Environment, News

With House Bill 189 on the agenda, today’s River Quality Committee meeting will be long — and yes, interesting

Bring snacks and a thermos of coffee, because today’s House Select Committee on River Quality meeting could be epic.

Starting at 9:30 a.m. and scheduled for four and half hours, the meeting will cover the latest developments — including enforcement actions against Chemours– on the various GenX spills and related spikes in the water near the Cape Fear Public Utility Authority treatment plant.

The committee will also hear from UNC Wilmington and the CFPUA on their work since the passage of House Bill 56 last August. UNC-W received a $250,000 appropriation in that legislation, and the CFPUA got another $185,000 to study the behavior of perfluorinated compounds in water and treatment methods to remove it.

The appropriation was controversial because a month earlier Gov. Roy Cooper, the Department of Environmental Quality and the Department of Health and Human Services had requested $2.3 million in funding to tackle the GenX crisis; GOP lawmakers rebuffed them.

The whereabouts of the state’s high-resolution mass spectrometers, difficult to say and even more difficult to use, should be more interesting than it sounds. The Senate version of House Bill 189 failed to appropriate any money to DEQ to purchase the very sensitive equipment, which is necessary to test for GenX and other emerging and unknown compounds. Instead Senators gave $2 million to the NC Collaboratory, a think tank at UNC Chapel Hill created by the legislature, to find these spectrometers and the personnel to operate them within the UNC System.

However, considering the human health issues at stake,  it’s unclear if the EPA would approve of say, a first-year grad student testing drinking water samples in a high-resolution spectrometer. There could be legal and liability issues if, for example, the tests were run incorrectly or failed to adhere to other quality controls.

And, it turns out, at least two state agencies have high-resolution spectrometers, although DEQ isn’t one of them. (The DEQ water sciences lab has been described as “looking like it’s from 1985.”) The Department of Agriculture has three, but they are being used to test for pesticides in human and animal food. If DEQ were to borrow or repurpose the equipment, then the Agriculture Department couldn’t do its work.

DHHS has seven such spectrometers: six are being used by toxicologists to test for the presence of pharmaceuticals in people who have died, presumably of causes related to the ingestion of legal drugs. The seventh high-resolution spectrometer is supposed to be used solely to test for chemical warfare agents in the water. DHHS received a grant from the EPA in 2011 for this spectrometer, with its uses very specific and defined.

DEQ would have to ask the EPA for permission to repurpose the spectrometer for GenX and emerging compounds. If the EPA decides the equipment is no longer necessary to test for bioterrorism threats — a Big If — then DEQ could access the machine. But the agency still needs roughly $480,000 in recurring funds to pay for the personnel to be certified on the equipment and to devote their time to testing for these compounds in the rivers and lakes, statewide.

The final agenda item is a discussion of House Bill 189. the first version unanimously passed the House, and then was upended by the Senate, which adjourned without voting on the measure. Then they rewrote much of the bill, passed it, only to — touché — be given the same treatment by the House, which didn’t vote on it.

By the time the short session convenes on May 16, it will be nearly a year since the Star-News broke the story of GenX in Wilmington’s drinking water. And in that 11 months, no substantive legislation has passed that could remove the chemical and other emerging contaminants from drinking water.

The meeting will be held in Room 643 of the Legislative Office Building, and the audio will be streamed online.

Environment

Loopholes in the draft coal ash landfill rules; two public hearings scheduled this week

Duke Energy’s Mayo plant near Roxboro (Photo: Duke Energy)

The public hearing started with an apology and without many members of the public.

Only four days before, the NC Department of Environmental Quality had published a notice on its website that it would hold the first hearing on 89 pages of draft rules governing coal ash landfills. It wasn’t surprising then that the seats in the Person County Office Building in Roxboro last week were largely occupied by DEQ employees. 

“I apologize,” said Ellen Lorscheider, chief of the Division of Waste Management, who attributed last-minute changes and legal review for the short notice. “We wanted to take public comments now” to meet future deadlines set by the Environmental Management Commission to put the rules in place, she added.

However, the notice requirement is 15 days, said Megan Kimball, attorney with the Southern Environmental Law Center. She questioned whether DEQ was “serious about accepting public comment,” considering the late notification.

The second and third hearings are scheduled for this week:

  • Tuesday at the Myers Center Meeting Rooms at Gaston College, 201 Hwy. 321 South, Dallas;
  • Thursday U-170 building at Cape Fear Community College, 411 N. Front St., Wilmington.

Both meetings start at 6 p.m.

The draft rules about coal ash landfills incorporate state law with federal Coal Combustion Rules, passed by Congress in 2016 as part of the WIIN Act.  (Coal ash impoundments are different than landfills. The former are unlined, seeping pits, regulated under the state’s Coal Ash Management Act. The latter are lined and have leachate collection systems, but by no means environmentally foolproof.)

The CCR rules allow states to regulate their own coal ash landfills, as long as their rules are at least as stringent as the EPA’s. These draft landfill rules cover activities related to construction, design, closure, recordkeeping, monitoring, recycling and post-closure. However, they do not apply to clean up or enforcement, said Ed Mussler, permitting branch supervisor in the Waste Management Division.

Several provisions in the draft rules appear to contain loopholes that could be exploited by Duke Energy or any owner of a coal ash landfill, as it builds new facilities.

  • Coal ash landfills can be expanded. The landfill owner does have to apply for a permit amendment if the tons of waste increase by greater than 10 percent; if the landfill boundaries expand from the original site plan (which could mean the landfill could be built higher but not wider); and if the landfill has a new owner.

And because of House Bill 56, passed last year by the legislature, landfills can qualify for “life-of-site” permits. Previously there were regularly schedule permit renewals, which allowed for public comment on the landfill and its operator. The opportunity for public participation in the permitting process is now sharply reduced.

  • The landfill permittee shall “take all reasonable steps to minimize releases to the environment,” the draft reads, “and shall carry out such measures as are reasonable to prevent adverse impacts on human health or the environment.”

However, “reasonable” is not defined and subject to interpretation.

  • The rules do require a site characterization study. It would include mapping businesses, schools, homes, public and private water supplies, zoning, other areas of contamination, and floodplains, among other features.

There is no requirement for an environmental justice analysis to determine if communities of color or low-income neighborhoods would be disproportionately affected. In addition, the rules require new or expanded landfills (in width, not height) to establish only a 300-foot buffer between the facilities and property lines for monitoring purposes. That is equivalent to the length of a football field.

New landfills require only a 500-foot buffer between it and existing homes and wells. A 100-foot minimum is required between these landfills and surface waters.

  • Landfill permit holders aren’t required to get approval from local governments to place a facility. Presumably, though, a landfill would have to comply with zoning regulations.

The draft rules do not address coal ash contamination that has seeped from the unlined impoundments into the groundwater and drinking water; the Coal Ash Management Act regulates the groundwater impacts.

Hope Taylor, executive director of Clean Water for North Carolina, said she is concerned that some of the draft rules for landfills could be applied retroactively to the impoundments. “I’m concerned about the water supply and increasing contamination. We need to get the ash out of the groundwater.”

Duke Energy plans to dewater the impoundments at its Mayo and Roxboro plants, line and cap them, leaving the coal ash in place. The utility maintains that excavation would create more environmental problems. It would also be very expensive.

“The effluent runs through my property,” said Doyle Peed, who owns 56 acres behind the Mayo plant. “It’s not proper to store the coal ash. It needs to be removed. We need to make sure there are no loopholes so old ash pits can contaminate forever.”

Environment, Trump Administration

Ex-DEQ chief Donald van der Vaart could lead EPA Council on Environmental Quality

Donald van der Vaart, former DEQ secretary, could lead the
EPA’s Council on Environmental Quality. (Photo: DEQ)

Donald van der Vaart, the controversial former NC DEQ secretary, is a leading candidate for a top EPA post, E&E News reported yesterday.

Van der Vaart, who long had his sights on an EPA job, has the support of conservatives who want to see him lead the agency’s Council on Environmental Quality.

CEQ wields power over several key environmental laws. It oversees  the implementation and interpretation of NEPA, the cornerstone of environmental protection. NEPA — the National Environmental Policy Act — requires federal agencies to assess the environmental, social and economic impacts of certain projects. For example, a new interstate would trigger an NEPA review, as would opening public lands to energy drilling.

CEQ also develops and recommends national policies to the president that promote the improvement of environmental quality.

E&E News quoted energy lobbyist Mike McKenna as saying, “Don is a well-thought-of name by people who matter in the administration.”

In what’s likely a promising sign to some conservatives, van der Vaart appears willing to review EPA’s endangerment finding on greenhouse gases, an anthology of climate science that forms the legal justification for regulating heat-trapping emissions. He argued that the finding should be constantly updated as science progresses — E&E News

Van der Vaart has a long history of opposing tighter environmental regulations. As DEQ Secretary, his vision for the department was to be more “business- and customer-friendly,” meaning that those interests often  trumped environmental protection. In November 2016, after Donald Trump was elected president, van der Vaart sent him a letter calling for the disbandment of the EPA — a view Trump also shared. Van der Vaart subsequently made the short list of nominees to be deputy administrator to Scott Pruitt, a position that later went to Andrew Wheeler, whom Pruitt knew from their time in Oklahoma. (Pruitt was attorney general; Wheeler worked for US Sen. Jim Inhofe.)

Van der Vaart, who is skeptical of humankind’s role in climate change, had worked in the Division of Air Quality. He then served under Gov. Pat McCrory for two years. A political appointee, van der Vaart then demoted himself back to an air quality post in order to protect himself from being fired when Roy Cooper became governor.

Van der Vaart resigned from DEQ last November after current Secretary Michael Regan placed him on investigative leave. Van der Vaart had co-written an opinion piece in a national environmental law journal supporting the rollback of a key air quality rule — which conflicted with the current administration’s view — and he had accepted a position on the EPA’s Science Advisory Board. After EPA Administrator Scott Pruitt essentially cleared the SAB decks of independent scientists, he filled it with industry representatives and conservative state regulators, like van der Vaart.

While he has the support of several key allies, van der Vaart has not officially been nominated. The Trump administration is still stinging from the failed nomination of Kathleen Hartnett White. The former head of the Texas Commission on Environmental Quality, she had made several controversial comments about climate change and carbon dioxide. The Trump administration withdrew her nomination earlier this month.

Now van der Vaart could achieve one of his career goals. E&E News quoted him as saying, “It would be a thrill for somebody like me who’s been in this field for a long time.”

 

Environment, Governor Roy Cooper, Legislature

Gov. Cooper’s office: Lawmakers have “imperiled” pipeline agreement by reallocating funds

At a public hearing in Garysburg, Tom Betts, a supporter of the Atlantic Coast
Pipeline, echoed the utilities’ promises that the project will bring economic
development and jobs to eastern North Carolina. However, privately,
local economic developers were concerned those claims were overblown.
(Photo: Lisa Sorg)

In a letter to lawmakers today, Kristi Jones, chief of staff for Gov. Roy Cooper, implied that a $57.8 million mitigation fund for the Atlantic Coast Pipeline could be in jeopardy now that lawmakers have reallocated the money from its original purpose.

“It’s unclear if North Carolina will receive these funds, denying businesses and farms in eastern North Carolina access to natural gas and much-needed economic development,” read the letter, addressed to Republicans Sen. Bill Rabon and Rep. David Lewis.

Divided between Duke Energy and Dominion Energy, the money was to be used to offset environmental impacts from the pipeline’s construction, as well as economic development and renewable energy projects in the eight counties along the route: Northampton, Halifax, Nash, Wilson, Johnston, Cumberland, Sampson and Robeson.

But earlier this week, lawmakers passed House Bill 90, hodgepodge legislation that tied a critical class-size provision to the diversion of the mitigation funds to school districts in the affected counties. Gov. Cooper allowed the bill to become law without his signature.

Dominion Energy co-signed a memorandum of agreement with Cooper’s office; the utility could not immediately be reached for comment.

The fund, though, has been controversial among lawmakers and environmental advocates who view it as financial exchange for state approval of a key water quality permit. The fund would have been voluntary and non-binding. And even with financial help, it’s unlikely that industry in eastern North Carolina could afford the millions of dollars to hook onto the pipeline.

Nor are there assurances that the cost of the natural gas would be affordable, an important point since these counties are among the poorest in the state.

In the letter, Jones also explained the origin of the fund. The details confirm what pipeline opponents have been cautioning for the past 18 months: That despite the utilities’ and economic developers’ public claims, there was private concern that the economic prospects of the project was overblown.

It is also unclear, based on Jones’s letter, whether ratepayers or shareholders would cover the cost of the mitigation fund. If ratepayers were to bear the financial burden — in addition to the $5.5 billion cost of the project — that would further undermine the claim that the pipeline would help eastern North Carolina.

Jones wrote that discussions began in 2017  — although she does not say what month — when “eastern North Carolina economic developers and others expressed concerns about whether the pipeline would bring the economic growth it promised.”

Cooper and his administration were also concerned about the pipeline’s ability to revive eastern North Carolina’s economy as well as the environmental impacts to air, water and forests along the route, Jones wrote. She added that the fund was established independent of permit approvals by the NC Department of Environmental Quality.

The fund would have been administered by a third-party selected by the governor, although Jones wrote that Cooper would not decide what projects would be funded. Distribution of the money to environmental and economic projects would have been based on reviews of applications by “qualified government entities and nonprofits.”

Examples of those entities, Jones wrote, were the Rural Infrastructure Authority and the Clean Water Management Trust Fund, both of which currently award grants to similar types of projects. Jones told lawmakers that Cooper would have signed an executive order that would have made the fund subject to Public Records and Open Meetings Laws, as well as the State Ethics Act.

 

Kristi Jones/Roy Cooper letter by Lisa Sorg on Scribd

Courts & the Law, Education, Environment, News

Gov. Roy Cooper won’t veto class size, Board of Elections, pipeline omnibus

Gov. Roy Cooper addressed the class size bill Wednesday
at the Executive Mansion (Photo taken by Billy Ball).

Gov. Roy Cooper says he won’t veto an omnibus bill that eases North Carolina’s class size crisis, despite several parts of the bill that he calls “political attacks and power grabs.”

“Our kids in schools are too important,” said Cooper. “But we do need to talk about the bad parts of the bill.”

The legislation, which he characterized as “a sigh of relief that came too late,” phases in class size caps for grades K-3 over the next four years and offers recurring funding for arts, music and physical education teachers that might have been crowded out by districts’ search for cash to fund new classroom educators.

“The class size chaos that this legislature started caused agony and anger and angst across this state for no reason,” said Cooper.

Meanwhile, Cooper said the deal only “partly” resolves the state’s class size headache, pointing out that—as Policy Watch reported today—the accord comes with no funds for school districts’ construction needs arising from the state mandate.

Cooper said school superintendents were “wringing their hands not knowing what to do” over the infrastructure issues. Many districts will have to spend millions to find new classroom space.

“I don’t think I’ve ever seen school superintendents that desperate,”said Cooper. “And these legislators let that problem fester for two years.”

Additionally, the state continues to grapple with a teacher shortage that may vex local school leaders’ efforts to fill more classrooms, a point brought up by the governor Wednesday.

“A smaller class size doesn’t do much good with no teacher in it,” Cooper said.

Cooper’s decision likely has little impact on the bill’s fate, considering the GOP-dominated General Assembly has a veto-proof voting majority on the legislation.

Republicans described the package bill, delivered as a conference report on House Bill 90 last week, as pulling together multiple, urgent issues, including a still-brewing court battle over an elections and ethics board merger, as well as a $58 million environmental mitigation fund that Cooper announced shortly after the pipeline received its permits.

GOP lawmakers say Cooper doesn’t have the authority to oversee that fund. They also suggested the Democratic governor negotiated a “quid pro quo” arrangement to secure the pipeline, which Republican legislators also support.

Cooper said Republicans’ actions “imperiled” that mitigation fund, arguing that he wasn’t sure what would become of the funding now. Legislators say they want to spend the cash on school districts along the pipeline’s route.

The governor also chided GOP legislators for another attempt to merge state elections and ethics boards, a move seen as curbing Cooper’s appointment powers. The state Supreme Court ruled in Cooper’s favor in an ongoing lawsuit over the boards, and a lower court is expected to decide soon how to proceed.

Cooper said this component of the bill is an “unconstitutional scheme.”