Tests Duel in Spring/Well Classification Dispute

Source: 
News & Observer

The difference between springs and wells seems crystal clear: Water has to be pumped from a well, but spring water flows out under its own power.
Things get murky, though, when the well in question belongs to a bottler who also happens to be a legislator's son. Add a half-dozen hydrogeologists with split views, some lawyers, an angry group of certified spring owners who don't want their marketing cachet diluted and a sprinkling of state regulators and the picture gets downright muddy.
According to North Carolina Agriculture Department internal memos and e-mail messages, Rep. Walter Church Sr. sought and got three meetings with top agriculture officials about a well owned by his son's company, Table Rock Springwater Co.
One of those meetings included the department's No. 2 man, Deputy Commissioner Weldon Denny, General Counsel David McLeod, and Dempsey Benton, second in command of the state's Department of Environment and Natural Resources.
Twice, starting in 1999, the state ruled that tests by a hydrogeologist hired by Table Rock didn't show a relationship between the well and a nearby spring, based in part on the lack of an expensive pump test but also on differences in water samples. The U.S. Food and Drug Administration issued a similar opinion.
But in June, agriculture officials gave the well approval for spring water status. They did so without consulting the DENR hydrogeologist they had originally used to check the data. That geologist, Al Slagle, has seen the latest test results and said this week that there still doesn't appear to be a connection between the well and spring.
According to FDA regulations (which the state agriculture department enforces) someone who proves that his well draws from the same source as a nearby spring can put "spring water" on the label. In the booming bottled water industry, that means more profit because the sipping public finds spring water more desirable, even if there's no meaningful chemical difference.
Agriculture officials said they needed Slagle early in the process but not when they gave the thumbs up to Table Rock. The information provided by Table Rock's consultant was good enough, said Bruce Williams, who heads the department's Food and Drug Protection Division. He, a compliance officer under him, and McLeod talked about the issue and decided that they should approve the request, he said.
The key point was the result from an expensive test that Table Rock had done, where the well is pumped heavily and the spring is monitored for changes. That test, McLeod said, finally proved there was a connection.
"Once they do that, the burden falls on us," McLeod said. "We can't prevent them from calling it spring water unless we can prove it's not."
The state doesn't have the resources to go around proving such things, he said. It must rely on the licensed hydrogeologists hired by the well owners.
Another consideration, he said, is that well owners in many other states aren't held to the same standards as those in North Carolina, which may be unfair to well owners here, given the large amounts of water being brought in from those other states.
Williams said Rep. Church, a Burke County Democrat, hadn't leaned on anyone -- and that he wouldn't have let the legislator's involvement affect him.
"If they were going to throw my [rear] out, well, I've got 37 years with the state, so it wouldn't make a whole lot of difference," Williams said.
Rep. Church said he wasn't trying to influence the decision. He just wanted to ensure that Table Rock got all the information it needed during the complex road to approval, and that the right people were talking. He would have done the same thing for any business in his district that needed help, he said.
"The only thing I wanted them to do was to give this a fair hearing," he said.
He disputed the notion that he had received special attention. Any citizen in the same position could get officials such as Denny, Benton and McLeod to meet with them, he said.
"I'm just a low-paid state employee," Church said. "I wouldn't know Dempsey Benton if I saw him on the street, but I would hope they would afford anyone else the same attention as they afforded me."
Church and his son said Table Rock's consultant was a highly-regarded, licensed professional and there was no reason for the state to listen to Slagle.
Walter Church Sr. said Slagle --who holds the same professional license as Table Rock's consultant --was biased in favor of spring owners because he had done consulting work for them.
Slagle acknowledged that he had done consulting work for the national spring water association, but only on out-of-state jobs. Also, he said, he had given the data used by the state to approve Table Rock's request to two other hydrogeologists --one in Georgia and one among the most respected here --and both agreed that there didn't appear to be a connection between the well and the spring.
He also cited the FDA opinion. In a 2001 letter to an attorney for Table Rock, an FDA official wrote that a hydrogeologist with the U.S. Geological Survey had reviewed the data.
"The fact that ion concentrations in the well water were consistently higher than ion concentrations in the spring waters indicated to the USGS hydrogeologist that the water drawn from the well is not of the same composition as the water that flows naturally to the surface of the earth at the springs," said the letter.
No one disputes the high quality of Table Rock's water. But the 20-member state spring water association is planning to hire yet another hydrogeologist to formally examine the well, the spring and the test data, said Bill Miller, a member of the group and the president of the U.S. Spring Water Association.
If the results don't support the state's decision on Table Rock, the group may appeal to the state and then perhaps take the matter to court, he said.
Miller agreed that his group is trying to protect its market. But if someone has to do little more than drill a well beside their bottling plant, Miller said, his and other spring owners' water will have little or no value.
Looser standards for what is spring water also would be a disservice to consumers, he said.
"I believe in the dictionary definition of a spring," he said. "If you could call rhinestones 'diamonds,', they'd sell."
Walter Church Jr., his consultant and several agriculture department officials said that results from a $12,000 test in which water was pumped from the well and the spring monitored for the effects clearly showed that it met the FDA standards.
Walter Church Jr. said he knew the decision, which cost him about $50,000 to win, wouldn't make the association happy. But he said that he was flabbergasted that anyone would challenge the test data that his hydrogeologist had prepared and which had been approved by the state, which is among the nation's strictest on the issue.
A lawyer with a strong grounding in hydrogeology had also agreed that the well and spring are linked, he noted, as had a second, internationally-respected consultant based in Massachusetts.
Table Rock's consultant, Richard Harmon of Harmon Environmental in Monroe, said he had never doubted that the well water and spring water were the same.
Slagle's views on what makes a proper hydraulic connection were far too nitpicky, he said.
"There is only one aquifer in that area," he said, "and it is all the same water."
The spring water association, Harmon said, was interested in stopping potential competitors, not proper science.
"They're trying to protect a monopoly," he said. "Table Rock has spent a considerable amount of time and money to satisfy the state, and we did."

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