Chemours may need to reimburse southeastern North Carolina utilities for hundreds of millions of dollars in filtration technology, under legislation the N.C. House of Representatives passed nearly unanimously Wednesday.
House Bill 569 was a very late addition to Wednesday's House calendar, not appearing until shortly before 7 p.m.
"No longer will the ratepayers be responsible for doing something that a polluter caused. It will be the polluter that's responsible," Rep. Ted Davis, a Wilmington Republican, said minutes later on the House floor.
This marks the third time Davis has introduced an effort to force Chemours to pay for the industrial-scale filters utilities in Wilmington and surrounding areas have installed since learning about high levels of per- and polyfluoroalkyl substances in 2017.
For decades, Chemours and predecessor DuPont had discharged GenX and other chemicals into the Cape Fear River from the Fayetteville Works plant near the Cumberland-Bladen county line. Downstream utilities draw their drinking water from the river, and the compounds evade standard water treatment technology.
In the years since, Brunswick County has spent $158.7 million to build a reverse osmosis water treatment plant and the Wilmington-area Cape Fear Public Utility Authority has spent $82.8 million building and maintaining eight granular activated carbon filters.
Both utilities face ongoing costs because their filters need to be swapped out regularly as contaminants build up on them.
"I just thank goodness that the bill did pass. It's taken me five years to do that, but I think and hope that the ratepayers for the public utilities in New Hanover, Brunswick and Cumberland would be very pleased that this bill did pass the House," Davis said while leaving the floor Wednesday.
Davis' bill would let utilities receive payback for any cost incurred since 2017. That's the year the Wilmington StarNews first reported on a N.C. State study that identified the contamination in the Cape Fear River, as well as its source.
The bill said reimbursements could be passed along to utility customers as refunds, bill credits or reimbursements in future rates.
"I think the fact that it's passed through the House is a big deal. It's hard to even fathom a win these days because we keep coming against such strong opposition, but this was really great news," Dana Sargent, the executive director of Wilmington-based environmental nonprofit Cape Fear River Watch, told NC Newsroom.
Limiting the bill's scope
Davis has made several tweaks to boost the bill's chances, including by limiting how much power it would give the N.C. Department of Environmental Quality.
This year's version hinges DEQ's ability to order payments from a PFAS manufacturer entirely on federal regulations.
DEQ could only direct a company to pay if it is found to be causing PFAS levels higher than maximum contaminant levels established by the U.S. Environmental Protection Agency.
Last year, former DEQ Secretary and then-EPA Administrator Michael Regan visited Fayetteville to announce drinking water standards for five individual PFAS and a mixture of three of those plus one additional chemical.
That list included HFPO-DA, a compound that is part of Chemours' "GenX" technology. The chemical is only manufactured at Fayetteville Works and was found in Wilmington-area drinking water.
The EPA's regulations remain on course to be in place by 2029, but 19 industry trade groups including the American Chemistry Council and U.S. Chamber of Commerce sent EPA Administrator Lee Zeldin a letter in February asking him to ensure drinking water standards are "set at workable levels."
Another set of changes came Wednesday evening, just before the bill went to a vote. Rep. Brenden Jones, a Columbus County Republican, introduced an amendment further narrowing the language to clarify that it only applies to Chemours.
Jones' amendment said a PFAS manufacturer could only be directed to provide reimbursement for filtration technology if it directly discharged the chemicals into source water and if it had entered a consent order to limit contamination.
The amendment also said public utilities must have spent at least $50 million to address PFAS contamination to be eligible for reimbursement.
Chemours finalized a consent order with the N.C. Department of Environmental Quality and Cape Fear River Watch in 2019. Under that agreement, Chemours was required to take actions like installing a thermal oxidizer to prevent PFAS emissions and sample nearby private wells for contamination, providing replacement drinking water where high levels were detected.
The chemical company has continued to oppose the legislation.
During an April committee meeting, Jeff Fritz, a Chemours lobbyist, said the bill would force the company to pay to remove chemicals that are coming from other upstream sources. Fritz claimed Chemours' actions since its discharges were made public in 2017 have resulted in a sharp decrease in PFAS coming from Fayetteville Works.
Only public utilities would be eligible to recoup their PFAS removal expenses under the legislation. In the Wilmington area, for example, private utility Aqua North Carolina serves about 5,000 accounts and Carolina Water Service has about 3,800 customers, WHQR previously reported.
Sargent of Cape Fear River Watch acknowledged the bill's narrow focus means advocates want to see more action taken to address PFAS in North Carolina, including for customers of those smaller private utilities.
"The weakening of it was unfortunate, but it is still a step in the right direction and unfortunately these days every step in the right direction is a win," Sargent said.
Third time's the charm?
In an abnormal step, Speaker of the House Destin Hall moved the bill to the full House without it being heard in the chamber's Rules Committee. Typically, every bill must clear that committee before reaching the House floor.
House Bill 569 had been approved by the House Agriculture and Environment Committee and the Davis-chaired House Judiciary 1 Committee. But it had not been discussed in Rules.
The House voted for it by a margin of 104 to 3, with five Republicans not voting on the matter including Hall and Bladen County Representative William Brisson.
After Wednesday evening's session, Hall said he believes Davis' third effort at the polluter pays legislation passed where previous attempts have failed because it clearly only addresses Chemours' contamination.
"The bill today was really narrowly tailored to deal with a situation in Southeastern North Carolina and in particular New Hanover County and those around it," said Hall, a Republican from Lenoir.
Hall also made a point of crediting Davis for his passion about the legislation.
"He worked it hard for a long time, and he got it across the finish line in the House," Hall said.
The bill will now be sent to the Senate. Both Davis and Hall said they haven't discussed the legislation with their counterparts there.
Davis, though, said he hopes the Southeastern North Carolina delegation that includes powerful Republican lawmakers like Senate Majority Leader Michael Lee of Wilmington and Senate Rules Chairman Bill Rabon of Brunswick County will be supportive.
"I'll be glad to speak to any of them that want to speak to me about it, but I would hope that they will have enough common sense to realize that they need to protect the people where they represent that are ratepayers to these utilities," Davis said.
