August 14, 2013. Bits and pieces of environmental legislation (air quality, coastal development, sedimentation, renewable fuels tax credit). Many of the provisions discussed below were adopted as part of House Bill 74 (Regulatory Reform Act of 2013), which the Governor has not yet signed into law. The Governor has until August 25th to sign or veto a bill adopted at the end of the legislative session; if the Governor takes no action, the bill becomes law without his signature.
Appeals of Air Quality and Water Quality Permits
House Bill 74 (Regulatory Reform Act of 2013) includes two separate provisions that shorten the time for a third party to appeal an air quality or water quality permit from 60 days to 30 days. (See Section 29 and Section 53.) The time for an applicant to appeal a permit decision has always been 30 days, but a third party (such as a neighbor, local government or community organization) fell under the 60-day appeal period set in the state’s Administrative Procedures Act . The challenge for third parties is that the appeal period begins to run when the applicant gets notice of the permit decision — not when the third party receives notice.
Local Transportation Mitigation Ordinances. House Bill 74 ( Regulatory Reform Act) prohibits local governments from using a fine or penalty to enforce certain types of ordinances to reduce the air quality impacts of commuting by car. Section 10.1(a) of the bill adds a new statute section, G.S. 160A-204 (entitled Transportation impact mItigation ordinances prohibited):
“No city may enact or enforce an ordinance, rule, or regulation that requires an employer to assume financial, legal, or other responsibility for of the impact of his or her employees’ commute or transportation to or from the employer’s workplace , which may result in the employer being subject to a fine, fee, or other monetary, legal, or negative consequences.”
Section 10.1(b) adds a new G.S. 153A-145.1 that applies the same prohibition to counties. A Durham ordinance requiring large employers to have a plan to reduce commuter miles traveled by employees may be an example of the kind of ordinance the legislation would affect. The Durham ordinance allows the employer to choose a number of different approaches to reduce commuting by car, including: work-at-home policies; incentives for car-pooling; creation of company van pools; and shower facilities for employees who bike to work.
There was little discussion of the provision as House Bill 74 moved toward adoption, but the same language appeared in a different House bill titled Local carbon footprint ordinances (House Bill 677). The title suggests that lawmakers linked transportation mitigation ordinances to climate change policy. In reality, these ordinances mostly have to do with reducing ozone pollution to meet federal air quality standards. As much as 70% of the ozone pollution in urban areas comes from motor vehicle emissions and reducing vehicle miles traveled is one way to keep motor vehicle emissions down. The Durham ordinance talks specifically about the need to reduce nitrogen oxide emissions that contribute to high ozone levels. Many of the state’s urban areas will be hard-pressed to meet tighter federal air quality standards for ozone while continuing to grow. Failing to meet the ozone standard (“nonconformity” in Clean Air Act language) has significant economic consequences, including loss of federal highway funds and inability to permit new industrial development. The language in House Bill 74 does not eliminate the authority for these kinds of ordinances, but it will make the ordinances difficult to enforce and possibly reduce their effectiveness as a tool to maintain ozone conformity in the state’s major metropolitan areas.
Repeal of Heavy Duty Diesel Rules for 2008 and Later Vehicles. Section 25 of House Bill 74 directs the Environmental Management Commission to repeal rule 15A NCAC 02D.1009 (Model Year 2008 and Subsequent Model Year Heavy Duty Vehicle Requirements) by December 1, 2013. The rule was adopted by the Environmental Management Commission in 2004 and required model year 2008 and later heavy-duty diesel vehicles to meet California emissions standards. The U.S. Environmental Protection Agency has allowed California to adopt more strict motor vehicle emissions standards than those in federal rules and a number of states have adopted California standards by reference. The EMC adopted the California heavy duty diesel standard because lawsuits delayed the federal standard for several years. With a final federal standard for heavy duty diesel engines in place, the state rule has become unnecessary. (The final federal standard turned out to be nearly identical to the California standard that the EMC adopted by reference in 2004.)
Open Burning. Section 28 of House Bill 74 makes a significant change to rules for open burning. Until now, open burning for land-clearing or right of way maintenance has only been allowed on the site being cleared unless the debris was taken to be burned in an air curtain burner, (Air curtain burners or “fireboxes” provide better control of smoke and particulate pollution than open burning of woody debris.) The new provision allows land-clearing debris to be transported off-site for open burning and allows that burn site to be used up to four times a year. The bill requires an off-premises open burn to maintain the same setback distance from occupied structures as an on-site open burn — 500 feet. The impact on nearby residents and building occupants may be different, however, if the off-premises open burn site is used more often. The bill also exempts these off-site open burning locations from requirements that would otherwise apply to waste disposal site for land-clearing debris.
Air Quality Permit Terms. Section 29 of House Bill 74 sets the permit term for most state-issued air quality permits at eight years. The term for an air quality permit issued under Title V of the Clean Air Act continues to be no more than five years as required by federal law.
Ocean and Inlet Erosion Control. For over thirty years, state coastal policies generally barred use of hard erosion control structures (like seawalls, jetties and groins) on ocean and inlet shorelines. In 2011, Session Law 2011-387 made the first significant change in that policy by authorizing DENR to permit a limited number of “terminal groins” under strict conditions. A terminal groin is an erosion control structure built perpendicular to the shoreline and at the end of a section of beach. Terminal groins are sometimes used to stabilize an inlet shoreline. This year, Senate Bill 151 made several changes to the 2011 law. One of the most significant is a change in the definition of ”terminal groin” to include projects that involve installation of “one or more” groin structures or a single groin with ”a number of smaller supporting structures”.
Although Senate Bill 151 keeps the 2011 limit on the total number of terminal groin projects permitted coast-wide (four), the new definition of “terminal groin” no longer matches the definition used by the U.S. Army Corps of Engineers. Expanding the term to include multiple groins as part of a single project means the law potentially authorizes projects well beyond the scope of a “terminal groin”. Senate Bill 151 also makes it easier to get a terminal groin permit by eliminating the need for the applicant to show that: 1. the project is necessary to protect imminently threatened structures; and 2. other shoreline stabilization measures would not be successful. More background on the terminal groin issue and S.L. 2011-387 can be found here.
Local Authority in Public Trust Areas. Another section of Senate Bill 151 clarifies local government authority to address nuisance conditions on the beach and prevent (or remove) obstructions in public trust areas of the beach. The clarification became necessary because of a N.C. Court of Appeals decision in Town of Nags Head v. Cherry that held only the state can take action to remove a structure on the public trust beach. See an earlier post for background on the Nags Head case.
Notice of CAMA Minor Development Permits. Section 30 of House Bill 74 eliminates the requirement for newspaper notice of Coastal Area Management Act (CAMA) minor development permits. Notice will still be provided to any person or organization requesting notice of permit applications and by posting a notice at the site of the proposed development. Note: Under CAMA, “minor development” can still be a significant construction project. CAMA defines “major development” to include any project that requires another state or federal approval; occupies an area of more than 20 acres; involves drilling for or excavating natural resources; or occupies a structure(s) with a footprint of 60,000 square feet or more. All other development projects are considered “minor development”. As a practical matter, most projects that disturb an acre or more will be “major development” because of the need for a sedimentation plan approval.
Note: As of now, Senate Bill 151 has not been signed by the Governor and so has not yet become law.
Local Sediment Programs. The Sedimentation Pollution Control Act allows DENR to delegate enforcement of the law to approved local sedimentation programs and many cities and counties have local programs. Section 33 of House Bill 74 resolves a recent question about the role of the state’s Office of Administrative Hearings (OAH) in appeal of a civil penalty assessed by a local program for violation of the Sedimentation Act. The bill makes it clear that those appeals will be decided by the local government under the appeal process set out in the local sedimentation program ordinance. Appeals will not go to the Office of Administrative Hearings.
Tax Credit for Renewable Fuel Processing Facilities
House Bill 112 (Modifications to 2013 Appropriations Act) extends the tax credit available for facilities built to process renewable fuel. The sunset date for the renewable fuel processing tax credit, G.S. 105-229.16D, had already been extended several times. Last year, the General Assembly extended the tax credit to facilities in service by January 1, 2014. Section 11.2 of House Bill 112 extends the tax credit to facilities in service by January 1, 2017 as along as the developer signs a letter of commitment with the N.C. Secretary of Commerce by September 1, 2013 and begins construction by December 31, 2013.