NC regulatory reform bill could limit DEQ’s ability to control water pollution
The latest version of the General Assembly’s sprawling regulatory reform bill includes changes to environmental permitting that could affect both the ongoing general permit process for animal waste on several types of farms and litigation filed over systems that capture methane at those operations.
A 30-page proposed committee substitute for House Bill 600 discussed in the Senate’s Agriculture, Energy and Environment Committee would limit when the N.C. Department of Environmental Quality can consider nearby water pollution or require facilities to install updated pollution controls.
Regulators can currently consider those factors when reviewing all water permits, while the proposed change would limit them to only doing so for water discharge permits at new or enlarged facilities. Additionally, the legislation would limit what regulators can consider when ruling on animal waste permits solely to factors included in state law.
Environmental advocates and attorneys are warning that should those changes become law, the state could be violating federal clean water and federal civil rights laws.
State law requires animal waste management systems like lagoons on hog farms to abide by conditions including submitting an application at least 180 days before starting construction on a new or expanded facility; operating a lagoon so that it doesn’t spill pollution during a so-called “25-year, 24-hour” storm; and maintaining a plan that shows waste is being spread on crops at levels that ensure nitrogen isn’t being lost.
But some argue environmental regulators should be able to — and may in fact need to — consider factors that aren’t included in the state law for animal waste management permitting. Blakely Hildebrand, a Southern Environmental Law Center senior attorney, said the provision focusing on animal-waste permits seems written to give regulators “a green light” to ignore federal environmental laws when drafting those rules.
“I think there are pretty good arguments why that can’t work, but it seems as though this language is intended to get around those obligations,” Hildebrand said.
Ongoing biogas lawsuits
Hildebrand is one of the attorneys representing the N.C. Environmental Justice Network and Cape Fear River Watch in a lawsuit against DEQ over its approval of a general permit for biogas digesters.
Some hog operations in the state are capping waste lagoons with thick plastic domes in an effort to capture the methane that wafts off of them. The methane is then sent to processing facilities where it is turned into natural gas. Industry groups say the operations limit emissions of methane, a potent greenhouse gas, while producing additional revenue streams for farms. But environmental groups argue that allowing the projects to move forward locks in an outdated waste management system.
DEQ’s general permit allows hog operations to cap lagoons as long as they meet certain criteria and agree to certain conditions.
The lawsuit alleges that in granting the permit DEQ failed to consider practical alternatives to digesters, as well as how they could add to cumulative impacts of water pollution.
The plaintiffs’ argument is centered on a state law — N.C. General Statute 143-215.1(b) — that requires regulators to consider nearby water pollution when granting all new water permits and to contemplate whether alternative treatment methods would better protect the environment. The proposed regulatory reform bill would change that language to prevent DEQ from considering either of those factors when granting permits at existing facilities.
Hildebrand would not comment on how the proposed legislation could impact the lawsuit because it is ongoing.
Facilities that are new or enlarging could carry more of the burden of protecting water if the bill becomes law, said Grady O’Brien, a policy associate with the N.C. Conservation Network. That could be particularly important if either state or federal environmental agencies place new limits on pollutants or move to regulate additional chemicals.
“It’s going to be these new or enlarging sources who are going to be the only ones who these new conditions or controls or limits are applied to,” O’Brien said, adding that he believes the legislation “overprescribes” regulatory powers to DEQ.
A DEQ spokesman declined to explain the department’s stance on the water quality provisions, saying in an email that it does not comment on proposed legislation.
DEQ working on general permits
The General Assembly is proposing the changes as DEQ is in the early stages of modifying and renewing the general permits that cover many animal operations in the state.
Regulators are accepting public comments through Monday regarding what changes people would like to see in the general permits covering the waste management systems at operations growing cattle and hogs, as well as poultry operations that have liquid waste management systems. Additionally, DEQ is renewing the general permits for biogas digesters.
A spokesman for the N.C. Pork Council did not respond Friday to a request for comment on the legislation or how it could impact the general permit process.
The general permit process does not cover the vast majority of poultry operations in the state, which capture dry litter from their birds and heap it in large piles before it is frequently used as fertilizer.
For this general permit process, DEQ is first accepting comments through Monday about what changes the public or stakeholders would like to see in the permits. From there, DEQ plans to draft updated general permits that will be released to public comment again. The agency will then finalize the proposed changes.
“DEQ is in the early stages of its permitting process to renew the digester general permits as well as the swine general permits so it seems pretty obvious to me that it’s targeted at those permitting decisions,” Hildebrand said.
The Senate committee did not vote on the legislation, but is set to do so on Tuesday. Two more committees would need to approve the legislation before it would be voted on by the full Senate. If the Senate approves the bill as modified, the House would need to concur with the changes before it could be sent to Gov. Roy Cooper.
This story was produced with financial support from the Hartfield Foundation and 1Earth Fund, in partnership with Journalism Funding Partners, as part of an independent journalism fellowship program. The N&O maintains full editorial control of the work.
This story was originally published June 3, 2023 at 11:43 AM.