Analysis: Regulatory reform bill puts state on collision course with federal enviro law

A bill winding its way through the Senate would undermine environmental laws governing the hog and natural gas industries, as well as companies that discharge toxic chemicals into the waterways. It would also allow developers to begin investigating Brownfields sites – properties contaminated with hazardous substances – without prior approval from the NC Department of Environmental Quality.

House Bill 600, the Regulatory Reform Act, was heard by a Senate Judiciary Committee yesterday. Although the committee gave the 35-page measure a favorable report, it will certainly change before it sees the Senate floor. 

Sen. Norm Sanderson, a Republican representing eight coastal counties, said some language still needs to be reconciled because it conflicts with federal law. “We’re still working with DEQ on those sections,” Sanderson said.

In fact, several parts of the bill collide with federal law, including the Clean Water Act. And that is a legal dealbreaker.

Here are some notable provisions:

The word salad: Section 7.1 (a) “Failure to act … shall result in a waiver of the certification requirement by the State unless the applicant agrees in writing to an extension of time.”

Translated into plain language: This section would put the Division of Water Resources on an extremely short deadline, 30 days to determine whether a water quality application is complete, 60 days to approve or deny it. 

If DWR fails to meet the first deadline, then the permit must be deemed “complete,” even if it’s deeply flawed.

If DWR fails to meet the second deadline, then the applicant receives its water quality permit automatically.

Why you should care: Water quality permits are the backbone of this type of environmental protection. If a permit is greenlighted by default, then an applicant could discharge pollutants without penalty.

Tell me more: Thirty and 60 days aren’t long spans of time by permitting standards. Some permit applications are complex and require a lot of scientific and engineering analysis. Second, DWR has a staff vacancy rate of 25%. There aren’t enough people to do the job, even without the proposed new deadlines.

More word salad in Section 7.1 (a): “… review of applications for certification shall be limited to water quality impacts from point source discharges from the proposed project .. and shall not consider water quality impacts from the activity as a whole.”

Translated into plain language: Suppose you wanted a state permit to build an electric car factory that would send contaminated wastewater into a stream, and that stream fed a river and major drinking water supply. 

Under the bill, DWR could consider only the resulting environmental harm at the location of the factory. The state couldn’t weigh whether the factory’s discharge would contribute to the greater hardships of folks downstream.

Why you should care: Pollution adds up. People on the receiving end of multiple polluters — Pittsboro, Wilmington — often bear the brunt of masses of contamination. The bill language doesn’t take a holistic view of how pollution affects water systems — streams, rivers, groundwater — at large.

Tell me more: In 2020, Danny Smith, then the DWR director, helped block approval of the Mountain Valley Pipeline Southgate’s application for a water quality permit. He reasoned that because the main MVP, which runs through Virginia, was in limbo, and the Southgate leg was dependent on the main line, it would be detrimental to the environment to start clearing land for a pipeline that might never be built.

There were also concerns about effects downstream of tree-cutting and excavation, such as increased flooding risks and slugs of dirt entering rivers, smothering fish and aquatic life.

Now that permitting obstacles for the main MVP were removed as part of the federal debt ceiling deal, Southgate is likely back in play. This bill would remove a state obstacle for approval.

The word salad: Section 7.2 addresses numeric discharge standards in permits and requires DEQ to ask EPA for approval in weakening said standards.

Translated into plain language: A numeric standard is what is sounds like: A facility can discharge a limited amount of a pollutant, represented by a number, say, 5 parts per million.

A narrative standard is for chemicals that don’t have a number yet. Instead, this type of standard describes the water quality goal. Examples: “Free from toxics in toxic amounts” or “free from objectionable taste or odors.” 

Depending on the chemical, the EPA and all states use a numeric and a narrative standard, as defined in the Clean Water Act. The CWA is federal law, and North Carolina can’t just ignore it.

If the proposed language stays in the bill, DEQ could not limit the amount of toxic chemicals discharged into the waterways unless there was a number attached. And that would require the Environmental Management Commission to make a rule, which can take two years or longer. 

(Also note that a separate bill would empower the legislature to make more appointments to the EMC — and the governor fewer — potentially further weakening the commission’s commitment to upholding environmental regulation.)

Why you should care: Hundreds of chemicals don’t have a numeric standard in North Carolina. If they can be discharged into drinking water supplies — rivers and groundwater — then ultimately they could flow from your tap.

Those include two types that are already contaminating the drinking water of millions of North Carolinians: 1,4-Dioxane, a known carcinogen, and PFAS, per- and poly alkyl fluorinated compounds, many of which have also been linked to cancer and other serious health disorders. 

The EPA has yet to set a maximum contaminant level for these compounds; the agency has proposed 4 parts per trillion for PFOA and PFOS but those standards have not been finalized.

Tell me more: If the bill becomes law, polluters could discharge into waterways, including drinking water supplies, without penalty or limitation. Wastewater treatment plants operated by the cities of Asheboro and Greensboro currently discharge 1,4-Dioxane into the waterways. (Greensboro is bound by a legal consent order to limit the amounts; Asheboro is not, although its discharge permit is up for renewal.)

Chemours, responsible for polluting the Lower Cape Fear River Basin with several types of PFAS, is bound by a legal consent order to stop discharging those contaminants into the environment. However, Chemours is just one of many sources of PFAS in the state.

The safeguard, though, is that the EPA must approve a state’s water quality standards, both numeric and narrative. This is where the bill could meet its match with the Clean Water Act.

The word salad: Section 12 (b) limits the conditions the state can put on animal waste system permits.

Translated into plain language: The state can’t deny a permit for a hog waste lagoon or swine gas project based on civil rights grounds. 

Why it matters: Title VI of federal civil rights law forbids any recipient of federal money from discriminating based on race, ethnicity, gender, national origin, and so on. As this applies to the environment, Title VI comes into play when predominantly nonwhite and/or low-income communities are disproportionately burdened by multiple pollution sources. In some parts of North Carolina, predominantly Black, Latinx and Indigenous communities are surrounded by enormous swine farms.

Tell me more: Environmental advocates and affected communities already settled one Title VI lawsuit with DEQ in 2021. That dealt with the permitting process for hog farms. A second Title VI complaint was filed by similar groups about the lack of state regulation over poultry operations.

Over the past five years the legislature has repeatedly passed laws carving out special treatment for the pork industry. For example, it’s now nearly impossible to file nuisance suits against neighborhood hog farms, even if the stench, flies and groundwater contamination significantly impairs your quality of life.

And the final word salad can be found in Section 17. It states that “This Part is not intended and shall not be construed to [l]imit or preclude a prospective developer from performing an investigation of a brownfields property without prior approval from the Department.”

Translated into plain language: A prospective developer can investigate a Brownfields property without first getting permission from the state.

Why it matters: Brownfields are areas contaminated with hazardous substances that nonetheless can be redeveloped for specific uses, such as industry. Developers who enter the state’s Brownfields program can get financing for their projects that otherwise would be difficult to obtain, considering the environmental issues. 

However, the developer can’t make the contamination worse, lest they get removed from the program.

If the developers start exploring a site, digging up dirt, excavating leaking fuel tanks, etc., without a plan approved by the state (Exhibit A: the old Tar Heel Army Missile Plant in Burlington) they could inadvertently or negligently release contaminants into the environment and potentially harm neighbors. This could also lead to developers finding themselves on the hook for making a nasty situation worse.