May 21, 2014. Yesterday, the Senate Agriculture and Environment Committee approved a 62-page regulatory reform bill that many committee members did not see until it was handed out at the beginning of the committee meeting. Today, the Senate Finance Committee gave Senate Bill 734 (Regulatory Reform Act of 2014) a favorable report and the bill will go to the Senate floor tomorrow for an initial vote. Some of the most significant environmental provisions:
More legislative review of environmental rules. In 2011, the General Assembly, returning to an idea from the 1980s, put strict limits on adoption of state environmental rules that are more stringent than federal rules on the same subject. The law has exceptions only for rules needed 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. (An earlier post talks about the practical difficulties and policy implications of chaining state environment standards so tightly to federal rules.) Section 1 of Senate Bill 734 goes another step and requires legislative review of any rule adopted under one of the exceptions, possibly delaying the effective date of the rule for months. The state’s Administrative Procedures Act normally requires legislative review of a rule only if 10 or more people send letters objecting to the rule. Under Senate Bill 734, ten letters of objection would still be needed to get legislative review of a rule change that weakens environmental standards, but the legislature would automatically review any rule that goes beyond minimum federal environmental standards.
Eliminate citizen appeals of toxic air pollution permits. Sec. 2.2 limits citizen appeals of air quality permits to decisions involving a national ambient air quality standard. The problem is that “national ambient air quality standard” does not even cover the universe of federal air quality rules. National ambient air quality standards cover six pollutants (carbon monoxide, lead, nitrogen dioxide, sulfur dioxide, particulates, and ozone) that cause environmental and health problems when levels reach a certain level in outdoor air. But the Clean Air Act also regulates a much longer list of hazardous air pollutants or “air toxics” associated with cancer risk, infertility, birth defects and other acute environmental and health effects. Mercury and benzene are examples of air toxics. There are no national ambient air quality standards for air toxics; those pollutants are regulated under a different set of rules that require a high level of pollution control on every regulated air toxic source. As written, Senate Bill 734 would bar citizen appeals of air quality permits issued for facilities that emit air toxics.
Emergency Authority to Waive Coastal Development Permits. Sec. 2.5 gives the governor the authority to waive Coastal Area Management Act (CAMA) permits and environmental impact statements for emergency repairs to a highway “that provides the sole road access to an incorporated municipality or an unincorporated inhabited area bordering the Atlantic Ocean or any coastal sound, where bridge or road conditions as a result of the events leading to the declaration of the state of emergency pose a substantial risk to public health, safety, or welfare”. The description fits Highway 12 in Dare County — the perennially endangered road on Hatteras Island. (See an earlier post for the history – and cost — of maintaining Highway 12.) The idea of waiving state permits for rebuilding damaged segments of Highway 12 after a storm has some appeal — but may not have the desired effect. Aside from eliminating any state review of project impacts, waiving the CAMA permit only puts the U.S. Army Corps of Engineers entirely in control of the permitting process.
Environmental Audits/ Self-Reporting. Sec. 3.6 of the bill does two significant things: 1. Protects internal company environmental “audits” from disclosure to regulatory agencies; and 2. Provides immunity from civil penalties to a company that voluntarily self-reports a violation.
Limited immunity from penalties can make sense if limited to situations where the violator has self-reported a recent, unintended violation. The Senate Bill 734 audit/self-reporting provision has not been limited to those situations and potentially provides the benefit of confidentiality and immunity to violators who have committed longstanding, continuing violations of environmental laws. Under the bill, the violator can use a recent environmental audit to cover numerous past violations and acquire immunity by “self-reporting” those violations. Although the bill does not give immunity for willful and intentional violations or violations resulting from criminal negligence, it would deny regulators access to internal environmental audits that may document the intentional behavior. In the worst case, the provision could be a gift to violators who gambled for years on their ability to evade enforcement.
It is difficult to ignore the implications for violations at coal ash impoundments. Under the bill, a company inspection of a coal ash impoundment could be treated as a confidential “environmental audit” and withheld from state regulators. And the owner/operator of the coal ash impoundment may get immunity from civil penalties by self-reporting violations that had gone on for years.
Other sections of the bill incorporate legislation recommended by the Environmental Review Commission (described here). Senate Bill 734 actually goes beyond the ERC recommendation on isolated wetlands and proposes to eliminate permit review of isolated wetlands impacts of less than an acre in both the eastern and western parts of the state. The bill continues a recent pattern of weakening open burning rules by limiting local government authority to regulate open burning. The bill also proposes to shift rulemaking authority for the waste management and drinking water programs from the Commission for Public Health to the Environmental Management Commission.