Environment

Illegal oil and gas commission postponed, one statement of economic interest still missing

Jim Womack (File photo: Lee County government)

The state oil and gas commission, which had planned to meet, albeit illegally, in Sanford tomorrow, has been postponed for at least a month. Jim Womack, whose chairmanship is in dispute, told Policy Watch that he decided to cancel the meeting because the state ethics commission didn’t have adequate time to review the members’ statement of economic interest reports.

“We want to make sure there’s no legal challenge” to the meeting Womack said. The meeting has been postponed until late October or early November.

The ethics commission must review and approve SEIs, as they’re known, before a board or commission can pass rules, take action or even call a quorum. Five of the six annual reports, including Womack’s, had been filed late. Stanford Baird filed his report yesterday afternoon after Policy Watch reported it was missing. Charles Taylor has yet to file his, according to the ethics commission website.

However, Lee County Manager John Crumpton said that last night county commissioners voted to make sure the oil and gas meeting was legal before allowing it to be held. Crumpton said he was still investigating the legality of the meeting when Womack decided to cancel it.

As Policy Watch reported yesterday, Chief Deputy Secretary of the Environment John Nicholson sent a letter to Womack questioning both the legality of the meeting his legitimacy as chairman of the nine-member oil and gas commission. Womack had originally been appointed to the commission by Sen. Phil Berger. But after a state Supreme Court case, the legislature created a new commission with new appointees. Womack was not one of them.

Womack told Policy Watch that Nicholson is wrong, and that he was “validly appointed by Sen. Berger.”

The governor appoints four members and the House and Senate leadership each appoint two.

According to a roster of the oil and gas commission, in July 2016, House Speaker Tim Moore appointed Ray Covington — who told NC Policy Watch yesterday he is no longer serving on the commission — and Karen Glaser. Senate President Pro Tem Phil Berger appointed John Lucey in August 2017. He did not reappoint Womack.

Within days of leaving office last December, former Gov. McCrory appointed Randall Williams, Charles Taylor, Ronda Jones, Stanford Baird and Victor Gaglio to the commission. Williams resigned two weeks ago, after taking a job with the state of Missouri in March.

Environment

NC appeals court rules against NC WARN in Greensboro solar power case

NC WARN installed a 5.25-kilowatt solar system on the roof of Faith Community Church and sold it the electricity as part of a leasing agreement. The state appeals court ruled NC WARN can’t sell the power because it in doing so it is acting as a public utility. (Photo: NC WARN)

The nonprofit environmental group NC WARN was acting as a public utility when it provided solar power to a Greensboro church, the NC Appellate Court ruled 2-1 today.

The decision favored Duke Energy, Dominion Energy and the NC Public Utilities Commission public staff, which had argued that NC WARN’s financial arrangement was infringing on the utility companies’ regulated monopoly.

Judges Hunter Murphy and Donna Stroud concurred on the ruling; Judge Chris Dillon dissented.

As Policy Watch reported in March during the original court hearing, NC WARN had entered into a “power purchase agreement” with Faith Community Church in Greensboro. The church leases a solar power system from the nonprofit by paying 5 cents a kilowatt hour for solar-generated electricity.

NC WARN stopped selling power to the church while the court weighed its decision.

“In this case, NC WARN was clearly and unlawfully acting as a public utility without following the rules of being a public utility,” said Duke Energy spokesman Randy Wheeless.

Jim Warn, executive director of NC WARN, said third-party financing arrangements such as this one are ‘in the public interest and are in accord with state policy promoting clean, affordable energy.”

The question before the court was whether NC WARN produced electricity for “the public” in doing so for the church. State statute doesn’t allow third parties to sell electricity to the public because it infringes on the regulated monopoly that is in place. However, House Bill 589, recently passed by the legislature, does allow for limited third-party leasing, which had previously been illegal.

Judge Murphy, wrote the majority opinion, stated that if NC WARN were allowed to generate and sell electricity to “cherry-picked nonprofit organizations” in North Carolina, “that activity stands to upset the balance of the marketplace.”

“Specifically,” Murphy went on, “such a stamp of approval by this court would open the door for other organizations like NC WARN to offer similar arrangements” to other nonprofits or commercial enterprises. That “would jeopardize regulation of the industry itself.”

Judge Dillon, though, disagreed. He wrote that NC WARN wasn’t acting as a public utility because one church doesn’t meet the definition of “public.” Nor does the nonprofit’s financial arrangement of leasing the system — basing it on a kilowatt hour basis rather than a flat monthly rate, Dillon wrote.

He compared the NC WARN arrangement with a hardware store that rented a portable generator based on the power it used rather than only a daily rate.

The NC WARN viewed its appeal as a test case, Warn said, “a challenge to Duke Energy’s blockade against competition from companies that install solar systems on rooftops with little or no up-front cost to the customer. Such financing arrangements have been a key to the growth of rooftop solar in many other states.”

Warn said the organization is “strongly considering” appealing the case to the North Carolina Supreme Court.  

NC WARN Appeals Court by Lisa Sorg on Scribd

Environment

Chemours’s lawyers fight back against DEQ; let’s parse the arguments

Chemours’s attorneys have accused the NC Department of Environmental Quality of disregarding “even the most basic rudiments of fair play and process,” when it required the company to stop discharging Nafion into the Cape Fear River.

Travis Fain at WRAL reported Chemours’s response and posted the letter yesterday evening.

In the letter dated Sept. 8, Chemours claimed DEQ didn’t have the authority to issue a cease-and-desist order over Nafion, which the agency and the EPA recently detected in the river as part of its GenX investigation. That order, issued on Sept 5, states that the agency will consider suspending the company’s wastewater discharge permit if it doesn’t stop discharging the compound.

Suspension of that permit would essentially shut down the plant.

Chemours to @NCDEQ: Not playing fair Click To Tweet

Chemours contends there is no technical or scientific evidence that the discharges of “trace level” discharges of Nafion into waterways present a public health emergency — and that the order is not justified.

It is true that few publicly available health studies have been conducted on Nafion or GenX; state health officials were able to get just two — one of them proprietary — on GenX from the EPA.

But DuPont, the parent company of Chemours, has not always been forthcoming about the toxicity of its products. In the case of C8, a precursor and chemical cousin to GenX, DuPont discharged that compound into the Ohio River and other waterways in West Virginia, even though it had in-house health studies showing its toxicity to people.

Meanwhile, many people exposed to C8 developed cancer even though DuPont claimed it was safe. Only through a 2005 class-action lawsuit were those health studies revealed — studies key to DuPont losing the $343 million suit.

The Chemours letter also said that DEQ and the EPA  have known the company has been discharging Nafion into surface waters since 2002; Chemours said it again disclosed that information in a scientific paper circulated to DEQ in 2015.

The letter did not contain supporting documents for the allegation. However, Chemours does have a history of providing information on some of its products to DEQ, albeit some documentation has been either incomplete or lacking context.

According to DEQ documents, DuPont met in August 2010 with agency staff to discuss its phase-out of C8 by 2015– a requirement of a federal consent order emanating from the class action suit. The replacement: GenX.

The compound is chemically very similar to C8.

“DuPont’s planned environmental exposure control technologies will reduce the potential for environmental release and exposure,” of GenX, DEQ minutes from the meeting read.

We now know that Chemours’s technologies to control the release of GenX either failed or were not implemented until this year.

Read more

Environment

DEQ delays water quality decision, dealing setback to Atlantic Coast Pipeline

Just a week ago, the utility companies behind the Atlantic Coast Pipeline had urged federal regulators to fast track their application, citing “contractual obligations.” Their letter claimed that “the state’s actions for water quality certifications and other state requirements are proceeding and align with our anticipated construction schedule.”

Apparently, that was merely wishful thinking.

The NC Department of Environmental Quality has delayed by three months its decision on whether to grant a 401 water quality and buffer permit to the owners of the ACP. In a letter to the ACP, state environmental officials laid out in two pages myriad missing information, some of it very basic: construction drawings, erosion control plans, a calculation of cumulative impacts and stream restoration plans.

DEQ had originally  set a deadline of Sept. 19 for the decision.

Southeast Energy News first reported the story this morning.

Given the ACP’s application history, it’s not surprising that vital data has still not been provided. Both the draft and final environmental impact statements, issued by the Federal Energy Regulatory Commission, contained large information gaps. In other cases, such as the environmental justice section, the issue was given short shrift, as if it were a box to be merely checked off.

The public has been overwhelmingly opposed to the project for environmental, safety and social justice reasons. Only economic boosters, local governments and the occasional industry front group in North Carolina have spoken for it.

The ACP’s letter to FERC noted that pipeline contractors wanted to begin tree-cutting in November. But in its letter to the ACP, state environmental officials warned that “you have no authorization” under state and federal regulations “for this activity and any work done within waters of the state or protected riparian buffers” would violate state law.

 

 

ACP RequestForAddInfo 09-14-17 by Lisa Sorg on Scribd

Environment

As if GenX in the water wasn’t troubling enough, now it could be in the air

These monitoring groundwater wells at the Chemours plant show GenX levels as high as 39,500 parts per trillion. The wells are not used for drinking, but levels of the perfluorinated compounds — PFOA and PFOS — exceed state groundwater standards of 2,000 ppt (listed as 2 parts billion). State environmental officials have issued a notice of violation to Chemours for these exceedances. (Map: NCDEQ)

 

When the groundwater tests for GenX came back, DEQ staff weren’t particularly surprised that nearly every monitoring well around the Chemours plant was contaminated with high levels of the compound. After all, that’s the source of GenX in the Cape Fear River and drinking water downstream.

But what did surprise them is that one of the 13 contaminated wells is uphill from the facility. Since the flow of groundwater doesn’t defy gravity, some force had to put it there.

State environmental officials now think that GenX is traveling through the air.

From the air, GenX is “then entering the soil and the groundwater,” Assistant Secretary for the Environment Sheila Holman, told Policy Watch at a public information session in Bladen County.

This process is known as “volatilization” and “atmospheric deposition.” Essentially, a chemical or compound, such as GenX, can vaporize from water and then travel through the air before falling onto the soil. It’s not unusual: For example, some pesticides can volatilize, as can dry cleaning solvents containing the cancer-causing compound PCE.

Detlef Knappe, the NC State University scientist who found GenX in the Cape Fear River and Wilmington’s drinking water, said it’s quite possible that the compound is being transported through the air. He noted that in Parkersburg, West Virginia, where DuPont had discharged C8, a cousin to GenX, into the Ohio River and other streams, the chemical was found in “disconnected waters” miles apart.

DEQ plans to monitor the air near the plant; detection of the compound requires special equipment.

Meanwhile, today state environmental officials will begin sampling the private drinking water wells of 41 households that are adjacent to the Chemours facility for GenX and two related compounds. That sampling area is likely to expand; there are at least 97 households on private wells within a mile of the plant. Households beyond that boundary can request that DEQ sample their wells.

Results will be available in four to six weeks.

Last night at St. Pauls Middle School, crowds of people swarmed around maps and pointed at their homes in relation to the sampling locations within a mile and a half of the plant. DEQ had deployed their top officials — section chiefs, division heads or their deputies — to answer questions, indicating the seriousness of the situation.

One man named Ed listened as DEQ discussed the sampling results. Ed remembers when Chemours — then DuPont — built the plant near the Cumberland/Bladen county line in the 1960s. “I watched them punch those wells,” he said.

Chemours is offering bottled water to people living within one mile of the facility. It also implemented its own sampling plant of 30 drinking water wells in that area. However, Chemours did not provide a sampling plan to the state for review — important because polluting industries have a history of testing where they know the contaminants won’t be.

Chemours subsequently gave the agency that plan, said DEQ Communications Director Jamie Kritzer. He added that the state will review the company’s testing protocol and results to ensure they were conducted correctly.

Ed lives outside the sampling well boundaries, but his granddaughter lives closer to the plant, and her grandmother resides near the Chemours entrance. Because his granddaughter lives in a mobile home, “she can move,” Ed said. But the grandmother lives in a house, which, given the circumstances, would be nearly impossible to sell for its full value. “She can’t leave,” he said.