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Senate to Pass Major Environmental Changes

By Kirk Ross / Carolina Public Press

The North Carolina Senate tentatively passed a massive new regulatory bill mandating dozens of changes to state environmental protections, including some rejected last year in a showdown with the House over a similar bill.

A final Senate vote on the measure is expected today. Once passed there, the bill will go to the House.

Last weekend, House Bill 765, a one-page measure on gravel rules, was converted into the new 54-page Regulatory Reform Act of 2015.

Although the bill covers a wide ranging set of changes to state regulations, in committee debates during the week and on the Senate floor Thursday, the focus was on amendments to state environmental laws that drew the most attention.

They include privatizing some oversight of wastewater treatment plants, a cut in the number of state air quality monitors, reductions in protections for isolated wetlands, and changes that would make it more difficult for citizen groups to mount environmental challenges.

Some of the proposals, including the air quality provisions had surfaced in prior bills last year, but had failed to become law.

Bill sponsor Sen. Trudy Wade, R-Greensboro, called the package another step forward in an effort to reduce unnecessary regulations.

The bill, which emerged late Sunday night, caught many by surprise and left N.C. Department of Environment and Natural Resources officials, in a committee hearing Monday, unprepared for questions about the impacts of some of the provisions.

By Tuesday morning, however, DENR weighed in forcefully on several provisions. In a 15-page letter to the Senate, Mathew Dockham, DENR’s director of government affairs, said the department could not support the bill in its current form.

Dockham outlined several provisions of concern, including a provision that would exempt utility contractors from seeking environmental permits.

“It appears that anyone could put sewer lines (or other utilities) in anywhere without regard to any potential environmental impact,” he wrote.

By the time the bill reached the Senate floor on Wednesday afternoon, Rules Committee chair Sen. Tom Apodaca, R-Henderson, announced that DENR and Senate negotiators had worked out a compromise on several of the questioned provisions.

Apodaca introduced a series of six amendments aimed at easing DENR concerns, including one which struck the proposed exemption for utility companies and initiated a study of the idea instead.

The bill passed on second reading, 30-14, with the chamber divided along party lines. Several amendments introduced by Democrats to strip out some of the proposals also failed on party line votes.

Accusations of arm twisting

The overnight resolution with DENR resulted accusations of arm twisting bySen. Josh Stein, D-Wake. Stein noted that none of the amendments addressed DENR’s concerns about the air quality monitors.

An assessment by environmental organizations on similar language last year showed that the state would shut down more than half of its roughly 130 monitors.

But in an email to Carolina Public Press, DENR officials said the department estimate is that only 12 monitors that are already being phased out would be required to be shut down under the bill.

That group includes stations that monitor fine particulate matter in Waynesville, Marion and Boone, which are due to be shut down on Dec. 31 under an agreement struck last year between DENR and the Environmental Protection Agency.

Given past battles over regulatory bills, the House could either agree to a conference committee to work out the differences or prepare a new bill to volley back to the Senate.

Rep. Chuck McGrady, R-Henderson, said he had a “numerous” concerns about the bill and plan to delve into the details during the break.

“Assuming that the changes to isolated wetlands, removal of air quality monitors and changes proposed to challenges on air quality permits are the recycled language that I’ve seen in the past, I will not support any of those changes,” McGrady said.

Citizen challenges challenged

Two areas that were not listed as concerns by DENR are among the most troubling in the bill for environmental groups.

Mary Maclean Asbill, a senior attorney with the Southern Environmental Law Center, said one provision that hasn’t been seen before takes direct aim at the kind of citizen actions that highlighted coal ash contamination and other major environmental issues.

A provision in the bill would force law firms representing citizen groups that fail to win their cases to reimburse the state’s legal fees.

Asbill said the measure, which doesn’t allow for judicial discretion or take into account the evolution of a case, not only would apply to environmental cases, but also in challenges to state transportation projects.

“This will make it harder for people to bring challenges,” Asbill said.

Cassie Gavin, director of government relations with the North Carolina chapter of the Sierra Club, said the provision would put an extra burden on legal action like the move by citizen groups to demand a clean up of coal ash at Duke’s Asheville generating plant.

“The intent and impact would be a chilling of citizen suits on environmental issues,” she said.

Another provision Gavin and Asbill cited was a proposed change in how challenges against air quality permits are treated. Under the proposed change, if a citizens group challenges a permit, the construction project could go forward while the legal case goes through the process.

Gavin said since a case could take years, it would allow projects to be built anyway and make judges less likely to rule in favor of a challenge after the fact.