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HomeMy WebLinkAboutDraft September 2024 WQC Meeting Minutes Page 1 of 7 NORTH CAROLINA ENVIRONMENTAL MANAGEMENT COMMISSION WATER QUALITY COMMITTEE September 11, 2024 Meeting Minutes MEETING BRIEF During the September 11, 2024 meeting of the North Carolina Environmental Management Commission’s Water Quality Committee, the Committee: • Heard a brief presentation about the July 1, 2023 – June 30, 2024 Annual Report on Water Supply Watershed Protection, Universal Stormwater Management, and NPDES MS4 Programs, • Approved proceeding to the EMC with Amendments to Tar-Pamlico Wastewater Discharge Requirements Rule 15A NCAC 02B .0733, • Approved the motion that “The EMC Water Quality Committee does not accept nor take any action related to the RIA benefits category human health benefits also cited as human health in Table 20 or in Appendix F and the section entitled estimated exposure to food containing PFAS in North Carolina until members of the EMC meet with FDA and receive a written response that the information related to food in the US and North Carolina is accurate,” and • Directed DEQ to propose a draft rule and draft RIA to establish monitoring for every industrial and municipal NPDES permit and require PFAS source reduction plans as part of every industrial and SIU municipal pre-treatment program. WQC MEMBERS IN ATTENDANCE Steve Keen, Chair EMC Chair John Solomon, Ex-Officio Michael Ellison, Vice-Chair Joe Reardon Tim Baumgartner Kevin Tweedy Marion Deerhake Bill Yarborough OTHERS IN ATTENDANCE EMC Commissioner Yvonne Bailey EMC Commissioner Charlie Carter EMC Commissioner Christopher Duggan Ellie Young, EMC Counsel Sushma Masemore, DEQ Assistant Secretary Richard Rogers, DWR Director Julie Grzyb, DWR Deputy Director Karen Higgins, DWR Stephanie Bolyard, DEQ Michael Lawyer, DWR John Huisman, DWR Adam Waters, Tar-Pamlico Basin Association Executive Director Page 2 of 7 TABLE OF ACRONYMS CFR Code of Federal Regulations CHPP Coastal Habitat Protection Plan CWA Clean Water Act DMS NC Division of Mitigation Services DWR or Division NC Division of Water Resources EPA United States Environmental Protection Agency EMC or Commission NC Environmental Management Commission MCL maximum contaminant level NC North Carolina NCAC North Carolina Administrative Code NCGA North Carolina General Assembly NCGS North Carolina General Statutes NPDES National Pollutant Discharge Elimination System OAH Office of Administrative Hearings OSBM Office of State Budget and Management POTW Publicly owned treatment works, a sewage treatment plant owned and usually operated by a government agency. PFAS per- and polyfluoroalkyl substances, a group of chemicals RIA Regulatory Impact Analysis RRC Rules Review Commission SCM stormwater control measures SIU significant industrial user SNAP Stormwater Nitrogen and Phosphorus Tool SOC Special (Court) Order by Consent US United States WQC or Committee NC EMC Water Quality Committee WWTP wastewater treatment plant Page 3 of 7 I. Preliminary Matters 1. Meeting called to order and notice provided of NCGS 138A-15 regarding conflict of interest: Chair Keen called the WQC meeting to order at 2:00pm and inquired about any known conflicts of interest. No conflicts were announced. 2. Approval of July 10, 2024 meeting minutes: The Committee approved the draft July 10, 2024 meeting minutes without discussion. II. Items 1. Information - July 1, 2023 – June 30, 2024 Annual Report on Water Supply Watershed Protection, Universal Stormwater Management, and NPDES MS4 Programs (Michael Lawyer, DEMLR) Michael Lawyer, DEMLR, began his presentation with an overview of the Water Supply Watershed Protection Program (WSWPP). He also briefly discussed the Universal Stormwater Management Program (USMP) and the NPDES MS4 Program. He noted that the WQC members have received a copy of the Annual Report. Commissioner Tweedy asked about the Watershed Coordinator position that is open. Mr. Lawyer said it has been vacant for two months. He said he has conducted interviews and made a selection and is awaiting HR approval to extend an offer. 2. Action - Request Approval to Proceed to the EMC with Amendments to Tar-Pamlico Wastewater Discharge Requirements Rule 15A NCAC 02B .0733 (John Huisman, DWR) John Huisman, DWR, began his presentation with an overview of the Tar-Pamlico Nutrient Strategy Agreement (Agreement) that is currently in place with the Tar-Pamlico Basin Association (TPBA), noting that the overall goal is a 30% decrease in nitrogen load and no increase in phosphorous load relative to the 1991 baseline. He presented a map of the basin showing the main wastewater dischargers. He stated that DWR wants to turn the requirements of the Agreement into a rule for several reasons. The Agreement is coming up for renewal in 2025, and DWR has been under increased pressure to ensure that all protections that fit the definition of a rule under the APA are in fact written into a rule. Page 4 of 7 Mr. Huisman presented an overview of what the current rule requires, noting that it only applies to new or expanding facilities. He said that the proposal is to take the existing Agreement and put it directly into a rule. He said that the RIA indicates that there will be no new costs or substantial economic impact, since the rule would be the same as the Agreement currently in place. He provided a timeline of the process with hopeful EMC adoption in May 2025. Vice-Chair Ellison asked if the Pfiesteria outbreak was the original impetus for agreement, and Mr. Huisman answered in the affirmative. He also asked if there any projections for future output changes. Mr. Huisman said there haven’t been projections, but that once the TPBA members hit 80% of their caps, they are required to do evaluations and projections for improvements they can make. Commissioner Tweedy asked how the nitrogen and phosphorous caps were established. Mr. Huisman said they were established based on the modeling in the early 1990s that was used to establish the TMDL and the 1991 discharge levels. He noted that there hasn’t been additional modeling or updates since then. Adam Waters, TPBA Executive Director, noted that the benefit of being a part of the Association is that members aren’t required to meet their individual allocation unless the Association as a whole is exceeding. Also, membership allows for resources regarding support and experience, especially for the smaller members. Commissioner Ellison moved to proceed to the full EMC with public notice and hearing for the proposed amendments to 15A NCAC 02B .0733. Commissioner Deerhake seconded the motion, and it passed without discussion. 3. Action: Continuing with PFAS Surface Water Quality Rules Development Process... Chair Keen began this item by providing a brief procedural history. DWR Director Rogers gave an overview of the developments of PFAS surface water quality standards, noting that DEQ staff has been working for more than two years on this process. Director Rogers began his presentation with an overview of the comments and questions DEQ received from the WQC and EMC Chair during the July 10 meeting and in writing in August. He noted that the three main categories of comments were regarding implementation, water quality standards, and benefits categories. He asked that the WQC reconsider its request to remove some benefits from the RIA that these rules would provide, since the benefits are valid, justified, and quantifiable. He also noted Page 5 of 7 that the OSBM-approved RIA and the rules are both drafts and that DWR is proposing to further revise the RIA after public comments are received and considered. Commissioner Baumgartner, who Chair Keen designated as the questions and comments manager on behalf of the WQC, noted that the WQC has been able to review the RIA only since June. He said the WQC has received several different versions of the RIA and it would be helpful to have a cover sheet noting the version. DWR Director Rogers noted that the draft OSBM-approved RIA is included as attachment D. He also clarified that all these documents are drafts until they go through the public hearing process and are officially approved by the EMC. He also said there have been no revisions to the draft since DWR received the Committee’s comments and questions. DWR staff, WQC members, and EMC Chair Solomon discussed the benefits this rule would provide to surface waters and what specific benefits surface water provides (drinking water, swimming, and fishing). Commissioner Reardon asked if consuming food was a significant source of human exposure to PFAS, and Stephanie Bolyard, DEQ, answered in the affirmative. He asked if we have overstated the claim that 22% of PFAS exposure comes from food, citing some FDA research that showed a 3% exposure rate. Ms. Bolyard further explained her reasoning and methodology, noting that DEQ is talking about a 20% exposure to normalize on a mass basis for a health purpose. Commissioner Reardon asked about the specific levels of PFAS that are being found on farms, noting that USDA and FDA haven’t established investigatory levels and that not all PFAS are the same. He stated that we should have a national investigative level before we fully test every farm in America. Ms. Bolyard cited some real-world examples of situations where farms that contained PFAS were able to change what they did based on some investigation to be able to continue selling agricultural products. Several WQC Commissioners also expressed concern about a report that a farmer was “unable” to sell his food because it was contaminated with PFAS. They noted that the farmer chose not to sell the food and that he could have sold the food legally had he chose to. They were also concerned that DEQ was making assertions without sufficient proof about the amount of food that North Carolinians ingest that are impacted by PFAS in surface water. Specifically, they cited the statement that “Approximately 25% of the food North Carolinians ingest was projected to be food impacted by PFAS through surface water.” DEQ Assistant Secretary Sushma Masemore explained that 86% of the water used in agricultural practices, including irrigation and raising animals, is extracted from surface waters. So, when surface waters are contaminated with PFAS, those PFAS are being consumed by animals and crops. So, she said, the translation is occurring to answer the question of how do you account for that avoided cost to that exposure. Page 6 of 7 Commissioner Deerhake expressed concern that this meeting was too short to address the WQC members’ questions and that if it is ended at 4, then no progress will be made. Chair Keen said that the RIA is ultimately an EMC product, not a DEQ product, and that the RIA needs to be properly vetted prior to arrival. Commissioner Deerhake disagreed, citing prior precedent, and noted that the time to consider these comments is after the public comment process, not before. She stated her belief that certain EMC members are overreaching the EMC’s duty and leaving the public with the impression that they are controlling the RIA process to achieve the outcome that they and some stakeholders desire rather than the outcome that an objective financial analysis should produce. She also said that she emailed her positive comments about the RIA to Chair Keen on August 6 but that those were not included in the comments the WQC send to DWR. Commissioner Reardon made the following motion: The EMC Water Quality Committee does not accept nor take any action related to the RIA benefits category human health benefits also cited as human health in Table 20 or in Appendix F and the section entitled estimated exposure to food containing PFAS in North Carolina until members of the EMC meet with FDA and receive a written response that the information related to food in the US and North Carolina is accurate. Commissioner Baumgartner seconded that motion. Vice-Chair Ellison said its important to get the RIA right before it goes to public comment. Commissioner Deerhake said that outside parties are influencing the content of the RIA and communicating with the EMC even though we have not entered the public comment phase. Commissioner Baumgartner rejected the assertion that the EMC is being guided by people on the outside. Commissioner Tweedy questioned the possibility of establishing a WQC working group outside of these meetings since these discussions take a long time and it would be years before action is taken at the current pace. Chair Keen stated that he would not establish such a group. Commissioner Reardon rejected the assertion that any outside party influenced his research or thinking. Vice-Chair Ellison said he’s received around 200 phone calls and emails from outside people urging rapid action on PFAS based on these documents. He also said his questions are his own and that the RIA is “severely flawed” and is in many cases “predicated on scientific fallacies.” The motion carried after a vote. Page 7 of 7 A discussion followed where Vice-Chair Ellison and EMC Chair Solomon indicated concern that DEQ’s responses about wells didn’t reference North Carolina activities enough. Stephanie Bolyard, DEQ, responded, noting that scientific principles apply the same in North Carolina as elsewhere. There was continued discussion about wells with Vice Chair Ellison expressing concerns with DEQ’s scientific reasoning and Ms. Bolyard explaining that the RIA was DEQ’s best effort at estimating benefits. A further discussion ensued about the interaction between ground and surface water, property values, and the sufficiency of DEQ’s research. WQC members also stated that they’d like to get pass this impasse between the Department and WQC. EMC Chair Solomon and other WQC members discussed several alternatives on how the EMC can proceed without endless delays, with EMC Chair Solomon stating that source protection plans are the best way to proceed. DWR Deputy Director Julie Grzyb stated that DWR could do a minimization-type plan but DWR would need measurable value that they’re going to a goal. She said you can’t assess costs unless you have a measurable goal and defined timeframes. Commissioner Baumgartner moved that DEQ propose a draft rule and draft RIA to establish monitoring for every industrial and municipal NPDES permit and require PFAS source reduction plans as part of every industrial and SIU municipal pre-treatment program. Vice-Chair Ellison seconded the motion, and a discussion followed. DEQ Assistant Secretary Sushma Masemore said that the Department will need specific guidance to require source reduction and associated plans and some direction to produce a credible RIA and rule text. The motion carried unanimously. III. Director’s Remarks DWR Director Richard Rogers stated that DWR is working on the narrative standard report, and that comments have been received. He said that the triennial review is still a work in progress and that it was delayed a bit awaiting a report from the Collaboratory to be included in the RIA. IV. Conclusion The meeting adjourned at approximately 5pm with Chair Keen thanking everyone for their work and thanking members of the public who viewed the meeting.