Courts & the Law, Environment

Court decision out of DC could portend trouble for Atlantic Coast Pipeline

Hundreds of people turned out in Rocky Mount to comment on the water quality, riparian buffer and climate change impacts of the Atlantic Coast Pipeline. (Photo: Lisa Sorg)

During the state’s public hearings and listening sessions about the controversial Atlantic Coast Pipeline, many concerned citizens talked about how the $5.5 billion project would contribute to climate change. Natural gas is a fossil fuel. The fracking operations in West Virginia, the starting line for the 600-mile pipeline, would leak methane, a potent greenhouse gas. And the pipeline itself would eventually leak methane as well.

Now in the case of a different pipeline — Southeast Markets — a federal appeals court in the District of Columbia has ruled 2-1 that federal regulators inadequately considered climate change and greenhouse gases in approving the project. The Hill reported the story this morning.

The ruling sets a legal precedent should the Federal Energy Regulatory Commission approve the Atlantic Coast Pipeline. If FERC does — a decision is due Oct. 19 — then it’s almost assured that environmental groups will sue.

The Southeast Markets pipeline is owned by three companies: TransCo, which already operates a pipeline that runs through North Carolina; Sabal Trail Transmission, and Florida Southeast Connection. The 688-mile pipeline would run through Alabama and Georgia before ending in Florida, where it would fuel existing and planned power plants. (This scenario is similar to the ACP, which would bring gas to Virginia and North Carolina to fuel Duke Energy’s and Dominion Energy’s facilities.)

The Sierra Club sued FERC following its 2016 approval of Southeast project. The court denied all of the Sierra Club’s objections, except the one about greenhouse gases.

Judge Thomas Griffith, who was nominated to the court by President George W. Bush, wrote the opinion. From The Hill:

“As we have noted, greenhouse-gas emissions are an indirect effect of authorizing this project, which FERC could reasonably foresee, and which the agency has legal authority to mitigate,” Griffith said.

However, the court’s decision doesn’t kill the pipeline. The project returns to FERC, which is required to complete the necessary greenhouse gas analysis.


FERC Pipeline Appeals by LisaSorg on Scribd


Republic Services pulls the plug on leachate aerosolization test program


This is a developing story. There will be updates as more information becomes available.

Leachate aerosolization, also known as “garbage juice in a snowblower” was not effective during a test program at a Republic Services landfill, Drew Isenhour, area president of Republic Services in North Carolina, confirmed to NCPW today. He said that the trial had been conducted “a while ago,” adding that “we have no plans for its future use or application.”

The controversial technology, which would become legal for wider use under House Bill 576, pumps leachate from landfills and sprays it into the air. The theory is the heavier, contaminated particles will fall within the landfill footprint and the benign particles will drift away. However, there are no independent, peer-reviewed studies that support its safety.

Landfill companies are interested in cheaper alternatives to collecting the leachate in tanks and trucking it offsite.

House Bill 576 was sponsored by Rep. Jimmy Dixon, a Republican from Duplin County. It required DEQ to approve the technology. Sen. Trudy Wade, a Guilford County Republican, strongly supported the bill. Last year, she received a $5,000 campaign contribution from the inventor of the system, Kelly Houston of Cornelius.

Although both chambers passed the bill, Gov. Roy Cooper vetoed it on June 30. The measure is scheduled for a floor debate in the House on Thursday.

The NC Department of Environmental Quality had approved permits for a 90-day pilot program at three Republic-owned landfills and the Brickhaven mine. Duke Energy is disposing of coal ash at Brickhaven, near Moncure in Chatham County, where the materials are stored until it can be used in the manufacture of concrete. Charah, Inc. is managing the operation.

Cassie Gavin, director of government affairs at the North Carolina chapter of the Sierra Club said the failure of Republic’s test program should negate the legislation.  “There is no need to require DEQ to permit a technology that a key industry isn’t interested in using,” There’s no need for the bill.”

Charah has also proposed a field trial of an evaporation method, which is similar to aerosolization. However, DEQ has not yet approved a permit for that trial.

DEQ could not be reached immediately for comment.

On behalf of Republic, Isenhour gave a presentation to the legislature’s Environmental Review Commission about leachate aerosolization in February 2016. However, Isenhour told NCPW that the company did not advocate for HB 576.

Therese Vick, coal ash coordinator for the Blue Ridge Environmental Defense League, questioned who is behind House Bill 576: “Republic Industries,  the owner of many NC commercial landfills, says the technology doesn’t work. What is behind the legislative and agency push on this unproven technology?”


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


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:

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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What ‘Schoolhouse Rock’ didn’t tell you: How House Bill 589, the renewable energy law, was made


Rep. John Szoka (Photo: General Assembly)

R ep. John Szoka, who lives in Fayetteville, but is originally from Ohio, was present during a pivotal moment in modern environmental history.

“I remember when the Cuyahoga River burned” in 1969, Szoka, a three-term Republican, told the NC Energy Policy Council this week. The result of pollution, the blaze ushered in a new era of environmentalism, including the creation of the EPA.

Considering a major river ignited in his home state, Szoka nonetheless has a conservative-leaning environmental history. For example, he supported a measure that would have wrestled control from local governments to regulate the cutting of trees for the placement of billboards.

But he is interesting in solar energy, and after failing to advance renewables legislation in the 2015-2016 session (third-party solar energy sales were unpalatable for Duke) he was the leading co-sponsor on House Bill 589: hard-fought, flawed, fast-tracked, but as-good-as-we’re-going-to-get-under-the-circumstances legislation that could further spur the growth of solar power and imposes an 18-month moratorium on wind energy. It is now law.

The NC Energy Policy Council is an appointed board operating under the auspices of the NC Department of Environmental Quality. Its members heard from Szoka and the special interest groups that helped craft the legislation, which provided insight into how most of the bill was made — and how it nearly failed.

At one point in May, nine months’ of talks among clean power groups and Duke Energy had stalled. The river, so to speak, was about to catch fire.

“There would be potential solutions and then they would drift away,” said Szoka, who by design, did not attend these meetings until the impasse. “We got involved when there were intractable problems that had to be resolved.”

On Saturday, May 13, the interest groups and the bill co-sponsors, including Reps. Dean Arp and Sam Watford, hunkered down for a marathon six-to-eight hour mediation. “Using different settlement techniques,” Szoka said, “we had a breakthrough.”

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