April 29, 2013: Last Thursday, the N.C. Senate’s Committee on Commerce approved a new version of Senate Bill 612 (Regulatory Reform Act of 2013) — the third in a series of “regulatory reform” bills developed since Republicans gained control of both houses of the General Assembly in the 2011. The bill may be on the Senate calendar tonight.
The bill attempts too much to describe in one post, but the most significant provisions would repeal stream buffer requirements in the Neuse River and Tar-Pamlico River basins and require repeal or modification of any state rule that “imposes a more restrictive standard, limitation, or requirement” than a federal law or rule on the same subject. ( See an earlier post for more detail on the Senate Bill 612 stream buffer language.) The idea of prohibiting state agencies from adopting rules (particularly environmental rules) that go beyond minimum federal requirements has been around for awhile. The Regulatory Reform Act of 2011 ( Session Law 2011-398 ) prohibited state environmental agencies — and only environmental agencies — from adopting more restrictive standards or requirements than federal rules on the same subject. The law had exceptions for rules to address a “serious and unforeseen threat to public health, safety or welfare” and rules required by state law, federal law, state budget policy or a court order. Even then, the General Assembly had an eye on existing rules as well. The same legislation directed all state agencies to provide the Joint Select Regulatory Reform Committee with a list of existing rules and indicate for each rule whether the rule was mandated by federal law and whether the rule was more stringent than an analogous federal regulation. (The session law defined analogous to mean that a federal rule regulated the same conduct or activity.)
The Regulatory Reform Act of 2012 (Session Law 2012-187) did not follow up on the reports submitted in the fall of 2011. Senate Bill 612 also ignores the information submitted by state agencies in 2011. Instead of using the 2011 reports to focus regulatory reform efforts, Senate Bill 612 directs state environmental agencies — and only environmental agencies — to repeal or modify any rule that exceeds minimum federal requirements unless the rule fits under one of the exceptions set out in the 2011 legislation for new rules. The bill also takes away the authority of city and county governments to adopt local ordinances that go beyond state and federal environmental standards.
It isn’t clear how legislators mean to interpret the Senate Bill 612 provisions. Even the most detailed federal environmental regulations (like those adopted by EPA under the Clean Air Act and Safe Drinking Water Act) have gaps that need to be filled by state rules. Federal regulations often lack detail on program implementation, such as record-keeping and monitoring requirements. Sometimes the gaps are more substantive; environmental and public health issues of great concern in North Carolina have not always been national priorities. Most federally delegated or authorized environmental programs operate under federal regulations that are much less detailed than the Clean Air Act and Safe Drinking Water Act standards. The state’s water quality, solid waste and coastal management programs all operate under federal laws that create a framework for state regulatory programs, but for the most part leave development of specific environmental standards to the state. For those programs, it will be difficult to directly compare state rules to federal regulations and determine what is more or less stringent.
So, the Senate Bill 612 language raises a number of questions:
— Where fairly detailed federal standards exist, would the bill require repeal of state rules that address gaps in the federal regulations? Or can state rules go beyond federal regulations to describe the content of a complete permit application or establish specific monitoring and record-keeping requirements?
— In programs that operate under a federal framework for regulation that leaves specific standard-setting largely to the state agency (with federal oversight), will Senate Bill 612 require repeal of types of standards and requirements not specifically identified in the federal regulations? Will the state’s water quality program, for example, be limited to using regulatory tools provided under the Clean Water Act (such as wastewater discharge permits) to solve a water pollution problem? Or can the program continue to address all major water pollution sources and use innovative approaches not contemplated in the federal rules?
— Does the exception for rules addressing a “serious and unforeseen threat to public health, safety and welfare” allow state rules to go beyond minimum federal requirements because of particular conditions in the state or in response to concerns that may not have come up in development of the federal regulation? Or will the General Assembly take the position that if EPA doesn’t think putting a petroleum underground storage tank (UST) near a drinking water well is a problem, then it must not be a problem?
The 2011 DENR report to the Joint Legislative Committee on Regulatory Reform identified a number of state environmental rules that go beyond the requirements of federal rules on the same subject. From a quick review, I found some examples of state rules that may have to be repealed under Senate Bill 612 :
● State waste management rules requiring minimum separation from groundwater for land application of septage (to prevent groundwater contamination) and maximum slopes for land application sites (to prevent runoff to surface waters).
● State rules requiring water systems to treat drinking water with excessive levels of iron and manganese; both can cause discoloration of skin and teeth, as well as odor and taste problems. Federal rules have only “advisory” standards for manganese and iron and do not require water systems to provide treatment to improve the water quality.
● State rules requiring a public water system to notify the owner if routine water system monitoring finds a drinking water standard violation or high levels of fecal coliform bacteria in a water sample from a building. Federal rules only require water systems to provide notice to customers if the water system overall violates Safe Drinking Water Act standards. Since a water system can exceed drinking water standards at some number of individual monitoring locations without being in violation as a system (the exact number varies depending on the size of the water system and number of monitoring sites), the federal rules do not require the water system to notify individual property owners of a problem confined to a particular site. The state notice rule was adopted in 2006 after complaints that local water systems did not notify citizens of high lead levels in their drinking water after it was detected in routine water systems monitoring.
● Rules prohibiting location of a petroleum underground storage tank (UST) within 100 feet from a well serving the public or within 50 feet of any other well used for human consumption.
● Rules requiring setbacks for land application of all wastewater residuals (both sewage sludge and other solids from wastewater treatment) and setbacks for disposal of coal combustion byproducts. The rules include setbacks from property lines, public and private drinking water supplies, other water supply wells, and surface waters.
● Limits on emissions of three toxic air pollutants (arsenic, beryllium and chromium) by industrial, medical, hazardous waste and sewage sludge incinerators.
It isn’t clear that these are the kind of “regulatory reforms” that the General Assembly actually wants to see.
You can find the full report at: http://www.ncdenr.gov/c/document_library/get_file?uuid=00ccda5a-8c0d-4579-a7d5-f0af4b1474f3&groupId=2444522
Note: Why the General Assembly believes environmental rules to be a greater burden on North Carolina citizens than other types of regulation will be a subject for another day.