Environment

In veto, Gov. Cooper calls HB 56 “cynical legislation that does nothing to protect drinking water”

 

Gov. Roy Cooper toured Pender County’s water plant in late July. Pender County is among the areas affected by the GenX drinking water crisis in the Cape Fear River. (Photo: Gov. Cooper’s Medium page)

On the House floor in the final minutes of the August session, Democratic Rep. Darren Jackson had a crystal-ball moment. He called out his Republican colleagues for their last-minute, controversial appropriation to the Cape Fear Public Utility Authority so it could” urgently” address the GenX drinking water crisis — an urgency lost on the utility for more than a year.

“If you want this done quickly, wouldn’t you ask the governor if he could support it? Did you ask?” Jackson said, noting that if Gov. Cooper vetoed House Bill 56, an override vote was six weeks away — hardly the definition of urgent. “If not, it’s about covering your behind. You can go home and say you did something when you really didn’t.”

Today Gov. Cooper vetoed did just that, calling HB 56 “cynical legislation that fails to address the concerns of families in the Cape Fear region and does nothing to protect drinking water statewide going forward.

“It gives the impression of action while allowing the long-term problem to fester,” the governor went on. “And it unnecessarily rolls back other environmental protections for landfills, river basins, and our beaches.”

Residents in the Cape Fear region had told lawmakers on the Environmental Review Commission in late August that they had no faith in the utility and not to fund it, but rather NC DEQ. At that same meeting, and other public forums, NC DEQ Secretary Michael Regan had emphasized that his agency needed money — $2 million — to deal not only with the drinking water issues in the Cape Fear basin, but statewide.

The Haw, Catawba, Neuse, French Broad are among just a few of the waterways plagued by pollution and in some cases, newly discovered contaminants.

It gives the impression of action while allowing the long-term problem to fester Click To Tweet

“The urgent need to protect our state’s drinking water is not an issue that will soon go away,” Cooper wrote in his veto message. “There are no short cuts, and the presence of GenX in groundwater in Fayetteville makes clear the solution cannot be limited to Wilmington.”

Cooper’s reference to Fayetteville is in response to DEQ’s recent findings that groundwater wells near the Chemours plant near the Bladen/Cumberland County line are contaminated with high levels of perfluorinated compounds like GenX and C8. Yesterday, the Fayetteville Observer reported that residential drinking wells near the plant contained levels of GenX higher than the health goal of 70 parts per trillion.

House Bill 56 was a a tortured piece of legislation even before a last-minute political maneuver. It included a repeal of a plastic ban along the Outer Banks, a potential weakening of riparian buffer protections, and the funneling of $435,000 to the Cape Fear Public Utility Authority and UNC Wilmington, ostensibly to address the GenX drinking water crisis.

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Courts & the Law, News

Superior Court judges hire lobbyists; merit selection plan could be unveiled by end of October

Tracy Kimbrell and Nathan Babcock

The North Carolina Conference of Superior Court Judges hired two lobbyists this week to be their “eyes and ears” in Raleigh.

The lobbyists are Nathan Babcock and Tracy Kimbrell, both of the Parker Poe law firm. The president of the Conference, Superior Court Judge Joe Crosswhite, who serves district 22A in Alexander and Iredell counties, said the lobbyists weren’t hired in response to any particular bill or policy decision.

“There’s a lot of talk in Raleigh, and we just needed somebody to be our eyes and ears,” he said in a phone interview Wednesday. “Our judges, we’re out working all the time.”

He added that the Conference hired the lobbyists on a short-term basis, through the end of October. When the group, which has about 120 members, meets again next month, it will decide how to proceed.

The move comes a little over a month after the North Carolina Association of District Court Judges hired two well-known lobbyists, Charles Neely Jr. and Richard Zechini, of the Williams Mullen law firm. That group hired lobbyists in reaction to a judicial redistricting bill that is currently making its way through the House.

Crosswhite said House Bill 717 was part of the reason for the Conference hiring lobbyists, “but that was not all of it at all.”

Before joining Parker Poe, Babcock was the political director for the North Carolina Chamber, where he successfully lobbied for comprehensive legislative priorities including education, tax reform, tort reform, unemployment insurance reform and transportation funding modifications, according to his biography.

Kimbrell served as general counsel for Senate President Pro Tem Phil Berger from 2010 to 2013. In 2012, she served as the acting chief of staff in the Senate leader’s legislative office.

She also previously worked at the General Assembly in the office of the Senate Minority Leader, researching and monitoring legislative matters on behalf of the Senate Republican Caucus. She later worked on a Republican gubernatorial campaign.

Kimbrell confirmed in an email Wednesday afternoon that she and Babcock did register as lobbyists for the Conference and said neither had a comment to offer at this time.

Judicial redistricting isn’t the only courts-related agenda action item on the General Assembly’s schedule this year. The Senate has been floating a potential merit-selection plan to various groups over the last couple months.

Crosswhite confirmed Wednesday that the Conference is scheduled to meet with Berger’s chief of staff, Jim Blaine, next week to hear a presentation on merit selection. He said it’s something the Conference has talked about but wanted to wait for a lobbyist to get on board before meeting with Blaine.

He also praised the Senate for having a candid process as merit selection is considered.

“They have been very responsive and very helpful and very willing to sit down and talk with us about it,” Crosswhite said.

The Conference has not yet adopted a position on merit selection and Crosswhite said it will wait to see what the actual proposal is before doing so. He added that it’s expected the Senate will unveil its merit selection process by the end of October.

Rep. Justin Burr (R-Stanly, Montgomery) indicated last week that the General Assembly could pass new judicial maps and put a merit selection constitutional amendment on the ballot, which would allow voters to decide which process would go into effect.

Crosswhite reiterated that the Conference is not a political organization.

“We needed help and that’s what this is,” he said of hiring lobbyists. “October will be an active month.”

News

N.C. Historical Commission meets Friday amid Confederate controversy

A reminder: the N.C. Historical Commission will hold its fall meeting Friday.

On the agenda: Requests to Relocate “Objects of Remembrance.”

Under a 2015 law the board must approve moving or removing historical monuments like the Confederate statues that have been at the center of a renewed public controversy for months.

In the wake of deadly violence at a white supremacist rally over a Robert E. Lee statue in Charlottesville, Virginia and the toppling of a similar statue in Durham, all eyes are on the once utterly uncontroversial board. Its members – mostly historians, writers and college professors – say they aren’t sure what they are empowered to do about the statues or how the board should proceed.

Several members have staked out positions on the issue, but most say the law is so vaguely written that they aren’t yet sure how their recommendation will be handled. The board will meet as the UNC campus at Chapel Hill and the UNC Board of Governors continue to wrestle with the issue of “Silent Sam,” a Confederate monument on the campus’ quad.

The meeting, which is open to the public will be held at 10:00 a.m. at the Archives and History/State Library Building at 109 E Jones St. in downtown Raleigh.

Environment

To get Duke Energy flood maps near coal ash basins, local governments had to sign confidentiality agreements

A page from the Allen coal plant’s Emergency Action Plan (Source: Duke Energy)

Duke Energy won’t tell you if live in an area that could flood if one of its coal ash basin fails. And local emergency managers can’t tell you, that is, if they want a copy of the secret maps.

This secrecy has prompted the Southern Environmental Law Center, on behalf of eight clients, to notify Duke Energy today that it plans to seek an enforcement action against the utility for failing to publicly provide inundation maps for its coal ash sites. As part of the 2015 federal Coal Combustion Residuals Rule, Duke was required to make public Emergency Action Plans — which include flood maps — for each of its coal ash storage sites where a dam failure would likely result in loss of human life or serious harm to the environment.

There are 10 such facilities in North Carolina: Allen, Asheville, Belews Creek, Cliffside, Dan River, HF Lee, Marshall, Mayo, Roxboro and Weatherspoon. Many of these dams are designated as high or significant risk by the NC Department of Environmental Quality.

The purpose of the plans and the maps are to tell residents near the plants if they live within a flood zone or other sensitive area. Residents can then prepare for a possible emergency or evacuation should a flood, hurricane or other disaster occur. Duke Energy, the SELC alleges, is the only utility in the country to withhold its inundation maps.

But Duke Energy counters that the information is confidential under statutes protecting homeland security and critical infrastructure. Duke Energy spokeswoman Paige Sheehan said the utility does provide full versions of the Emergency Action Plans to counties and cities.

But there’s a catch.

Policy Watch called or emailed all of the county emergency management offices in areas where Duke Energy is storing, even temporarily, coal ash. So far, one has responded. Tommy Almond, emergency management director for Gaston County, said his office has the utility’s inundation maps, but could not publicly share them. “To get those, we had to sign a non-disclosure agreement” with Duke Energy, Almond said. The utility instructed him to refer callers to Duke’s corporate offices in Charlotte for more information. However, the Emergency Action Plans tell residents to call their local emergency managers.

The Allen plant is in Gaston County. Riverbend is as well, but those basins are being excavated and don’t require an inundation plan.

To get those, we had to sign a non-disclosure agreement. It puts me in a bad spot Click To Tweet

Almond said that although he receives only one or two calls a year, the agreement “puts me in a bad spot.”

“I don’t know if I’m better off knowing” — and having to tell people that he can’t share the information — “or not knowing,” he said. “I do try to help people out and walk right up to the legal line.”

He told Policy Watch that he has seen the maps and believes there is minimal flood risk from the basins to area residences. Lake Wylie could see a small rise, he said.

Gaston County is sandwiched between two nuclear plants — McGuire in nearby Huntersville and Catawba over the border in York, S.C. Duke has provided pamphlets and other information for nearby residents.

“We’ll tell you if you live within 10 miles of a nuclear plant,” Almond said. “But we won’t tell you if you live in an inundation zone.”

When Policy Watch told SELC senior attorney Frank Holleman of these agreements, he said, “This action underscores the arrogance of Duke Energy and its determination to keep these maps from the public. These emergency responders protect the public and work for the public.”

Sheehan has not responded to questions about the non-disclosure agreements.

Keith Acree, communications director for the Department of Public Safety, said he would check on the state’s legal obligations, but had not responded by press time. (We’ll update the story as the information becomes available.) In the meantime, Policy Watch has filed a Public Records request with state emergency management officials for the unredacted Emergency Action Plan, including the inundation maps.

Sheehan said the Emergency Action Plan is only one part of the utility’s steps “to prepare for an unlikely event.” Sheehan also said that Duke engineers conduct weekly inspections, overseen by state regulators, she said, and the utility maintains the basins.

However, Duke does seem open to reconsidering its stance. Sheehan said the utility reviewed state statutes in managing public information around critical infrastructure. “While that drove decisions,” Sheehan said, “we will review the approach taken by other utilities and ask state regulators for further guidance.

Below: The Emergency Action Plan for the Allen plant. There are many redactions.

 

Allen Plant Emergency Action Plan by LisaSorg on Scribd

Courts & the Law, News

Board of Education asks Court of Appeals to pause transfer of power to Superintendent

Superintendent Mark Johnson (left) and State Board of Education Chairman Bill Cobey (right)

The State Board of Education has officially asked the Court of Appeals to stop Superintendent Mark Johnson from taking the reigns of the Department of Public Instruction until the appeal process is complete.

The motion for temporary stay and writ of supersedeas was filed late Tuesday afternoon. A three-judge Superior Court panel ruled for Johnson in a lawsuit over the transfer of power but issued a 60-day stay to prevent its ruling from going into effect right away.

The Board’s attorneys used those 60 days to try to negotiate with Johnson’s attorneys but were unsuccessful, so they went back to the panel to ask for another stay. The panel gave the Board 30 more days, which ends at 5 p.m. Monday, October 16.

Now, the Board is asking the appellate court to step in and extend the stay to preserve the status quo while litigation continues.

“Here, a stay of the trial court’s decision during the appeal is warranted because it is necessary to preserve the Board’s constitutional power and duty to supervise and administer the State’s public schools — a nearly 150-year-old responsibility,” the court document states.

The Board’s argument is that its power is derived — and has been for 150 years — from the N.C. Constitution.

“In stark contrast to the broad, sweeping powers and duties that the North Carolina Constitution confers on the Board, the North Carolina Constitution has always confined the [Superintendent of Public Instruction] to a limited role,” it states.

The document contends that a constitutional amendment would be required to flip-flop the Board’s and the SPI’s constitutionally mandated roles.

Without the appellate court issuing a stay, the legislation in question will move the entire $10 billion public school system under the control of a single individual for the first time in North Carolina history, according to the court document.

“This seismic shift will generate enormous disruption for our State’s public schools,” it states. “Worse, this seismic
shift would occur overnight, without any transition period whatsoever. As part of this disruption, the SPI would be immediately empowered to take drastic actions that could not be undone.”

Board’s Motion for Temporary Stay and Petition for Writ of Supersedeas by NC Policy Watch on Scribd