EPA: NC risking federal takeover of environmental regulation

Donald van der Vaart, Secretary of the N.C. Department of Environmental Quality speaks at the Environmental Health Summit in Durham, N.C. on Monday, October 26, 2015.
Donald van der Vaart, Secretary of the N.C. Department of Environmental Quality speaks at the Environmental Health Summit in Durham, N.C. on Monday, October 26, 2015.

North Carolina’s recent tactic of blocking citizens from challenging state permits for industrial polluters could result in a federal takeover of the state’s regulatory program.

The U.S. Environmental Protection Agency has put state officials on notice that North Carolina’s strategy is putting the state at risk of losing its authority to regulate industrial water pollution and air pollution. Since receiving the warning two weeks ago, the N.C. Department of Environmental Quality is downplaying the incident as a misunderstanding.

EPA spokeswoman Davina Marraccini said by email that the EPA’s options wouldn’t start with a wholesale takeover of the state’s regulatory program, but rather would start with discussions between the attorney general and DEQ on “the steps the EPA will take in light of these impacts.”

In a letter dated Oct. 30, Heather McTeer Toney, a regional EPA administrator, cautioned department Secretary Donald van der Vaart that the state’s stance in several recent court decisions – that citizen groups did not have standing to challenge air and water quality permitting decisions – was troubling.

The letter mentioned court challenges, brought by two environmental organizations and backed by the Southern Environmental Law Center, over permits issued for a proposed cement plant near Wilmington and a limestone quarry on Blounts Creek near Vanceboro.

The EPA regional administrator stated that court rulings prohibiting the groups from seeking judicial review of the permits “cast serious doubt” on whether North Carolina meets minimum federal requirements to protect its residents from environmental pollution.

This is the first such warning to North Carolina since the federal government authorized the state to oversee air and water regulation in the 1970s. If the federal government were to follow through, North Carolina would be among a handful of states that have been deemed incapable, or unwilling, to enforce federal anti-pollution laws. North Carolina issues thousands of industrial air and water permits annually, and if stripped of those functions the Department of Environmental Quality would be deprived of a significant portion of its duties.

“It’s not exactly a gold star by your name,” said Robin Smith, a former state assistant secretary for the environment who left the agency three years ago when Republican Gov. Pat McCrory assumed power.

“The letter seems to be saying, ‘We’re giving you fair warning,’ ” Smith said. “This is their hammer to take over the penalty program.”

The department is trying to resolve the matter with the EPA, and agency spokeswoman Crystal Feldman said by email, “We believe the EPA misunderstands the legal argument made in this case.”

Feldman further lays blame for the legal tug-of-war on the state’s lawyers at the N.C. Attorney General’s Office, who “developed and argued the legal theories in question.” Since his office generated those legal briefs, Attorney General Roy Cooper has declared his candidacy as a Democratic candidate for governor, a position whose responsibility includes overseeing environmental regulation and appointing the secretary of environmental quality.

Cooper’s spokeswoman, Noelle Talley, said the DEQ had not mentioned the EPA’s concerns to the attorney general. But she said Cooper’s office stands ready to reconsider the state’s legal strategy if the DEQ requests that.

“Attorneys with our office would not put forward a position in a case without input from their clients, and DEQ has been involved from the very beginning in pursuing this legal strategy,” Talley said by email. “However if DEQ believes programmatic issues should be reviewed in light of the EPA letter, our lawyers are willing to assist.”

Feldman noted that since 2011 North Carolina has issued more than 22,000 water permits and more than 4,700 air permits, with staff in Raleigh and all six regional offices dedicated to these duties.

“We have no intention of losing that authority,” Feldman said by email. “DEQ fully supports citizen access to judicial review and is working to alleviate EPA’s misunderstanding about the law.”

In the cases at the heart of the letter, the state has contended that the N.C. Coastal Federation and Sound Rivers did not have standing to challenge the permits. Two administrative law judges and one Superior Court judge agreed with the state’s contentions that the conservation groups and their members could not show direct impact, though attorneys for the organizations argued otherwise.

The N.C. Coastal Federation, Cape Fear River Watch, Sierra Club, and Pender Watch and Conservancy group have sought judicial review of the permits issued to Carolinas Cement Co., a subsidiary of Titan America, for a cement plant proposed near Wilmington. The plant would emit more than 5,000 tons of particulates, mercury and other air pollution annually. Administrative Law Judge Beecher Gray ruled for the state and for the cement company, and Wake County Superior Court Judge Bryan Collins upheld the ruling in March. The Southern Environmental Law Center has challenged that decision and the N.C. Court of Appeals will weigh arguments.

The N.C. Coastal Federation and Sound Rivers, environmental organizations with members dedicated to protecting area waterways, challenged a state permit issued to Martin Marietta Materials for the discharge of up to 12 million gallons of mine waste a day into Blounts Creek, which flows into the Pamlico River. Administrative Law Judge Phil Berger Jr., son of state Senate leader Phil Berger, ruled for the Raleigh-based building materials company. But last Monday, a Beaufort County Superior Court judge overturned Berger’s decision and sent the case back for a second pass through the administrative law court.

The state has argued that public input has been a part of the permitting process.

“Petitioners had the opportunity to and did comment on Carolinas Cement permit applications, they participated in public hearings and had full opportunity to challenge the permit at the agency level,” said an agency filing in September 2014 at the Wake County Superior Court.

“The Petitioners had their day in court,” the state’s legal brief stated. “They were not denied judicial review. They were not denied standing. They simply did not prove an essential element of their case.”

Derb Carter, director of the Southern Environmental Law Center, argued otherwise.

“The whole point of this is the right of citizens to have an impartial court to determine if the state followed the law in issuing the permit,” Carter said last week.

The court decisions that will determine the EPA’s next step are months, if not years, away, so no action is imminent.

John Murawski: 919-829-8932, @johnmurawski