Top NC environmental official disputes EPA allegation

North Carolina’s environmental regulators have fired back at the U.S. Environmental Protection Agency for its recent allegation that the state may be illegally preventing citizens from challenging state permits issued to industrial polluters.

In a letter sent this week to Heather McTeer Toney, the EPA’s Regional Administrator in Atlanta, the N.C. Department of Environmental Quality accused the EPA of misunderstanding North Carolina laws and misconstruing the facts.

“Frankly, I was surprised by the letter,” DEQ Secretary Donald van der Vaart wrote. “It is not clear to me, whether your concern is based on misrepresentations of the facts of these cases, an unfamiliarity with the facts, a misinterpretation of the law and rules, or some other basis.”

Under Republican leadership, DEQ has been an increasingly vocal critic of the EPA, both in public statements and legal proceedings. The biggest ongoing dispute between the two agencies is over the EPA’s Clean Power Plan, which DEQ is planning to challenge in court and has repeatedly denounced as a federal takeover of the state’s power generating system.

In October, the EPA warned the state that it could lose the authority to regulate industrial air pollution and water pollution if citizens aren’t granted the right to challenge industrial permits. The EPA said that North Carolina may not be meeting minimum federal requirements on protecting residents and the environment.

Both cases in question are being litigated by the Southern Environmental Law Center; one involves a proposed cement plant near Wilmington, the other a limestone quarry on Blounts Creek near Vanceboro.

Environmental groups have unsuccessfully tried to get a court to review permits the state issued to Carolinas Cement Co. to build the cement plant, which would emit more than 5,000 tons of particulates, mercury and other pollutants annually. Their last request was filed to the N.C. Court of Appeals, after Wake County Superior Court Judge Bryan Collins rejected their arguments.

In the quarry case, Martin Marietta Materials received a permit to discharge up to 12 million gallons of mine waste daily into Blounts Creek, which empties into the Pamlico River. A Beaufort County Superior Court judge agreed with the environmental groups and sent the matter back to Administrative Law Judge Phil Berger Jr. for a second review.

SELC lawyer Derb Carter said he was struck by the tone of van der Vaart’s letter to the EPA.

“That letter is dripping with DEQ’s contempt for the EPA,” Carter said.

Van der vaart’s 8-page response to the EPA’s 2-page letter is highly technical, and reviews the history of North Carolina’s Administrative Procedures Act, as well as the two cases in question. In the end, Van der Vaart reprimands the EPA for its own policies.

“North Carolina gives its citizens easier access to judicial review when compared to the hurdles in the federal process a citizen must overcome to challenge an air or water permit,” the state environmental secretary wrote. “NCDEQ finds your agency’s restrictions on citizens’ access, specifically in cases that involve environmental justice concerns, to be troublesome.”

The EPA said it is reviewing Van der vaart’s letter.

This story was originally published January 12, 2016 at 6:32 PM with the headline "Top NC environmental official disputes EPA allegation."