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Rushed amendment complicates air quality challenges

SmokestacksHere’s the problem with hurrying bills, especially poorly drafted ones, through passage into law — something we’re witnessing right now with major legislation being pushed at breakneck speed with little consideration and debate.

Sometimes that one word, sentence or paragraph inserted into an existing statutory framework for the benefit of a lawmaker’s constituent, client or favored industry has widespread and unintended consequences.

Exhibit A: the section of the Regulatory Reform Act, Senate Bill 734, dealing with who can contest air quality permit decisions and what proof is required.

Prior law allowed permit applicants and third parties to contest an administrative decision granting or denying an air quality permit.

As amended, citizens and other third parties would still be able to contest such a decision but would have to meet a newly defined standard of  “substantial prejudice” to proceed.

As stated in the bill, “‘substantial prejudice’ to the petitioner in a contested case filed under this subsection means the exceedance of a national ambient air quality standard.”

In other words, the only way citizens can contest the issuance of an air quality permit is to show that the company receiving the permit will be emitting pollutants exceeding the national standard.

That language actually mirrors an argument made by Carolinas Cement Company in a case pending before the Environmental Management Commission, North Carolina Coastal Federation v. N.C. Department of Environment and Natural Resources.

In a brief submitted in February 2014 the company argued that the federation and other groups could not challenge the issuance of  an air quality permit because they could not show “substantial prejudice,” which the company itself defined as emissions exceeding national standards.

“The undisputed evidence in this case is that the air emissions from this facility will not result in an exceedance of the National Ambient Air Quality Standards or the State Acceptable Ambient Levels,” the company wrote.

That argument has now morphed into a statutory definition of prejudice needed to contest an air quality permit under the proposed Regulatory Reform Act.

Here’s the problem.

According to the Southern Environmental Law Center, there are no national ambient air quality (NAAQS) for toxic mercury and other pollutants including arsenic, benzene, radioactive materials, carcinogens, asbestos, dioxins, chloroform and most of the nearly 180 pollutants listed as Hazardous Air Pollutants under the Clean Air Act.

That leaves citizens wishing to challenge mercury emissions, for example, or a host of other pollutants without recourse.

Is that the intent of the amendment?

5 Comments

  1. LayintheSmakDown

    May 31, 2014 at 8:58 am

    Why the hysteria? This seems like a good way the keep the envirowhackos from ganging up on companies when they have no basis to do so. This keep a lot of those frivolous lawsuits out of the courts so that suits with actual standing can be heard.

  2. Meg Sawicki

    May 31, 2014 at 9:36 am

    Environwackos? Did you not read the part that said “According to the Southern Environmental Law Center, there are no national ambient air quality (NAAQS) for toxic mercury and other pollutants including arsenic, benzene, radioactive materials, carcinogens, asbestos, dioxins, chloroform and most of the nearly 180 pollutants listed as Hazardous Air Pollutants under the Clean Air Act.” NC is in a Koch stranglehold

  3. James

    May 31, 2014 at 9:50 am

    De-delegation is the answer.

    DENR and the General Assembly have shown themselves unfit, unable, and unwilling to meet the minimum requirements for environmental protection in accordance with federal guidelines. Americans cannot trust North Carolina to do its part in preserving our country’s natural resources. It’s time for the federal government to take back the responsibility for environmental stewardship in North Carolina.

  4. Alan

    May 31, 2014 at 12:12 pm

    And yet another reflexive, and breathtakingly ignorant comment from LSD.

  5. LayintheSmakDown

    June 3, 2014 at 8:58 pm

    Meg…how do you get from NC….to national….back to NC? You must be in some progressive drug induced hallucination. And Alan with is usual sound and fury contributing absolutely nothing.