Environment, Governor Roy Cooper, Legislature

Analysis: Water Safety Act constitutionally suspect, could slow down enforcement, clean up

Rep. Ted Davis Jr., a New Hanover County Republican (Photo: NCGA)

It’s curious how two legislators, who, in their day jobs are attorneys, have co-sponsored bills that leak state and federal law like a sieve.

The Water Safety Act — Senate Bill 724 and  its identical companion legislation House Bill 972 — pretend to strengthen regulations and enforcement against Chemours, but in reality, make the state vulnerable to legal action by the company and do little to clean up GenX contamination.

The legislation could be folded into a larger budget bill, making it all but impossible to defeat.

Primary sponsors of the House version are Republicans Ted Davis Jr. (the lawyer of the bunch), Holly Grange, Frank Iler and Bill Brisson. They all are members of the House Select Committee on River Quality.

The Senate counterpart is co-sponsored by Republicans Mike Lee, an attorney, plus Bill Rabon and Wesley Meredith.

The Department of Environmental Quality and Gov. Cooper both issued statements and analysis critical of the bill today. But environmental lawyers, policy analysts and environmental groups, have also chimed in. They have noted the bills’ serious legal defects that could hamper cleanups, run afoul of current state and federal laws, and deprive Chemours and other polluters their constitutional right to due process.

Sen. Mike Lee, a Republican from New Hanover County (Photo: NCGA)

The bills makes DEQ’s actions dependent on the governor, who is authorized to issue an administrative order to “require a facility to cease all operations that result in the production of a pollutant.” (In the bill, “pollutant” is not defined.)

“On its face, a governor’s order sounds like a quicker and more direct way to stop the release of these pollutants,” wrote former Assistant DEQ Secretary Robin Smith, now a lawyer and consultant in private practice, on her environmental blog. “In reality, any order could be appealed in an administrative hearing and the administrative law judge has the power to prevent the order from going into effect until there has been a final decision on the appeal.”

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Those appeals can take months; meanwhile, contamination could continue unabated.

On the other hand, DEQ can go directly (and quickly) to court for an injunction, which the agency has already done in Bladen County to stop Chemours from discharging GenX offsite.

While the legislation appears to target Chemours and its “discharge” of GenX and fluorinated compounds, DEQ pointed out that “discharges,” as defined in state law, exclude air emissions. GenX-related compounds are being emitted into the air from the Chemours plant and contaminating surface water, soil, groundwater and drinking water — topics also extensively discussed in the House River Quality Committee.

In addition, the bill sponsors seemed to go out of their way not to fund DEQ, other than $2.3 million worth of breadcrumbs. “While providing extravagant funding to those other entities, the bill fails to make a long-term investment in DEQ’s regulatory programs that have been subject to budget cuts since 2011,” DEQ said in its analysis.

By comparison, the bill serves as an ATM for other entities: the Cape Fear Public Utility Authority ($450,000), local governments ($2 million), the state health department ($530,000), and the NC Collaboratory at UNC ($8 million), whose research director is Jeffrey Warren, former science advisor to Sen. Phil Berger.

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Environment, Legislature

It’s raining GenX bills: GOP legislation largely ignores DEQ for funding

Rep. Ted Davis Jr. (Photo: NCGA)

Within hours of House Democrats filing HB 968, four more House members, this time all Republicans, put up their own bill, HB 972, which essentially rebuffs any meaningful appropriations for the NC Department of Environmental Quality.

Instead, it appropriates just $2.3 million to DEQ and gives money to just about anyone else who has asked for it: the Cape Fear Public Utility Authority ($450,000), local governments ($2 million), the state health department ($530,000), and the NC Collaboratory ($8 million).

The language in HB 968 resembles the Senate version of the Water Safety Act, introduced during a special session last winter, which seemed almost mean-spirited toward DEQ.

In comparison, Democrats introduced a bill today that would appropriate more than $14 million to DEQ and the state health department to address the GenX crisis.

In Republicans’ HB 972, DEQ is often used as a pass-through for funding. For example, The bill would appropriate $2 million in one-time money to DEQ, which would then disperse funds to local governments to connect households to public water supplies. The polluter would then reimburse the state via a Recovery Fund.

Another $450,000 would go to DEQ for grants to the Cape Fear Public Utility Authority for water sampling and testing new treatment technologies.

The $1.3 million in one-time money to DEQ would be used for temporary staff to conduct water quality sampling for emerging contaminants, to address permitting backlogs, and to sample and analyze GenX in the air, soil and river sediment.

(The funding is being diverted from the dead-on-arrival SePro project. Last year, lawmakers appropriated $1.3 million for the private company to test algae-killing chemicals and other dubious treatments in Jordan Lake. State environmental officials and the US Army Corps of Engineers killed the deal over concerns about potential harm to aquatic organisms and wildlife.)

Another $479,000 would go toward statewide sampling for emerging contaminants, plus $537,000 for a high-resolution mass spectrometer.

Rep. Susan Martin (Photo: NCGA)

DEQ receives no funding to develop a detailed remediation plan for emerging contaminants, as laid out in the bill.

The big winner is the NC Collaboratory, whose research director is Jeffrey Warren, former science adviser to Sen. Phil Berger. The Collaboratory’s one-time $8 million windfall would be used to corral academics to conduct targeted and nontargeted monitoring for emerging contaminants in public water supplies. Money would also be used to buy equipment, pay for research time, study air emissions and to conduct computer modeling for private well contamination and treatment options — all duties usually assumed by DEQ.

The bill also contains a glaring redundancy. It directs the state health department to consult with federal authorities and academics via the Collaboratory to recommend health goals for fluorinated compounds, including GenX. That’s precisely what the Science Advisory Board is doing right now. In fact, it is expected to release its health goal recommendations in June.

Rep. Frank Iler (Photo: NCGA)

The co-sponsors of HB 972 are Republican Reps. Ted Davis Jr., Frank Iler, Bill Brisson and Susan Martin. All but Martin sit on the House River Quality Committee.

HB 972 empowers not only environmental regulators, but also the governor, under certain conditions, to require a facility to “cease all operations and activities” that result in the production of a pollutant.

Neither bill specifically mentions Chemours, but the punitive language in both applies to the company’s conduct in North Carolina.

All of these conditions must be met:

  • the facility has a NPDES discharge permit
  • it has received more than one notice of violation from DEQ within a two-year period
  • the discharge of the fluorinated compounds violates federal drinking water standards or health goals that have been implemented by the state health department
  • DEQ has been unable to stop the facility from these unauthorized discharges within a year of learning of them

DEQ first learned of Chemours’ GenX discharges in June 2017, almost a year ago.

Rep. Bill Brisson (Photo: NCGA)

Polluters would also be require polluters to cover the cost of alternative water supplies for households whose private drinking water wells have been contaminated. More than 100 such wells have been contaminated near Chemours Fayetteville Works plant in Bladen County.

The Democrats’ version of the bill focused on forcing polluters, such as Chemours, to pay to clean up public water supplies they had contaminated.

Environment, Legislature

House members file bill to fund DEQ, target actions by Chemours

Rep. Elmer Floyd, a Cumberland County Democrat (Photo: NCGA)

Legislation filed today in the house would appropriate more than $14 million to the NC Department of Environmental Quality, while strengthening environmental laws that appear targeted at Chemours, the company that has contaminated drinking water, the Cape Fear River, air and groundwater with GenX and related compounds.

House Bill 968 would also repeal the Hardison amendment, which the Republican majority reinstated in 2011 CQ. The Hardison amendment prohibits state legislators or agencies from passing stricter laws and rules than those established by the federal government.

Since the EPA has proposed rolling back regulations on coal ash, car emissions and clean water and air, the Hardison amendment could significantly hamstring North Carolina’s attempts to strengthen its own protections.

The legislation has four Democratic co-sponsors: Reps. Deb Butler of New Hanover County, Pricey Harrison of Guilford County, and Billy Richardson and Elmer Floyd, both of Cumberland County. of the co-sponsors, three are in districts affected by Chemours; Harrison’s district includes rivers and streams polluted with other emerging contaminants, like 1,4-dioxane.

Rep. Deb Butler, a Democrat from New Hanover County (Photo: NCGA)

The bill also contains language that would require companies to fully disclose in their environmental permits all chemicals and compounds that they discharge. Other provisions further empower the Environmental Management commission to “immediately” suspend the discharge permit of companies that allow unregulated toxic pollutants to enter the air or water.

Since the GenX crisis began a year ago, DEQ has filed notices of intent to modify or suspend Chemours’ discharge permit, as well as issued notices of violation. But no permits have actually been suspended.

The bill also establishes conditions under which the DEQ secretary and the governor could declare an emergency when it finds that a “generalized condition of water or air pollution is causing imminent danger to the health or safety of the public.” In such cases, the polluter would have to “reduce or discontinue immediately” discharge of the contaminants.

Chemours recently argued to state environmental regulators that there was no public health emergency associated with GenX; in that case, the company argued, rigorous limits on concentrations in drinking and groundwater were not warranted.

Companies would also be required to provide filtration and treatment for water supplies contaminated by illegal discharges. The Cape Fear Public Utility Authority has already spent upward of $1.7 million to reduce the amount of GenX entering Wilmington’s drinking water supply below the state’s provisional health goal of 140 parts per trillion.

The EMC could also force violators to reimburse the state for removing and halting the pollution, or face a civil penalty.

Rep. Pricey Harrison, a Guilford County Democrat (Photo: NCGA)

As for the funding, about $9 million would be recurring, and much of it for 39 positions devoted to managing, monitoring and analyzing GenX in water and air.

The balance would be allocated as one-time funds for scientific equipment, such as a high-resolution mass spectrometer, temporary staff to work on permit tracking and online access for the public, and upgrades to the Division of Water Resources’ Reedy Creek lab. That facility has not been upgraded in more than 25 years.

Rep. Billy Richardson, a Democrat representing Cumberland County (Photo: NCGA)

Another $536,000 would go to the Department of Health and Human Services to fund four positions: a medical risk assessor, toxicologist, epidemiologist and a public health educator.

Many of these funding requests had been made previously by the governor and other House lawmakers. The Senate has so far rebuffed those requests.

Courts & the Law, Education, Legislature, News

After Parkland, N.C. Democratic lawmakers call for package of gun reforms

Sen. Floyd McKissick, D-Durham, center, at a previous
N.C. General Assembly press conference.

More than a month after a gunman killed 17 in a Florida high school, several North Carolina Democrats called on state lawmakers Monday to pass a package of gun reforms that’s expected to include an expansion of background checks, raising the age for purchasing assault weapons, a ban on bump stocks and additional funding for school counselors and psychologists.

Sen. Floyd McKissick Jr., a veteran Durham Democrat, called the package “incremental legislation” that he hoped would have the support of Republicans and Democrats in the General Assembly.

“We’re taking steps to move our state in the right direction,” said McKissick.

McKissick noted he’s also a victim of gun violence, referring to a reported 1985 incident in a North Carolina convenience store in which robbers reportedly wounded him with a sawed-off shotgun.

Monday’s press conference at the state legislature was hosted by Sen. Jay Chaudhuri, a Wake County Democrat, and included multiple calls for “common sense” reforms from Democrats such as McKissick, Rep. Marcia Morey, Rep. Grier Martin and Sen. Jeff Jackson.

“We realize the issue of gun violence can be fraught with controversy,” said Chaudhuri. “But controversy should not be confused with common sense gun measures.”

No North Carolina Republicans have officially endorsed the proposals put forth Monday, but Democratic lawmakers insisted that the measures have “bipartisan” support, pointing out similar reforms were passed by Florida Republican lawmakers and signed by Republican Gov. Rick Scott this month.

No draft legislation was available yet Monday, but Democrats said the package will follow Florida Republicans in lifting the legal age to purchase assault weapons from 18 to 21 and banning bump stocks, which can be used to speed firing from semi-automatic rifles. A gunman reportedly used bump stocks last year when he allegedly killed 58 and injured more than 800 at a Las Vegas concert.

“This is the essence of bipartisanship,” said Jackson, a Charlotte Democrat.

Rep. Marcia Morey (D-Durham)

The package would also include a “red flag” provision, said Morey, a retired district court judge from Durham, allowing courts to hold a hearing to determine if a “dangerous” individual’s guns should be taken away.

Morey compared her proposal to existing court protections for victims of domestic violence, who can petition courts to seize weapons and impose restraining orders on their alleged abusers.

Monday’s press conference followed several days after K-12 students nationwide walked out of their classrooms to protest gun violence. 

Many of the ideas put forth Monday mirrored those made by Democratic Gov. Roy Cooper last week, although lawmakers said they will also move to expand funding for school counselors and psychologists. It was unclear how much additional funding legislators would seek at press time.

McKissick said North Carolina employs one school psychologist for every 2,000 students. Nationally, schools have about one psychologist for every 700 students.

Meanwhile, he said the state has just one school counselor for every 375 students, compared to the national ratio, which is about one for every 250 students.

Lawmakers said they would also support an anonymous tip line statewide that would allow individuals to report persons that they believe to be dangerous.

Finally, the package would direct the state’s Center for Safer Schools to study whether additional school resource officers are need in K-12 schools.

Asked why the proposals would not include mandatory wait times for firearms purchases, McKissick said Democrats were hoping to build a consensus. A proposal on wait times would have generated “substantial pushback,” he said.

“You want to try to come up with issues that hopefully will get that bipartisan support.”

Bipartisan support will be pivotal for reforms in the Republican-dominated legislature. However, state Republicans have been reluctant to back any enhanced gun control measures since the Parkland shooting.

House Speaker Tim Moore, a Cleveland County Republican, assembled a select panel on school safety to consider similar matters. That committee is scheduled to hold its first meeting Wednesday morning.

Meanwhile, at least one GOP lawmaker has joined in on calls to arm teachers, an idea that’s receiving a mostly icy reception from the state’s educators, according to an Elon University poll this month.

Environment, Legislature

Ethics complaint vs House Speaker Tim Moore alleges he sought preferential treatment from DEQ

N.C. House Speaker Tim Moore (Photo: NCGA)

Campaign for Accountability, a Washington, D.C., watchdog group, has filed an ethics complaint against House Speaker Tim Moore, alleging that in 2014 and 2015, he tried to receive preferential treatment from state environmental regulators.

In its letter to the state ethics commission, the group said that Moore allegedly violated state ethics law because he used his public position for financial benefit and that he did not avoid conflicts of interest.

Moore could not be immediately reached for comment.

According to emails included in the complaint by Campaign for Accountability, Moore, an executive in Southeast Land Holdings, LLC, asked the Underground Storage Tank division at the NC Department of Environmental Quality to waive penalties and grant extensions related to the removal of underground diesel tanks at a property the company owned in Siler City.

The purpose of the foot-dragging was to put the financial and liability onus for the environmental clean up on future property owners.

Southeast Land Holdings had purchased the 8.9-acre former poultry processing plant at a bankruptcy sale in November 2013, according to Chatham County land records. Southeast sold the property for $550,000 in September 2016.

From the chronology laid out in the emails, it appears that Southeast Land Holdings stonewalled for more than eight months on cleaning up the corroding tanks, one of which contained diesel about 5 inches deep.

When these tanks leak — and nearly all of them do — they can allow contaminants such as diesel and gasoline to enter the groundwater. Depending on the area, contaminated groundwater can then pollute drinking water wells or lakes and streams.

On Aug. 11 2014, the UST Division conducted an compliance inspection, based on a complaint from a neighbor of the property who said they smelled fumes. Ten days later, the UST Division issued Southeast a notice of violation, in part for failing to “permanently close two substandard UST systems.”

The next month, DEQ emails show that Moore requested a meeting with two people in UST Division, including its chief, as well as a waiver of late payment penalties totaling $2,520. DEQ granted the waiver, which is not unusual.

Art Barnhardt, the UST Section Chief, wrote to Moore, who had indicated to DEQ that a new property owner could use the tanks — effectively allowing Southeast to absolve itself of any responsibility for them.

“You indicated that perhaps the new owner could possibly continue to use the tanks … That does not appear to be a viable option in this case … It is doubtful a new owner would want to utilize a system of this age and status.”

In November 2014, DEQ gave Southeast a 30-day extension to close and remove the tanks.

However, by the following April, Southeast had still failed to hold up its end of the deal; Moore called UST Division asking for yet another extension “to find a buyer for the property.” Southeast did not remove the tanks as required, although it did pay tank fees.

In early May 2015 –18 months after Southeast purchased the property and nine since the notice of violation — the tanks still had not been closed.

“The LLC seems to have delayed the environmental assessment pending a sale of the property,” wrote Linda Culpepper, then DEQ’s director of waste management. “A pending sale should not delay an assessment.”

Then-Assistant DEQ Secretary Tom Reeder, who was copied on internal emails, appeared reluctant to let Moore and Southeast off the hook. Reeder directed Culpepper to “handle this case just like it would any other one with similar circumstances.”

Also in May 2015, Moore told DEQ that the diesel had been removed from the tanks. By cleaning out the tanks (but not removing them), Southeast became eligible for DEQ grants to help cover the cost.

Southeast said it had a prospective buyer that agreed to remove the tanks, prompting Moore to request yet another extension — 90 days. DEQ approved the extension.

That buyer fell through, but in September 2016, Southeast sold the property to Mountainaire Farms. And that fall, Southeast filed a claim with DEQ to recoup $22,4000 in clean up costs for the tanks.