Environment, Legislature

Sen. Trudy Wade: Her loss, should it stand, could be a win for the environment

Photo of Senator Trudy Wade of Guilford County

In 2017, Sen. Trudy Wade, a Republican of Guilford County, toured the Sweeney treatment plant in Wilmington, where GenX had been detected in the drinking water. Wade, long an environmental antagonist, appears to have lost re-election. (File photo: Lisa Sorg)

Throughout her three terms, Sen. Trudy Wade earned a reputation as a faithful ally of polluting industries, consistently reliable for a vote against environmental regulation.

But if current election results hold, those industries, particularly waste management, will have lost their best friend in the legislature.

According to unofficial results from Guilford County, Democrat Michael Garrett beat Wade by 763 votes. Provisional ballots aren’t included in that total. Given the margin of less than 1 percent, Wade could request a recount.

Nonetheless, Wade, who serves on the Environmental Review Commission and key oversight and appropriations committees over the environment and agriculture, has left a legacy in the legislature, even for her support of bills that didn’t pass.

She has sponsored bills to relax protective buffers between landfills and wildlife refuges, to allow garbage trucks to be only “leak-resistant” rather than leak-proof, and to discontinue electronics recycling.

On June 29, 2016, in the final days of the session, Wade was on the Senate ag/environment committee when suddenly, language for an ill-advised and untried “leachate aerosolization technology” appeared in an omnibus environmental bill. On June 30, the Wade campaign received $5,000 from Kelly Houston, its inventor, as well as another $5,000 from Houston’s wife.

Leachate aerosolization quickly became known as “garbage juice in a snow blower” because the technology sucked landfill leachate from tanks and sprayed it into the air. Ostensibly, the contaminated particles would fall harmlessly to the landfill surface. That contention was false; the particles can travel for miles, depending on the wind and topography.

That bill ultimately failed, but was resurrected in the next session by Rep. Jimmy Dixon, when it failed again — but came closer to becoming law.

She also supported House Bill 56, a grab-bag of environmental laws, containing a controversial section that sharply limits public input once state environmental officials issue a mining or landfill permit. These permits are known as “life-of-site” and are valid for as long as a company wants to operate. The maneuver also blunts opportunities for public comment, because hearings for permit renewals are generally when that comment is taken.

As a member of the Environmental Review Commission, Wade refused to recommend emergency funding for the NC Department of Environmental Quality to combat the GenX problem in the Cape Fear River and drinking water in New Hanover and Brunswick counties.

Instead, she and fellow senators Mike Lee (who trails by 36 votes to Harper Peterson, according to unofficial election results), Bill Rabon and Andy Wells sent a letter to the EPA asking the agency to audit the NC Department of Environmental Quality’s handling of discharge permits. While there have been legitimate questions about how DEQ handled the GenX drinking water crisis, the request to the EPA amounted to political posturing. The EPA already audits DEQ, and concluded it was appropriately operating the program.

Garrett’s apparent victory over Wade is in part the result of a redrawn district. Two years ago, Garrett lost by 6 percentage points. But after maps were changed to remedy gerrymandering, the district became more hospitable for Democrats. However, Wade is not one to go gently into the good night. In 2004, she lost her Guilford County Commissioners seat by fewer than 300 votes. She appealed to the state Supreme Court and stayed in office for 18 months before ultimately having to concede it.

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.”

Commentary

Fact sheet skewers NC legislature’s two-faced posturing on clean water

[Lisa Sorg will have more details on this developing story in this space shortly.] The General Assembly passed legislation today that purports to be about protecting North Carolinians from chemicals in the Cape Fear River. As multiple experts have noted, however, the issue is vastly more complex and potentially serious (and requires a much more concerted response) than is contemplated or provided for in House Bill 56 — a measure that, ironically, contains other provisions to lessen environmental rules at the behest of polluters. As Governor Roy Cooper aptly noted after the passage of the bill:

“Clean water that is threatened by chemicals we know little about requires a strong, united and well funded statewide response. A sprinkle of local funds hooked to bad environmental legislation doesn’t help. I ask Republican legislators to work with us to protect the water all over our state.”

Of course, the other bitter irony in today’s action is the fact that it comes on top of years of neglect and/or affirmative attacks on clean water by the conservative majority at the General Assembly. For confirmation of this ad truth, check out the fact sheet released today by the North Carolina chapter of the Sierra Club that outlines more than a dozen examples of recent legislation that has impaired the state’s ability to protect water quality. This is from the fact sheet:

Passed in 2017 and recent years:

  • 2017 – HB 56 Amend Environmental Laws: Contains a variety of proposals that would negatively impact water quality including two unnecessary exemptions to riparian buffer rules and repeal of the Outer Banks plastic bag ban that protects sea turtles and prevents litter.
  • 2017 – SB 16 – Business Regulatory Reform Act of 2017 (vetoed): Sec. 14“Stormwater/redevelopment” would forbid the Environmental Management Commission from requiring any control of stormwater during redevelopment beyond that required for the incremental increase in built-upon area. This is a problem because the way to improve waters impaired by stormwater pollution is to retrofit development. The most efficient way to retrofit is to do so when buildings are rebuilt. Local governments cannot escape the federal obligation to take measures improve the water quality of impaired streams; this provision makes the task more difficult.
  • 2017 – HB 576 – Allow Aerosolization of Leachate (vetoed): Requires DEQ to allow the spraying of landfill wastewater over landfills, which presents risks to workers and neighbors.
  • 2017 – SB 257 – Appropriations Act of 2017 (vetoed; veto overridden): Pushes DEQ to experimentally test chemical algaecides in major drinking water reservoirs, Jordan and Falls lakes.
  • 2017 – SB 131 – Regulatory Reform Act of 2016 – 2017: Reduced stream protections and stormwater controls. Read more
Commentary

Lawmakers return today; Cooper vetoes of small loan, “garbage juice,” casino nights and newspaper bills at risk?

The North Carolina General Assembly takes yet another step toward becoming a more or less full-time legislature today as it returns for its umpteenth special legislative session in recent years. To make the whole exercise that much more fun and in keeping with the way things have run during recent so-called “regular” sessions, no one — least of all the general public — has any clear idea of what the heck lawmakers will do.

One thing that had been expected — votes on motions to override four vetoes issued by Governor Cooper in July — now appear much in doubt. The official excuse for this advanced by Republican legislative leaders is that it will be hard to get enough lawmakers to attend the session in order to conduct override votes. Setting aside the fact that this calls into question the very idea of having the session to begin with, it should also be noted that this is explanation is starting to sound a little questionable.

The truth of the matter, as its has been so often over the last several months, is that Cooper seems to have out-maneuvered lawmakers once again. Each of the four bills vetoed by the Guv faced bipartisan opposition during the session and have received lots of negative publicity.

As we reported a few weeks back, one of the proposals (House Bill 140) constitutes an absurd giveaway to the high cost lending industry.  Under language added to the bill in the session’s waning hours – language that was never discussed previously in a committee or even as the subject of another “stand alone” bill – loan shops would get new opportunities to sell an especially predatory product known as credit property insurance. As Cooper said in his veto message:

“Making small loans more expensive by expanding credit insurance can drive borrowers further into debt, especially those who can least afford it. If this bill becomes law, consumers will have higher-cost loans because they will be borrowing the money to pay the credit insurance premiums. Borrowers who need short-term loans should not have to pay more for unnecessary insurance.”

Let’s hope lawmaker leave the veto alone as consumer advocates are urging them to do. And let’s hope they do the same for the three other vetoes bills. As veteran journalist Steve Ford explained earlier this week: Read more

Courts & the Law, News

Racial gerrymandering plaintiffs to argue lawmakers actions after Supreme Court opinion are void

When the U.S. Supreme Court ruled that 28 State House and Senate districts were unconstitutionally racially gerrymandered, the North Carolina General Assembly and its actions became illegal.

That’s the argument the plaintiffs in North Carolina v. Covington plan to make next week, according to court documents filed Friday.

“Arguably, under State v. Lewis and Van Amringe v. Taylor upon issuance of that mandate the members of the illegally constituted General Assembly lost the protection of the de facto doctrine and became usurpers unauthorized to act to protect the health and [safety] of all North Carolinians,” the document states. “It is entirely possible that any legislative actions they take without being elected from legal districts could be subject to challenge under state law. This risk is not merely speculative.”

A usurper is someone who takes a position of power illegally or by force. The de facto doctrine is designed to validate the past acts of public officers illegally in office, according to the court document.

A court hearing is set Thursday in the U.S. District Court for the Middle District of North Carolina. A three-judge panel will decide a timeline for state lawmakers to redraw the illegal district maps, in addition to deciding whether a special election will be ordered to remedy the constitutional violations.

All parties in the case had to file any extra briefs or arguments and witness lists by midnight Friday.

Attorney General Josh Stein, who is representing both the state of North Carolina and the State Board of Elections, plans to call witness Kim Westbrook Strach, Executive Director of the Bipartisan State Board of Elections & Ethics Enforcement.

Strach’s husband, Phillip Strach, is one of the attorneys representing the legislative defendants, which means he could potentially cross-examine her at the hearing.

The legislative defendants did not file a brief or witness list. They did file one exhibit they plan to use in court: the North Carolina Supreme Court’s dismissal in Cooper v. Berger of Gov. Roy Cooper’s request to stop the Bipartisan Board.

The lawsuit is over Senate Bill 68, which merges the functions of the State Board of Elections and State Ethics Commission, along with campaign finance and lobbying functions.

The dismissal of the motion for temporary stay states that the court must preserve the status quo of the Bipartisan Board during its expedited consideration of the case and that the parties are prohibited from taking further action regarding the unimplemented portions of the act.

The exhibit document does not state why legislative defendants plan to use the dismissal in their Covington arguments.

The plaintiffs in Covington plan to call six witnesses: Milo Pyne, a plaintiff; Rep. Grier Martin (D-Wake); Rep. Robert T. Reives II (D-Chatham, Lee); Gary Bartlett, former Executive Director of the State Board of Elections; George Gilbert, former director of the Guilford County Board of Elections; and Rep. David Lewis (R-Harnett).

The plaintiffs also filed a brief to support their request to give the General Assembly two weeks to redraw the unconstitutional maps and to order special elections for March 2018.

The brief lays out the argument that the General Assembly became illegitimate when the U.S. Supreme Court made its ruling in Covington. It includes an exhibit declaration from Derb Stancil Carter Jr., Director of the Chapel Hill office of the Southern Environmental Law Center (SELC).

In the declaration, Carter says it is the position of SELC that the General Assembly no longer has the authority to override gubernatorial vetoes, and will not have that authority until constitutional districts are drawn and a legal, de jure legislature is elected.

He also states (and wrote a letter to the Governor and legislative leaders) that if lawmakers attempt to override the veto of House Bill 576, entitled “Allow Aerosolization of Leachate,” at the scheduled Aug. 3 or Sept. 6 legislative sessions, they could be sued.

The other exhibit the plaintiffs submitted to the court is a proposed schedule for the redrawing of maps and a special election to be held March 6.

The schedule would require that new maps be enacted by Aug. 11 and the candidate filing period would take place from Sept. 11 through Sept. 25. It leaves time for a 40-day absentee voting period for the primary, a primary on Dec. 5 for legislative districts in impacted districts and a 51-day absentee voting period for the general election.

The court, the brief states, should order lawmakers to enact remedial districts immediately and conduct special elections before their next session to remove the risk that their acts as usurpers will be challenged as void.