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Quashing the rumors: The "Hardison Amendment" can't prevent all new regulations

Foam on the Cape Fear
Kelly Kenoyer
Foam builds up on Shark Tooth Island in the Cape Fear River. Testing of similar foam on Brunswick County Beaches came back with unusually high levels of PFAS contamination, according to Clean Cape Fear.

When it comes to PFAS regulation in North Carolina, regulators and legislators often point to the Hardison Amendment as a major roadblock. But the power of that obstruction is often overblown.

The Hardison Amendment has long been a boogieman for environmentalists who wish to see more regulatory action on pollution, including chemicals like PFAS. It came from a legislator named Harold Hardison in the 1970s, and it essentially stopped the state from adopting stricter standards than the federal government.

But once president Ronald Reagan took office and started slashing regulations, the tides changed. That’s according to Ryke Longest, a professor of environmental law at Duke University.

"The legislature in the 1980s and 90s began to see the hardest amendment with disfavor and eliminated the Hardison amendment,” Longest said.

Nowadays, the “Hardison Amendment” is the nickname people use for laws that passed in 2010, during another wave of deregulation.

“It's not the same language as the first time around, there has to actually be an EPA rule on the subject matter," Longest said. "If you don't have an EPA standard in place, North Carolina is allowed under this new version to have a standard.”

That means emerging contaminants like PFAS can get state-level regulations, because the EPA hasn’t acted to address these contaminants yet.

Still, the Hardison amendment has been invoked frequently by those opposing regulations — Longest describes it as being used as quote, “a talisman to ward off new regulation” — even though it doesn’t have that kind of legal power when it comes to completely unregulated chemicals.

For an in-depth look at PFAS in the Cape Fear region, tune in to The Newsroom on Friday, March 25 at noon — or look for the latest episode wherever you get your podcasts.

Kelly Kenoyer is an Oregonian transplant new to the East Coast. She attended University of Oregon’s School of Journalism as an undergraduate, and later received a Master’s in Journalism from University of Missouri- Columbia. Contact her on Twitter @Kelly_Kenoyer or by email: KKenoyer@whqr.org.