. Using the EMC’s protocol, “if we have a violation but it hasn’t killed off benthic life [microscopic organisms that live in water], we let it slide,” McCallie said. “But the whole point is too prevent the degradation.”

Environmental advocates want fewer delistings. In his lengthy comments, Will Scott, the Yadkin Riverkeeper, asked DEQ to put 15 segments back on the list for copper contamination; several of these were re-listed by the EPA.

Comment on the EPA’s list
The EPA is accepting public comments on its decision to add the 72 waterbody-pollutant combinations to the state’s 303d list. Deadline is Feb. 17. Submit comments via email to Marion Hopkins of the EPA’s Assessment, Listing and TMDL Section, Water Protection Division: hopkins.marion@epa.gov or via postal mail, US EPA, Atlanta Federal Center, 61 Forsyth St. SW, Atlanta, Ga. 30303.

The full list and the recommended waterways to be listed and delisted can be found on the DEQ website.

“We’re pleased that EPA has protected waters across the state that the outgoing administration would have left open to additional pollution rather than trying to clean up,” Scott told NCPW.

In contrast, business, local government and industry groups, which wanted more input into the listing process, are actually asking DEQ for even more delistings. Several city public works officials — Greensboro, Durham, Fayetteville, among others — are basing their requests on the respective cities’ own methods and sampling. Part of their motivation to keep waters off the list is to avoid the expense of upgrading their treatment methods for wastewater discharges.

McCallie said he believes Tedder is not politically or even fiscally motivated in changing the methodology. “He’s a scientist. He has his own vision. He genuinely believes he’s protecting the rivers. We’re just not in the same place.”

The EPA has the final word on the 303d list, which makes the EMC’s protests ultimately moot. “They can overlist if they wish,” Tedder said. “We’ll have to agree to disagree with the EPA.”