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SmokestacksHere’s the problem with hurrying bills, especially poorly drafted ones, through passage into law — something we’re witnessing right now with major legislation being pushed at breakneck speed with little consideration and debate.

Sometimes that one word, sentence or paragraph inserted into an existing statutory framework for the benefit of a lawmaker’s constituent, client or favored industry has widespread and unintended consequences.

Exhibit A: the section of the Regulatory Reform Act, Senate Bill 734, dealing with who can contest air quality permit decisions and what proof is required.

Prior law allowed permit applicants and third parties to contest an administrative decision granting or denying an air quality permit.

As amended, citizens and other third parties would still be able to contest such a decision but would have to meet a newly defined standard of  “substantial prejudice” to proceed.

As stated in the bill, “‘substantial prejudice’ to the petitioner in a contested case filed under this subsection means the exceedance of a national ambient air quality standard.”

In other words, the only way citizens can contest the issuance of an air quality permit is to show that the company receiving the permit will be emitting pollutants exceeding the national standard.

That language actually mirrors an argument made by Carolinas Cement Company in a case pending before the Environmental Management Commission, North Carolina Coastal Federation v. N.C. Department of Environment and Natural Resources.

In a brief submitted in February 2014 the company argued that the federation and other groups could not challenge the issuance of  an air quality permit because they could not show “substantial prejudice,” which the company itself defined as emissions exceeding national standards.

“The undisputed evidence in this case is that the air emissions from this facility will not result in an exceedance of the National Ambient Air Quality Standards or the State Acceptable Ambient Levels,” the company wrote.

That argument has now morphed into a statutory definition of prejudice needed to contest an air quality permit under the proposed Regulatory Reform Act.

Here’s the problem.

According to the Southern Environmental Law Center, there are no national ambient air quality (NAAQS) for toxic mercury and other pollutants including arsenic, benzene, radioactive materials, carcinogens, asbestos, dioxins, chloroform and most of the nearly 180 pollutants listed as Hazardous Air Pollutants under the Clean Air Act.

That leaves citizens wishing to challenge mercury emissions, for example, or a host of other pollutants without recourse.

Is that the intent of the amendment?

Here’s the latest in the civil court case involving Duke Energy and the clean-up of coal-ash ponds. Click here for background on the case.

Wake Superior Court Judge Paul Ridgeway denied a request Thursday from the utility company to delay a previous order to start immediately dealing with contamination from coal-ash ponds Duke maintains around the state.

Duke had asked that the clean-up be delayed while it appealed Ridgeway’s decision earlier this month to order Duke to take immediate action to stop contamination by coal-ash ponds. Today’s order means that Duke must be forward with plans to clean up the ponds.

Below are copies of Ridgeway’s order, as well a motion from environmental groups asking that the stay be denied.

 

Duke Stay Coal Ash by NC Policy Watch

 

 

Enviro Objection Stay by NC Policy Watch

 

Coal ashTwo important bits of news on the coal ash front this afternoon:

#1  is this letter from attorney Frank Holleman of the Southern Environmental Law Center, which was sent to Gov. McCrory yesterday. It spells out in great detail where things stand, what the environmental advocates think needs to happen and expresses grave concerns about the consistently conflicting stories emanating from the  Governor’s office and that of his Secretary of Environment and Natural Resources, John Skvarla (as well as Skvarla’s apparent continuing failure to grasp the basic facts of the situation).

#2: If you read Chris Fitzsimon’s Friday Follies this morning, you know that Skvarla has still made no real public announcement of a promised task force to examine the state’s gigantic coal ash “pond” problem. As Chris noted:

“And then there’s this interesting nugget from the blog Coal Ash Chronicles.  There is no mention at all on DENR’s website of the coal ash task force that DENR announced with some fanfare on February 11, nine days after the Dan River spill. Read More