Q&A: Environmental attorney Derb Carter on DEQ’s power to regulate GenX (or not); lawmakers to hold hearing Wednesday

Sen. Harold Hardison in 1985: If there are no federal regulations, “the sky’s the limit.” Hardison died in 2015 at age 92. (Photo: Screen capture, UNC School of Government, UNC-TV)

In 1973, the year that Sen. Harold “Bull” Hardison of Lenoir County sponsored the controversial amendment that bears his name, the EPA was just three years old. The Clean Water Act was in its infancy, as was the modern version of the Clean Air Act.

And North Carolina, faced with the federal government flexing its regulatory muscle, needed a workaround. If the EPA hadn’t regulated certain pollutants, then the state shouldn’t have to regulate them, either. Without federal laws, “the sky’s the limit,” Hardison, a conservative Democrat told UNC-TV in 1985.

The Hardison amendment and its restrictions on the regulatory powers of DEQ are again under scrutiny as state environmental officials grapple with the contaminant GenX in the Cape Fear River and the drinking water in New Hanover, Pender and Brunswick counties.

In essence, the Hardison amendment prohibits DEQ from adopting stronger environmental standards than the EPA’s rules regarding air, water and solid and hazardous waste. However, there is an exception within the law for “serious or unforeseen threats,” which allows DEQ to make temporary rules  governing pollutant levels in case of a crisis. GenX is arguably such as crisis.

DEQ’s regulatory authority is likely to be a topic of discussion Wednesday when the legislature’s Environmental Review Commission holds an investigative hearing about GenX.  The hearing, which will include public comment, runs from 1:30 to 5 p.m. at the New Hanover Government Center, 230 Government Center Drive, Wilmington. A tour of the Sweeney Water Treatment Plant will begin at 10:30 a.m.

(New to the Hardison amendment saga? The UNC School of Government has an excellent primer on the law.)

The legislature repealed the Hardison amendment in 1995, freeing the state to set more stringent regulations on water, air and waste. But in 2011, the Republican majority voted to reinstate it. And some legislators, including members of the Republican Senate Caucus, are invoking the “serious and unforeseen threats” exception to criticize DEQ for not using it to set temporary GenX standards in drinking water.

However, as is the case with a lot of legislation, it doesn’t fully consider the loopholes or relate to real life.

Chemours, responsible for discharging GenX into the Cape Fear, could argue that the chemical is not on the list of the EPA’s regulated pollutants for its “category of industry.”  Examples of these industrial categories include textiles, electroplating, chemical manufacturing.

As environmental attorney Derb Carter Jr. explains, Chemours could thread the legal needle and argue that DEQ can’t set a standard for GenX in this industrial category. This nuance is important, and to learn more about what DEQ can and can’t do under the amendment, NCPW spoke with Carter, director of Southern Environmental Law Center’s Chapel Hill office, about the finer points of the Hardison amendment and DEQ’s powers.

Derb Carter Jr., director of the Southern Environmental Law Center’s Chapel Hill office. (Photo: SELC)

NCPW: Does the Hardison amendment prevent DEQ from regulating GenX in the Cape Fear River in case of “serious or unforeseen threats”?
Carter: If the state wanted to adopt a very stringent standard for GenX — and there is no EPA numeric standard for GenX— it can do so.

But it’s not that simple. There’s a loophole.
Carter: The way the Clean Water Act works is that the EPA has national standards or effluent guidelines for categories of industries. The EPA has set standards for pollutants that these categories of industries can discharge. But there are no standards for GenX under EPA’s effluent guidelines for Chemours’s category of industry, or for that matter, any category of industry.

So how can companies like Chemours circumvent the state’s powers to regulate their discharge of emerging contaminants?
Carter: The Hardison amendment prohibits DEQ from adopting an environmental standard if a federal rule has been adopted pertaining to the same “subject matter.”  So whether the state can adopt a particular standard depends on how you define that — the “subject matter” of the federal rules.
If I were an attorney for Chemours, I’d argue that the “subject matter” of the federal rule is the comprehensive national standards for this category of industry. The comprehensive list of allowed pollutants doesn’t include GenX; because GenX is not included, the state cannot adopt a limitation for GenX for this industry.

Under the law, DEQ or the Environmental Management Commission can adopt a temporary rule in the case of “serious or unforeseen threats.” What about a permanent rule?
Carter: Under existing law, DEQ can move quickly to adopt a temporary rule, but only for a limited duration. Then it has to be replaced by a permanent rule, which has to go through rule-making process. That includes public notice and comment.

DEQ’s ability to enact a permanent rule, though, is being jeopardized in House Bill 162. The bill would prohibit DEQ or the Environmental Management Commission from doing that.
Carter: The bill passed by the Senate and pending in the House layers financial requirements on top of the Hardison amendment. Under the bill, an environmental regulation can’t cost more than $100 million over five years. That’s $20 million a year.  And a cost of $10 million over five years or $2 million a year requires legislative approval.

That’s really not much money. Cleanups are very expensive. A company could burn through that amount very quickly.
Carter: Yes, and under the bill you can’t count the benefit of the rule. So if it cost $100 million to regulate GenX but the benefit to the public is $800 million, DEQ or the EMC still couldn’t enact a rule to protect the public from GenX.
It’s completely outrageous. Instead of trying to impede the state’s ability to protect the public from water pollution through House Bill 162, the legislature should repeal the Hardison amendment and allow the state to adopt environmental protections necessary to protect the public.

What are the consequences of the legislature prohibiting DEQ or the EMC from enacting stronger rules than the EPA’s?
Carter: The Hardison amendment and its restrictions put North Carolina’s environmental protection at the mercy of [EPA Administrator] Scott Pruitt and the Trump administration, which is not a particularly comforting thought. And it ensures North Carolina’s protections for air and water quality are at the bottom in the nation.

Source: General Assembly, UNC School of Government, Campbell University School of Law


The best post-Charlottesville observations of the weekend

There were (and continue to be) lots of insightful takes on the Charlottesville disaster and what it says about (and means for) our country. Two of the best this past weekend, however, came from North Carolinians who issued powerful calls to action — not just passive disapproval or disagreement with the racist Right.

In the Charlotte Observer, local Black Lives Matter leader Tiffany Capers penned an on-the-mark assessment of what people who oppose racism need to do. This is from “Not being racist is not enough”:

“Not being prejudice against people of color; not discriminating personally or corporately, not expressing biases – these are good places to start. Not being racist aligns with our moral compass and may cause us to be disgusted by the mistreatment of others. Not being racist is a low bar for most of us.

However, becoming anti-racist moves us beyond a passive response of being appalled by what we see and stating one’s position, values and beliefs. Antiracism is about aligning one’s action with those beliefs; it means opposing racism and not just being offended by it.

Being antiracist requires that we actively learn and deepen our understanding of what racism is; that we accept the discomfort that will ensue; that we explore our biases with courage; we commit to be a part of the solution and we work to develop meaningful connection with people who do not share our racial identity.

Becoming antiracist requires that we actively create the world we want. It is a journey. Fortunately, the world is small – we can begin with the change that is possible in our own lives.”

Meanwhile, Rev. William Barber of the North Carolina NAACP and Forward Together Movement, put it this way in a Sunday statement, as reported by Raleigh’s News & Observer:

“‘If you just pull down the statue but you do not pull down the statutes, the laws that support them, we still have issues.’ Barber said….

‘You can’t just renounce what happened in Charlottesville,” Barber said. “You’ve got to denounce what happened before Charlottesville that emboldened the people to go to Charlottesville….’ Read more


Lawmakers release proposed Senate legislative map


The new proposed Senate legislative map is now live.

The map, which was redrawn to correct unconstitutional racial gerrymanders, was released Sunday night. The proposed House legislative map was released Saturday afternoon.

Lawmakers were allowed to consider election data to redraw both the maps, but not racial data, according to criteria passed (mostly along party lines) a little over a week ago.

The information actually considered when drawing both maps won’t be released until at least Monday, according to Rep. David Lewis (R-Harnett), who is a co-chair of the House and Senate redistricting committees.

There are four incumbent Senators double-bunked in the proposed map, which means that they would be forced to run against each other in an election. One of them, however, announced Sunday that he would not be running for re-election, Rep. Chad Barefoot (R-Franklin, Wake).

Barefoot was double-bunked with Sen. John Alexander Jr., another Republican, in Wake County District 18.

Democratic Sen. Erica Smith-Ingram is double-bunked with Republican Sen. Bill Cook in District 3, which includes Northampton and Beaufort counties.

Republican Sen. Joyce Krawiec appears in the map to be double-bunked in District 31, which includes Forsyth and Davie counties, with Republican Sen. Andrew Brock, but he resigned at the end of June.

And finally, two Republican lawmakers, Sen. Deanna Ballard and Sen. Shirley Randleman, are double-bunked in District 45, which includes Watauga and Wilkes counties.

There are at least four vacant seats in the proposed Senate map — District 1, which includes Dare and Pasquotank counties; District 33, Stanly and Rowan counties; District 34, Iredell and Yadkin counties; and District 16, Wake County.

Both the Senate and House proposed maps have to be submitted to a three-judge panel by Sept. 1 for approval. The maps could also change after a series of public hearings planned for 4 p.m. Tuesday across the state.




Redistricting committee releases proposed House legislative map without data used to draw districts

Rep. David Lewis (R-Harnett) tweeted out the new proposed House legislative map Saturday afternoon.

Lawmakers passed criteria to use when drawing the maps a little over a week ago, but the data actually used in the process won’t be released until Monday, Lewis said.

The House is scheduled to vote on the map Friday and both legislative maps — which are required to be redrawn to correct unconstitutional racial gerrymanders — are due to be submitted for approval to a three-judge panel Sept. 1.

According to criteria passed a little over a week ago by the joint House and Senate redistricting committees, racial data was not considered in the redrawing process but political data was.

One of the criteria passed (along party lines, with Republican majority) included making reasonable considerations not to double-bunk any incumbent legislators, a process in which two incumbents are forced to run against each other in an election. For the most part, the proposed map appears to accomplish that with a few exceptions.

In Greensboro, Representatives John Faircloth and Jon Hardister — both Republicans — are drawn into District 61 with a vacant adjacent seat in District 59. Similarly, two Republicans are double-bunked in Cabarrus and Rowan Counties, Representatives Carl Ford and Larry Pittman.

Democrat and Republican incumbents are double-bunked in Wilson County — Democratic Rep. Jean Farmer-Butterfield and Republican Rep. Susan Martin — and in Lee County — Democratic Rep. Robert Reives II and Republican John Sauls.

There is an adjacent seat to Lee County without an incumbent in Chatham County. Reives wrote on Twitter that he would continue to serve the people of Chatham County if the current House map was approved.

Notable voting rights groups and the Democratic Party criticized Republicans on Saturday for releasing the maps without more details.

“Colors on the map are pretty, but you really can’t tell much of anything about how fair the district lines are without the data,” said Bob Hall, Executive Director of Democracy NC.

Common Cause NC Executive Director Bob Phillips released a statement that the organization continues to be deeply concerned about “the partisanship and lack of transparency in this latest round of redistricting.”

“Legislative leaders have released only partial information on the new House map, and are still yet to release the new Senate map, even though we are just 72 hours away from a public hearing on the new districts,” Phillips wrote. “This falls short of giving citizens sufficient time and information to study the new districts and how the maps will impact their communities.”

He added that the latest round of redistricting appears largely as flawed as redistricting in the past, driven by partisanship.

Similarly, Democratic Party Executive Director Kimberly Reynolds released a statement accusing Republican leaders of continuing to show more concern over supermajorities than fairly representing the state.

“We’ll wait to see more details before examining individual districts, but we continue to be concerned by Republicans’ insistence on using the same dark arts gerrymandering expert who drew the previous unconstitutional maps, and their refusal to conduct this process in a transparent and bipartisan fashion,” she said.

There are seven public hearings set up across the state scheduled to take place at 4 p.m. Tuesday, and Lewis indicated the maps (the proposed Senate map has not yet been proposed) could change based on that input. You can read more about where to attend the hearings here.


Comment period ends Aug. 19 on state’s water permit for Atlantic Coast Pipeline; plus a look at who’s in the blast zone

Vibrina Coronado, a member of the Lumbee Tribe: “The route of the ACP is through native nations. Rural, native, low-income people shouldn’t be disproportionately affected.” Thirteen percent of the population affected by the ACP is American Indian, even though they compose only 1.2 percent of the population statewide. (Photo: Lisa Sorg)

The NC Department of Environmental Quality is accepting public comment until Aug. 19 at 5 p.m. on the Atlantic Coast Pipeline’s application for a water quality certification and buffer authorization. This is known as a 401 certification.

Submit comments by email with “ACP” in the subject line: PublicComments@ncdenr.gov

O n three of the four corners of Whistling Rufus and Philadelphus roads on the outskirts of Pembroke sit a smattering of homes of varying ages and conditions. On the northwest corner, a stark, modest two-story with a child’s slide in the back yard; to the northeast, a one-story ranch where the crape myrtles are blooming in brilliant hues of magenta and pink; and to the southwest, a mishmash of buildings, including a mobile home with foil covering its front windows to block out the morning sun.

All of these houses share at least one commonality: They lie within the blast zone of the Atlantic Coast Pipeline, where people would likely be injured or die in the event of a natural gas explosion.

Clean Water for North Carolina issued a report this week with maps showing the most vulnerable areas in seven of the eight counties along the 160-mile portion of the route in eastern North Carolina. Meanwhile, BREDL (Blue Ridge Environmental Defense League) sent a letter to the state fire association detailing the causes of the 1,329 pipeline accidents over the past 20 years — including corrosion and welding failures — and the resulting risk to both rural North Carolina and first responders.


The Final Environmental Impact Statement for the ACP identified 24 High Consequence Areas in North Carolina. Of the eight counties along the route, all but Sampson have at least one of these areas: they have at least 20 occupied buildings or “vulnerable populations” — daycare centers, retirement homes.

In addition to these High Consequence Areas, ACP contractors, hired by Duke Energy and Dominion Energy, calculated a Blast Zone of 660 feet, based on the pipeline’s 36-inch diameter and the pressure per square inch. But Oshin Paranjape, who is pursuing her master’s degree at the Duke University Nicholas School of the Environment, reviewed the contractors’ technical documents on behalf of Clean Water for North Carolina. Based on that data, Paranjape calculated the Blast Zone is 943 feet — about a third larger than ACP contractors figured. The evacuation zone is 3,071 feet, more than a half-mile from the radius.

That means at the corner of Whistling Rufus and Philadelphus roads, the home with the child’s slide and the ranch with the crape myrtles are within the blast zone, as are many houses to the north. The mobile home with the foil covering the windows, the Green Pine Free Will Baptist Church and buildings to the south lie within the evacuation zone, assuming the wind is blowing away from it.


In red, the blast zone near Whistling Rufus and Philadelphus roads in Robeson County located at the intersection near the middle of the image. The yellow lines signify the pipeline route and survey area. The light pink designates the evacuation zone. Clean Water for North Carolina’s report contains maps of all blast and evacuation zones associated with the ACP’s route in the state. (Image: Clean Water for North Carolina)


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