Category Archives: General Observations

General comment on environmental issues

2017 NC Legislative Session in Review: The Budget

July 16, 2017. A few notes on the final state budget which became law following legislative override of the Governor’s veto.

Funding for Environmental Protection Programs. The final budget continues a 7-year trend of annual reductions in environmental protection programs. (See an earlier post  describing the impact of those earlier reductions.) The most significant new cuts to programs in the Department of Environmental Quality (DEQ)  affect:

     Energy Programs. The budget takes almost $1 million from energy programs. The budget reduces pass-through funding for university-based energy centers from around $1 million to a total of $400,000 divided equally between centers at Appalachian State University and North Carolina A& T University. North Carolina State University’s Clean Energy Technology Center will receive no funding. The budget also eliminates 3 of 5 positions in DEQ’s Energy Office.

     Regional Offices/Division of Environmental Assistance and Customer Service.  DEQ’s seven   regional offices house frontline permitting, compliance and technical assistance staff for multiple environmental programs including water quality, water resources, air quality and waste management. Since 2011, the legislature has made the regional offices a particular target  for reductions in positions and funding. The 2017 budget reduces appropriations supporting DEQ’s  Division of Environmental Assistance and Customer Service by $500,000 and requires DEQ to meet the cut in part by eliminating one position in each of the seven regional offices. The Division of Environmental Assistance and Customer Service is a non-regulatory program that provides technical assistance to businesses on water conservation, energy efficiency, waste reduction and other measures to improve environmental compliance.

Conservation Funding. Most funding for conservation programs, such as the Clean Water Management Trust Fund and the Parks and Recreation Trust Fund now go through the Department of Natural and Cultural Resources budget. The Department of Agriculture and Consumer Services also manages some conservation funds through the Farmland Preservation Trust, which purchases conservation easements on agricultural lands. Conservation funding in both departments generally remained stable. The legislature increased funding for the Clean Water Management Trust Fund and the Parks and Recreation Trust Fund, earmarking a combined  $1 million of the increase for an acquisition project on Archer’s Creek (Bogue Banks). The budget also allocates an additional $2.6 million to the Wildlife Resources Commission for acquisition of gamelands and an additional $2 million to the Farmland Preservation Trust Fund.

Surprisingly, the budget did not include state funds to match a federal Department of Defense (DOD) challenge grant of $9.2 million to acquire conservation lands to provide buffers around military installations. DOD announced award of a Readiness and Environmental Protection Integration (“REPI”) grant to North Carolina earlier this year for acquisition of buffers around the Dare County Bombing Range and endangered species habitat near Camp Lejeune.  The federal award  anticipated a state contribution of an additional $10.1 to be put toward the projects.  The final state budget failed to earmark any funding for the state match. The  Clean Water Management Trust Fund and other state conservation agencies could provide some  of the state match, but in the absence of a legislative earmark the REPI projects would be competing with other applications for those grant funds.

Special provisions. As usual, the budget bill (Senate Bill 257 ) includes a number of “special provisions” that  change existing law. Those include:

     Air quality. The budget allows DEQ to use fees from automobile emissions inspections to support any part of the air quality program. Previously, inspection fee revenue could only be used to implement the automobile inspection and maintenance program. In the past, the legislature has tilted toward keeping inspection and maintenance fees as low as possible while still providing adequate reimbursement to inspection stations. The 2017 provision  divorces the fees from the needs of the vehicle inspection and maintenance program for the first time.

The budget also requires legislative approval of DEQ’s plan to use approximately $90 million the state will receive from the Environmental Protection Agency’s  national settlement of an air quality enforcement case against Volkswagen.  (The case concerned  VW’s installation of software to defeat vehicle emissions control systems.) Funds from the settlement will be divided among the states and must be spent for purposes specifically allowed under the EPA settlement agreement.  The agreement gives states a number of options and the legislature clearly wants to influence DEQ’s decision about use of the funds.

     Solid Waste. The budget shifts $1 million from a fund for assessment/cleanup of contamination caused by old, unlined  landfills to the City of Havelock to be used for “repurposing” property previously owned by a recycling company.  (See Sec. 13.3) Phoenix Recycling operated on property just beyond the city limits, but closed in 2000 as a result of environmental violations.  In 2012, the City of Havelock received a state grant to assess environmental contamination on the property. In 2015, Havelock’s city manager advised the town council that if the city acquired the property, it could be eligible for up to $550,000 in federal “Brownfield” grant funds under an EPA program to support cleanup and redevelopment of contaminated sites.  In 2016, the city acquired the property and annexed it into the city.  It isn’t clear whether the city ever applied for the federal Brownfields grant. The 2017 budget provision would instead provide state funding for redevelopment of the property. A Progressive Pulse blogpost provides a good overview of how the earmarking of these funds for the Phoenix Recycling property will reduce funds available to cleanup other, higher priority contaminated sites.

Another provision (Sec. 13.4) allows the owner of an old, unlined landfill site to exclude the property from a state program to cleanup contamination  from  “pre-1983” landfills.  (Modern standards for solid waste landfills went into effect in 1983).  Under the provision, the owner can remove property from the state cleanup program by accepting liability for any contamination and providing financial assurance to address contamination. Financial assurance would not be required if the landfill had received solid waste from a local government (which was often the case). This is a very odd provision in several ways:

♦ Under current law, DEQ has responsibility for assessment and cleanup of pre-1983 landfill sites;  revenue from a statewide solid waste disposal tax pays for the remediation. Under the new provision, a property owner would  waive state responsibility for cleanup and potentially accept environmental liability they might not otherwise have.

♦ The provision has not been restricted to sites that present a low environmental  risk; the only limitations seem to be the property owner’s willingness  to take on the liability and ability to provide financial assurance if required.

♦ The provision describes the opt-out as a “suspension” of the state cleanup program for as long as the person owns the property. That clearly means the state itself would not undertake any assessment or cleanup activity on the site, but the law does not suspend enforcement of state groundwater standards and other environmental remediation requirements. Those programs normally seek remediation by the person(s) responsible for the contamination; under the new provision, the property owner  must volunteer for the liability whether they contributed to the contamination or not.

♦  The implication of a “suspension” is that the state may again have responsibility for the site if it changes ownership in the future. Suspending environmental remediation until a change of ownership could simply delay necessary cleanup activities without regard to environmental risk.

It isn’t clear why a property owner would ever choose to do this.

The budget bill also requires a study of DEQ’s use of revenue from the solid waste disposal tax. The opt-out in Section 13.4  may be a hint of additional changes to the solid waste disposal tax and the state cleanup program for pre-1983 landfills.

     Water Quality: Nutrient Pollution.  The (now annual) budget provision concerning nutrient management strategies directs DEQ to use $1.3 million to test use of algaecides and phosphorus-locking technologies as an alternative to state rules imposing tighter wastewater limits and stormwater controls to address excess nutrients  in  Falls Lake and Jordan Lake. Those rules have been temporarily suspended by the legislature.  (For background on the nutrient rules, see a previous post;  the proposal for an automatic sunset  of the nutrient rules described in the earlier  blogpost was ultimately replaced by legislation further delaying implementation of the rules and a university-based study.)  Based on discussion in committee, legislators had a specific technology developed by a North Carolina-based company in mind.

Limiting Appeals of Environmental Permits

June 19, 2017.  Last week, the N.C. Senate retitled  House Bill 374, a  labor law technical corrections bill,  as  the “Business Freedom Act” and (among other things) added a provision making it significantly more difficult for a citizen, community or environmental organization to challenge an environmental permit. The provisions in Section 12 of H 374 would affect appeals of any environmental permit, certification, or other approval issued by the Department of Environmental Quality or the Environmental Management Commission. Those approvals include permits for  wastewater discharges, wetland/stream impacts, and new air pollution sources;  inter-basin transfers;  coastal development permits;  and many other activities with environmental consequences.

WHAT THE PROVISION DOES 

H 374  limits the ability of a person to challenge an environmental permit in three ways:

  1.  Only a person who submitted a comment before the permit was issued could appeal the permit. Even a person actually harmed by the permitted activity, making them  a “person aggrieved” who would otherwise have appeal rights under the state’s Administrative Procedures Act,  would be barred from appealing unless they commented during the permit review. That means individuals or organizations appealing environmental permits will face a  hurdle not required for appeal of other state actions. The provision puts citizens appealing environmental permits  at a significant practical disadvantage since a comment period may range from as few as 15 days to  60 days and the notice of opportunity to comment may not reach everyone directly affected by the permit decision.
  2.  An issue could not be raised in the appeal unless it had been  specifically identified in a comment to the agency before issuance of the permit. Comments are submitted in response to either a permit application or a draft permit – not the final permit decision. Limiting the appeal to issues raised in a comment means there may be no opportunity to challenge permitting errors that only  become clear when the final permit has been issued. The limited exception in the bill for circumstances where the person “could not have raised a particular basis prior to the decision” would simply  start a new round of argument over whether an issue could or could not have been raised prior to the permit decision.
  3. The administrative hearing would be limited to  evidence in the record of the permit decision (such as the permit application,  permit agency documents, and public comments). Permit appeals are heard by an administrative law judge (ALJ) who conducts a hearing and issues a decision in the case. The  ALJ’s decision can then be appealed in  the state courts. H 374  would not allow the ALJ to consider new evidence in an environmental permitting case; the decision could only be based on materials in the permit record. (The  bill has a narrow exception for information unavailable when the permit decision was made.) The provision seems to  exclude even testimony necessary to explain documents in the permit file. Most of the material in the permit record will be information provided by the applicant or generated by the permitting agency. Other parties to an appeal would rarely be able to gather all possible supporting evidence for an appeal within a 15-60 day comment period.    Under  current  law (which would continue to apply to other types of administrative hearings) ,  a party can introduce any evidence relevant to the issues in the hearing. 

THE PROBLEMS

Fairness.  I can’t say whether these restrictions rise to the level of creating a constitutional due process or equal protection problem.  But the provision clearly treats a citizen harmed by an environmental permit differently than a citizen harmed by any other kind of state action.  The obstacles presented by H 374 affect every stage of the administrative appeal. A person granted an administrative appeal hearing may then find it impossible to raise issues and introduce evidence critical to the appeal. The cumulative restrictions in H 374 could greatly restrict access to the courts on environmental permitting controversies by  making  it more difficult to get a hearing and then limiting the evidence that could go into the hearing record for review by the courts. 

Violation of federal rules for environmental permitting programs delegated to the states. The new restrictions on environmental permit appeals – particularly limits on standing to appeal — seem to violate the terms under which  federal permitting programs have been delegated to the state. N.C. has delegations under all of the major federal environmental permitting laws including the Clean Water Act, Clean Air Act and Safe Drinking Water Act. Under those delegations, the Department of Environmental Quality issues federal permits that would otherwise be issued by the U.S. Environmental Protection Agency. Federal rules require states with delegated permitting programs to  provide an opportunity for judicial review of the final permit decision that is comparable to review available under federal law.

For example, Clean Water Act delegation rules require the state program to provide an opportunity for judicial review that is “the same as that available to obtain judicial review in federal court of a federally-issued [wastewater discharge]  permit”. The rule expressly says “[a] State will not meet this standard if it narrowly restricts the class of persons who may challenge the approval or denial of permits”. (40 CFR §123.30.) Similar provisions appear in rules for delegation of other federal environmental permitting programs. (An earlier post about a different permit appeal controversy also  cites the federal rule on judicial review of Clean Air Act permits.)

Under federal law, any person “suffering legal wrong because of agency action or adversely affected or aggrieved by agency action… is entitled to judicial review” of an environmental permitting decision. 5 U.S.C. § Section 702. An administrative appeal is the first and necessary step for judicial review under state law. By imposing new conditions on a citizen’s ability to  file an administrative appeal,   House Bill 374 could prevent a person  harmed by a permitting decision from obtaining  judicial review they would be entitled to under federal law.  That appears to violate federal rules for delegated environmental permitting programs.

The  limits in H 374  on issues and evidence introduced at hearing also mean state judicial review will be much narrower than  federal judicial review of an environmental permit. Appeal of an EPA-issued Clean Water Act permit goes through a federal administrative hearing where new evidence can be introduced. The record of the federal administrative hearing — including testimony and new evidence — can then be considered by a court. Under H 374, appeal of a state-issued Clean Water Act permit would be based  solely on the original permitting materials, limiting the evidence a court could consider on judicial review.  As a result, the scope of judicial review under H 374 would be narrower than review available under federal law.

The Senate changes to House Bill 374, including the environmental appeal provision, go back to the House for approval. House agreement to the Senate changes would send the revised bill to the Governor.  If the House fails to agree to the Senate changes, a conference committee of Senators and House members would be appointed to work out the differences between the two.

President Trump’s Budget: State Environment Programs

June 9, 2017.   Now that the Office of Management and Budget (OMB) has released detailed budget documents, the impact of President Trump’s proposed  budget has become more clear.  In addition to eliminating some federal grants altogether  (see an earlier post), the President’s budget would significantly reduce federal funds supporting basic state environmental protection programs. The tables below have  been based on the percentage reduction to each  federal grant category proposed in the President’s budget as applied to the certified 2016-2017 state budget for the corresponding program.  Additional detail not available in OMB documents comes from a budget analysis   prepared by the Environmental Council of States (an organization of state environment officials).

The President has proposed a 30% reduction in grants to the states to carry out federal Clean Water Act, Clean Air Act and Safe Drinking Water Act permitting and enforcement programs. The proposed budget makes significant cuts in funding to  support federal environmental protection programs delegated to the states, although not at the level  in the “skinny budget”. OMB budget documents now  show  a 30% reduction in those state grants.  Since federal grants provide 50% of the total funding for North Carolina’s Clean Water Act, Clean Air Act and Safe Drinking Water Act  programs,  a 30% cut in those federal grants would create a  big hole in budgets for state permitting and enforcement.  The result (by comparison to certified state budget for 2016-2017):

N.C. Clean Air Act Implementation (Permitting and Enforcement)
Total Need Federal Grant Federally Funded President’s Budget Program Impact
 $4,854,105  $2,482,845       50%   -30%  -$744,853 (15%)
Clean Water Act  Implementation (Permitting and Enforcement)
Total Funding Federal Grant Federally Funded President’s Budget Program Impact
$14, 160,554 $6,662,950        50%              -30%       – $1,998,885 (14%)
Safe Drinking Water Act Implementation (Permitting and Enforcement)
Total Funding Federal Grant Federally Funded President’s Budget Program Impact
  $5,870, 612         $ 3,316,895      > 50%      -30%    – $1,459,433 (25%)

The President’s budget makes significant cuts to funding for programs addressing hazardous waste and petroleum contamination.

Superfund.  The federal Superfund program addresses contaminated sites nationwide that pose the greatest risk to human health. The U.S. Environmental Protection Agency takes the lead on assessment and cleanup of those “national priority” sites. North Carolina has around  40 designated Superfund sites contaminated by pesticides, solvents and other hazardous substances. (For more information,  see the EPA list  of N.C. Superfund sites.)  The President’s budget proposes to cut funding for Superfund cleanups  by 30%.

Petroleum underground storage tanks (USTs): The budget significantly cuts federal  grants to address past petroleum contamination and to regulate  USTs to prevent future contamination. As a geographically large and  rural state, North Carolina has nearly 20,000 properties contaminated by petroleum leaks from gas station or convenience store gas pumps.   The President’s budget appears to reduce federal funds to assess and cleanup up past contamination  by 30%. The budget entirely eliminates grant funds to support state regulatory programs enforcing  federal standards to prevent future UST leaks.  

“Brownfields” redevelopment. The federal Brownfields program supports cleanup and redevelopment of contaminated properties. EPA makes grants for individual redevelopment projects and provides grants to state programs promoting cleanup and redevelopment of contaminated properties. Brownfields grants can be particularly important to redevelopment of urban areas that might otherwise be under-utilized because of concerns about environmental contamination and liability. The President’s budget  cuts direct federal Brownfields grants by 14% and reduces grants to state Brownfields programs by 30%. North Carolina’s Brownfields program — supported entirely by developer fees and federal grant funds —  has leveraged over  $10 billion in private development since 1997.

President Trump’s Budget: Zero-Funding Energy and Environment Programs

May 31, 2017. President Trump’s proposed budget would completely eliminate a number of environmental programs. Some of those programs fund state activities to protect against environmental harm, increase energy efficiency, build water/sewer infrastructure and respond to natural disasters. Below, some of the programs zero-funded under the President’s budget*:

EMERGENCY RESPONSE

♦ Federal Emergency Management Agency (FEMA) flood zone mapping/flood risk analysis. As part of the federal flood insurance program, FEMA maps flood zones along rivers, streams and ocean shorelines.  Flood zone maps have to be updated as shorelines respond to subsidence or sea level rise and upland development increases runoff.  The federal flood insurance program uses the maps to set flood insurance rates; the maps also affect state and local construction standards in flood hazard areas. The President’s budget assumes flood zone mapping should be funded by the residents of flood hazard areas and by state governments.

♦ Emergency food and housing grants. FEMA provides grants to states for  emergency food and housing needs following natural disasters. The grant funds would be eliminated as duplicative of other programs; federal budget documents also indicate these needs should largely be a  state responsibility.

ENERGY

♦ Energy Star Program.  The  Energy Star program (developed by the Department of Energy and the Environmental Protection Agency) rates household appliances for energy and water efficiency.  Energy Star ratings on high efficiency washers, dryers, dishwashers, refrigerators and other appliances allow consumers to compare energy/water usage and potential cost savings over the life of the appliance. The President’s budget assumes that this kind of consumer rating program can and should be provided by the private sector.

♦ Weatherization Assistance Program. This Department of Energy  program provides grants to the states to weather-proof housing for low-income residents. The weatherization program’s goals are to increase energy efficiency and reduce energy bills for low income homeowners.

♦ State Energy Program funds. These Department of Energy grants support state energy initiatives, including programs to increase the energy efficiency of state buildings and infrastructure.

COASTAL PROGRAMS

♦ Coastal Zone Management Act Grants. National Oceanic and Atmospheric Administration (NOAA) grants support state coastal management programs. A NOAA grant provides about 50% of the funding for North Carolina’s coastal program, which regulates development affecting significant coastal resources such as coastal wetlands, public trust waters, and ocean/inlet shorelines.

♦ National Estuarine Research Reserves. NOAA also provides significant funding for coastal natural areas set aside for conservation, research and education. North Carolina  has four Estuarine Research Reserves: Currituck Banks, Rachel Carson, Zeke’s Island and Masonboro Island. NOAA  grants provide about 75% of the funding for management of the N.C. Estuarine Research Reserve sites.

♦ Sea Grant.   The federal Sea Grant program supports university-based coastal research and extension services in 33 states and territories on the coasts and Great Lakes. North Carolina’s Sea Grant program, based at North Carolina State University,  provides scientific, engineering and legal expertise on coastal issues including wetlands protection, aquaculture, and shoreline stabilization. You can find a description of N.C. Sea Grant programs and activities here.

WATER/WASTEWATER INFRASTRUCTURE

♦ Rural Water/Wastewater Disposal Program. This Department of Commerce program provides  water and sewer grants to rural communities.  The President’s budget would eliminate the program as duplicative of infrastructure loans provided through the larger Clean Water and Drinking Water State Revolving Fund (SRF)  programs.  Unlike the SRF programs, however, the Rural Water and Wastewater Disposal Program provides grants that can  be used to support rural economic development.  SRF loans must be used to upgrade existing water and sewer systems to meet Clean Water Act and Safe Drinking Water Act  standards; the loans cannot be used to extend a water or sewer system just to serve new economic development.

ENVIRONMENTAL PROTECTION AGENCY

♦ Geographic environmental restoration programs.  The President’s budget eliminates funding for a number of regional water quality restoration programs. Most of the programs involve coordination among states and the federal government to solve pollution problems in multi-state water bodies like Chesapeake Bay and the Great Lakes.

♦ Chemical Safety Board.   The Chemical Safety Board — made up of independent experts —  investigates chemical accidents and releases. In North Carolina,  the Chemical Safety Board has investigated and identified the cause of several incidents, including the 2006 explosion and fire at a hazardous waste facility in Apex that forced the evacuation of 16,000 people.

♦ BEACH program. This EPA program provides  grants to support state monitoring of beach water quality during the swimming season. In North Carolina, the Division of Marine Fisheries receives  BEACH funding to support the state’s Recreational Water Quality Program. The state program  tests the water quality at  240 swimming areas weekly between April 1 and October 31. The water quality monitoring allows the agency  to warn the public — and if necessary close a beach for swimming — if  bacteria reaches unsafe levels.

* Based on budget documents released by the Office of Management and Budget and informed by additional analysis provided by the Environmental Council of States (an organization of state environmental officials.)

“Aerosolizing” Landfill Leachate

May 19, 2017.   A bill under consideration by the N.C. General Assembly,   House Bill 576 , requires the Department of Environmental Quality (DEQ) to allow “aerosolization of leachate and wastewater as an acceptable method of site management” at a lined municipal solid waste landfill and gives DEQ discretion to allow the practice at unlined landfills.  The bill passed the N.C. House and has been sent to the Senate.

A definition of terms.

“Leachate” is the liquid produced by water (including rainfall) percolating through landfilled waste. State rules require landfills to contain leachate onsite or treat the leachate before discharging it.   Treatment may occur onsite; offsite through a municipal wastewater treatment system; or by land-application of leachate to vegetation.  Since leachate would be considered to be wastewater, discharge often requires a Clean Water Act permit.

“Municipal solid waste landfill”  means a landfill — whether operated by a city, a county or a private waste management company — that receives household trash and  other commercial and industrial waste collected for disposal. MSW landfills do not dispose of hazardous waste or medical waste generated by diagnosis, treatment and  research facilities.

“Aerosolization”  involves spraying untreated landfill leachate into the air, allowing solids to resettle and  liquids to evaporate. Land-application systems direct leachate toward the ground for absorption by vegetation;  aerosolization systems direct the leachate high into the air to facilitate evaporation.   In 2016,  Republic Services (a major commercial landfill operator in the state)  made a presentation to the legislature’s Environmental Review Commission describing aerosolization and promoting the systems as a less expensive alternative to both conventional wastewater treatment and land application of leachate.

Scope of the bill. House Bill 576 requires DEQ to allow aerosolization of leachate at lined municipal solid waste landfills and allows DEQ to approve  aerosolization of leachate at unlined landfills.  The bill sets no standards for aerosolization of landfill leachate and does not expressly give either DEQ or the Environmental Management Commission authority to set standards for the practice. The bill also waives water and air quality permitting requirements for the aerosolization system if evaporation  of leachate “results in a zero-liquid discharge and is not a significant air contamination source”.

Questions:

1. Does aerosolization  of untreated landfill leachate from municipal solid waste landfills present a risk of exposure to  viruses and bacteria?    Unlike limited purpose landfills (such as those receiving only construction and demolition debris),  municipal solid waste (“MSW”) landfills receive food waste, diapers, and other personal care products that may carry viruses and bacteria. There does not seem to be readily available  information on  the potential for increased human or wildlife  exposure to viruses and bacteria as leachate becomes aerosolized and potentially wind-borne.

Without more information on the persistence of viruses and bacteria under different conditions, it is difficult to assess the risk of aerosolizing MSW leachate and develop management measures to limit the risk.  An EPA study found that viruses can survive in landfill leachate for weeks or months in moderate temperatures. A Nebraska study found that avian influenza viruses may survive in landfill leachate for up to two years.

North Carolina’s Division of Waste Management has approved four demonstration  projects for aerosolization of  landfill leachate; one involved a small-scale project at a Republic Services landfill.  The process has not been used to scale at a MSW landfill in North Carolina and  I have not found an instance of any other state permitting an evaporation system at a MSW landfill. As a result, data on the potential health risk of  aerosolizing MSW leachate either doesn’t exist or is not readily accessible.

2. Are existing  state rules sufficient to manage risk associated with aerosolization of MSW leachate?  North Carolina’s landfill rules require  a 50-foot buffer between each waste disposal area and the landfill property boundary. Rules that apply to landfills permitted before 2007 require a 50-foot buffer between waste disposal areas and a river or stream.  Landfills permitted since 2007 must maintain a  200-foot buffer between the waste disposal area and a perennial stream or wetland, although DEQ  can approve a narrower buffer (no less than 100 feet) based on local circumstances. See Session Law 2007-550.  A  500-foot buffer must be maintained between the waste disposal area and a home or water supply well.

A 2016  presentation  on leachate management by SCS Engineering noted some considerations in use of evaporation systems including:

♦ Risk of overspray and wind gusts

♦ Worker exposure to aerosolized leachate

North Carolina’s  waste management rules do not address these concerns and the potential risk to landfill workers or to people and wildlife beyond the landfill boundary.  Existing landfill buffer requirements were developed to manage the impact of buried waste and active landfill operations on waters, wetlands and adjoining property owners — not as a safety factor for aerosolization of landfill leachate and possible drift.

State  waste management rules require landfills to comply with air quality standards,  but the cross-referenced standards focus on air pollutants regulated under the Clean Air Act rather than bacteria and viruses. House Bill 576 exempts aerosolization systems from air quality permitting requirements as long as the system would not be a “significant air contamination source”. The bill does not define what would constitute a “significant” air contamination source.

The  knowledge gaps, lack of risk management guidance, and absence of standards for use of evaporation systems at municipal solid waste landfills suggests a need for  more study.

NC Senate: Proposed 2017 Budget

May 10, 2017.  Some highlights of the state budget proposed by Senate leadership as it affects environmental programs:

Money. The Senate budget continues  a nearly 10-year trend of cuts in environmental programs. An earlier post described some of the impacts of previous  budget cuts that began with the  2008 recession (including a 9% reversion of already-budgeted funds in 2009) and continued after the economy began to recover.

The Senate’s proposed budget for 2017 would reduce state appropriations to the Department of Environmental Quality (DEQ) by nearly $7 million.  That represents a 10% reduction in state appropriations and a 3% reduction in the department’s overall budget (which also includes federal grant funds and permit fees).

The reductions include:

♦ A $3.5 million discretionary cut,  which means DEQ will have to identify  reductions within the department’s operating budget.

♦  A $1 million transfer of funds  to the N.C. Department of Agriculture and Consumer Services (DACS) to challenge an EPA rule defining federal jurisdiction under the Clean Water Act. Under the McCrory administration, DEQ had joined  a number of other states in suing over the federal rule.  The Cooper administration dropped out of the litigation and the Senate provision would fund DACS  to continue the state’s participation in that litigation.

♦ The budget eliminates  56.5 positions from existing DEQ programs:

      32.5 positions in the Division of Environmental Assistance and Customer Service. Those cuts affect non-regulatory waste reduction, recycling,  water/energy efficiency and  permit assistance programs. The cuts would effectively eliminate DEQ programs that work with business/industry to voluntarily reduce waste generation which allows those businesses and industries  to reduce their regulatory burden and save money.

      14 regional office support positions. DEQ’s seven regional offices house frontline permitting and enforcement staff for multiple environmental programs. The legislature has targeted DEQ  regional offices for staff cuts in the past. This provision requires a reduction of an additional 2 positions in each  regional office. It is not clear which DEQ programs would be affected.

      5  administrative positions. The Senate bill  identifies specific jobs for elimination, including  DEQ’s Chief Deputy Secretary,  the Legislative Affairs Program Manager; a communications position; and the last two environment education positions remaining in the department.

      3 positions in the N.C. Geodetic Survey

      1 position in the Land Quality Section of the Division of Energy, Mineral and Land Resources

      1 position in the Division of Marine Fisheries

Policy provisions in the budget bill. The budget bill includes a number of changes in state law or policy related to environmental programs:

♦  Conditions on use of funds the state may receive as a result of the U.S. Environmental Protection Agency’s settlement with Volkswagen for violations of the Clean Air Act (Sec. 13.2 )  The Senate provision sets criteria for use of the funds and requires legislative approval of a DEQ plan for the funds.

♦  A provision  that allows the owners of old landfill sites to avoid environmental cleanup requirements by: 1. Accepting liability for onsite and offsite contamination; and 2. Providing financial assurance for any environmental harm.  There is an exception for property owners who did not receive compensation to accept local government waste for disposal. The provision affects a state program to assess and cleanup contamination associated with landfills and trash dumps that never met standards for solid waste landfills adopted in 1983. (iSec. 13.4).

♦  Changes to laws governing the Marine Fisheries Commission (Sec. 13.17) . The provision reduces the MFC from nine members to seven members and requires a super-majority of five  members to take any action — including adoption of rules. As with most state commissions, current law only requires a simple majority of the MFC to take most actions although a super-majority is required for adoption of fisheries management plans.

♦  A moratorium on wind energy projects (Sec. 24.2). The bill would prevent DEQ from issuing permits for new wind energy projects until December 31. 2020. During the moratorium, the bill would require a study of the impact of wind energy facilities on military operations in the state. Note; the process for approval of wind energy facilities already requires Federal Aviation Administration review and  input from military  installations.

Pigs (Again) Update

April 26, 2017. Yesterday, the Senate Agriculture, Environment and Natural Resources Committee approved a revised version of House Bill 467. The Senate changes resolve some of the questions  noted in the earlier post  about the bill’s impact on availability of punitive damages and compensation for injury other than lost property value.

The version approved by the Senate committee has a new subsection that reads:

(d) This Article does not apply to any cause of action brought against an agricultural or forestry operation for negligence, trespass, personal injury, strict liability, or other cause of action for tort liability other than nuisance, nor does this Article prohibit or limit any request for injunctive relief or punitive damages that are otherwise available.

The Senate language:

♦ Expressly allows an award of punitive damages against an agricultural or forestry operation based on existing standards in North Carolina law.

♦ Makes it clear that the bill does not limit compensation a plaintiff can receive under legal theories other than nuisance — including negligence, trespass, strict liability “or other cause of action for tort liability other than nuisance”.  In legal-speak, a  “tort” means a wrongful act injuring another person and recognized by law as the basis for a civil lawsuit. The injury may be damage to reputation or property as well as physical injury.

Under “strict liability”,  a person can be held legally responsible for harm even if there is no evidence of negligence. Historically, strict liability  has applied only to  a very narrow set of activities considered to be ultrahazardous —  the classic example has been use of explosives. Few (if any) activities associated with an agricultural or forestry operation would fall under strict liability standards.

As applied to agricultural and forestry operations,  the  most significant implications of the Senate language are:  1.  recognition of a plaintiff’s ability to  receive compensation (beyond fair market value of the property) for harm caused by negligence or trespass;  and 2. preservation of the potential for punitive damages in a particularly egregious nuisance case.

One reference in the new Senate language is not like the others — unlike  nuisance, negligence, or trespass, “personal injury” in itself is not a cause of action.  Instead, “personal injury” describes a type of harm the plaintiff may have suffered as a result of negligence, nuisance, trespass or some other tort.

The House version of H 467 limited damages for nuisance to fair market value or fair rental value of the property affected — apparently excluding compensation for health effects caused by the nuisance condition. Given the context, It isn’t clear  whether the Senate language  intends to allow compensation for  health effects in a nuisance action against an agricultural/forestry operation — or simply acknowledges the possibility of compensation for personal injury under another legal theory such as negligence.

The bill has now been referred to a Senate Judiciary Committee for review before going to the Senate floor.

Pigs (Again)

April 25, 2017. Two weeks ago, the  N.C. House quickly approved a bill limiting the money damages available to a plaintiff who wins a nuisance lawsuit against an agricultural or forestry operation. According to the bill title,  House Bill 467    “clarifies” the compensation available to a person whose property use has been negatively affected by agricultural or forestry activities.

The backstory.  In  2014, multiple nuisance lawsuits representing hundreds of North Carolina plaintiffs  were filed against Murphy Brown LLC (the grower subsidiary of Smithfield Foods)  in federal court. The plaintiffs  allege that odors, ammonia emissions, pests and other conditions associated with nearby swine farms negatively affect the use of their property.  A 2015 Charlotte Observer story provides a good overview of the claims.  The nuisance cases allege  many of the same problems described in a separate civil rights complaint concerning N.C. swine farms  filed in 2014. (That complaint remains under investigation by the U.S.  Environmental Protection Agency; see a previous post for more on the environmental justice complaint and EPA’s preliminary response.)

H 467 limits compensation available to a person who successfully proves an agricultural or forestry operation has created noxious conditions that interfere with use of their property. As originally introduced, the bill limited compensation available in both  pending and future lawsuits.  In a letter to the News and Observer, Rep. Jimmy Dixon described the bill as a necessary response to greedy lawyers who “want to sue farmers for outrageous sums without having to prove real damages”.   Although more broadly worded, H 467  clearly responded to the pending nuisance lawsuits against swine operations.

The General Assembly has acted to protect agricultural operations from nuisance lawsuits before. North Carolina has had a “right to farm” law since 1979.  Under G.S.  106-701, an agricultural  operation that has been in existence for a year cannot be considered a nuisance based on changing conditions around it.    “Right to farm” laws (adopted in nearly every state) attempt to protect  farms  from nuisance claims by people who later buy property near the farm  — presumably with knowledge of the existing agricultural activity.  In 1991, the N.C. legislature amended G.S. 106-701  to extend the same protection against nuisance lawsuits to forestry operations.

How H 467 Would Affect Compensation for Nuisance.  “Nuisance” means interference with the use and enjoyment of another person’s property.  For example, plaintiffs in the pending swine farm nuisance cases allege conditions created by farm operations (including odor, pests, and exposure to ammonia emissions)  have caused health problems and restrict outdoor activities.  H 467  limits the money damages that a plaintiff who successfully proves a case of nuisance can recover as compensation. Under the bill, compensation for a nuisance condition caused by an agricultural/forestry operation would be limited to either the fair market value of the property affected (for a permanent nuisance) or the fair rental value (for a temporary nuisance).

Historically, North Carolina case law has recognized other types of nuisance damages such as injury to a business.  One case allowed compensation for water pollution that damaged a downstream fishing/ fish processing operation.  Nuisance cases have also sometimes alleged health problems caused by the nuisance condition. H 467 does not allow a plaintiff to recover damages for a business loss  or compensation for negative health effects. The only compensation for an agricultural/forestry nuisance allowed under the bill would be the fair market value or fair rental value of the plaintiff’s property.  (I do not know whether compensation for health effects could be available under a legal theory other than nuisance.)

The bill may also bar award of punitive damages, which a court can award to punish and deter bad actors.    In  North Carolina, G.S. 1D-15 allows the court to award punitive damages  if the defendant has been found liable for compensatory damages (such as lost property value due to nuisance conditions) and the plaintiff proves one of three aggravating factors: 1. fraud 2. malice or 3. willful or wanton conduct.  Willful or wanton conduct means “the conscious and intentional disregard of and indifference to the rights and safety or others, which the defendant knows or should know is reasonably likely to result in injury, damage, or other harm.”  See G.S. 1D-5 (7).   Without further clarification,  H 467 may be interpreted to prevent an award of punitive damages even if the defendant willfully ignored the likelihood of harm to nearby property or acted in violation of state law.

The Scope of H 467. The bill, as first introduced, would have applied to both pending nuisance lawsuits and future lawsuits. Two prominent Republican lawyers, former N.C. Supreme Court Justice Robert Orr and former Representative Paul Stam, raised questions about the constitutionality of limiting compensation available under pending lawsuits.  In response to those concerns, the bill was amended to apply only to future nuisance lawsuits;  the House then adopted the bill as amended.

H 467 also contains a provision that extends the limitation on nuisance damages to “any private nuisance claim brought against any party based on that party’s contractual or business relationship with an agricultural or forestry operation”.  The language most likely  intends to protect parent corporations sued as a result of nuisance conditions created by a subsidiary or contractual supplier. For example, the limit on damages would apply to Smithfield Foods as the parent company of Murphy Brown LLC even though Smithfield Foods itself would not be considered an “agricultural operation”.

Status of the bill. Having passed the House, H 467 still needs Senate approval. The bill has been scheduled for discussion in the Senate Agriculture, Environment and Natural Resources Committee today. If the bill receives the committee’s endorsement, it would go back through the Senate Rules Committee before reaching the Senate floor. (Note: Bills often pop out of the Rules Committee without warning.)

Bonus literary tip — A  favorite children’s picture book by David McPhail describes a different kind of piggy  nuisance.

Pigs and the Civil Rights Act Part II: The Earth Justice Complaint

April 6, 2017. An earlier post described the intersection of environmental permitting and civil rights laws in the environmental justice movement. A  2014 environmental justice complaint filed by Earth Justice, REACH and the Waterkeepers  (the “Earth Justice complaint”)  argues the state of N.C. has discriminated against African-American, Latino and Native American residents by issuing a general permit for swine farm waste management systems that fails to protect those communities from air and water pollution. On January 12, the U.S. Environmental Protection Agency (EPA) sent a “Letter of Concern” to the Department of Environmental Quality (DEQ) about possible discrimination against minority residents as a result of the swine waste general permit. This post will look at the basis for the Earth Justice complaint and the significance of EPA’s letter.

First, what is a general permit? An individual permit covers a single facility; a general permit covers a category of facilities.   The  state general permit for swine farms covers swine farms with more than 250 animals (the number triggering the need for a  state permit).  Most  swine farms in North Carolina meet state permitting requirements by qualifying for coverage under the general permit. The general permit allows farms to use large open lagoons to store and treat swine waste and spray liquid waste on crops as a fertilizer. Permit conditions prohibit discharge of waste to rivers and streams; require measures to maintain the structural integrity of waste lagoons; limit spray irrigation of wastewater to avoid runoff and groundwater contamination; and require other management practices to reduce environmental impacts.  The Department of Environmental Quality (DEQ) has  reviewed and reissued the general permit about every five years since issuance of the first general permit in 1997.  The Earth Justice complaint concerns the most recent version of the general permit issued by DEQ in 2014.

For purposes of this post, I  will assume the Earth Justice complaint correctly describes the racial makeup of communities near large swine farms. The next question would be:  What does the Civil Rights Act of 1964 require of the state?

The Earth Justice complaint. The most significant issues:

Failure to do a disparate impact analysis.  The complaint contends DEQ failed to determine whether the state swine farm general permit has a disparate impact on African-American, Native American and Hispanic communities. A disparate impact analysis determines whether policies that appear racially neutral have a greater negative impact on minority communities in practice. It seems indisputably true that the state has not considered the racial or ethnic makeup of communities near swine farms in adopting laws, rules and permit conditions for operation of those facilities.

Failure of the swine farm general permit to protect minority communities. The complaint then argues the general permit fails to protect minority communities from environmental and health impacts, such as well contamination, odors,  and exposure to ammonia emissions.  The complaint questions the adequacy of specific permit conditions (such as setbacks between sprayfields and drinking water wells),  but essentially faults the state for continuing to allow existing swine farms to use conventional lagoon and spray field systems to manage swine waste.

Unlawful intimidation of a person who complains of discrimination.  After mediation efforts collapsed in 2016, the complainants added a new allegation of intimidation. EPA took the intimidation charge seriously and discussed evidence of intimidation at some length in the January 12, 2017 letter to DEQ.  The EPA letter cites reports of intimidation by swine farm operators or employees rather than by DEQ staff.  but emphasizes  DEQ’s responsibility to prevent or effectively respond to reports of intimidation.

This post will focus on the allegation that N.C.’s swine farm general permit fails to protect minority communities.

North Carolina’s history with lagoon and sprayfield systems. Lagoon and sprayfield systems are the most common method of swine waste management, but have also been controversial since the 1990s.  Explosive growth in North Carolina swine operations and several large swine waste spills raised public concern and attracted legislative attention.  In 1997,  the legislature tightened permitting requirements and put a temporary moratorium on construction of new  or expanded swine farms using conventional lagoon and sprayfield systems. The legislature extended the temporary moratorium several times before permanently barring construction of new or expanded swine farms using lagoon and sprayfield systems in 2007. As a result, all of the farms covered by the state general permit began operation before March 1, 1997.

Those existing swine farms have continued to use  lagoon and sprayfield systems while the state researched more environmentally  friendly alternatives. In  2000, the state commissioned a  N.C. State University (NCSU) study funded by  an agreement with Smithfield Foods and other swine producers to identify “environmentally superior” waste management technologies. Under the “Smithfield Agreement”,  Smithfield Foods agreed to convert company-owned swine farms to a waste management technology identified by NCSU as environmentally superior to the lagoon/sprayfield system and both operationally and economically feasible.   An “environmentally superior” technology would:

(1)        Eliminate the discharge of animal waste to surface water and groundwater through direct discharge, seepage, or runoff.

(2)        Substantially eliminate atmospheric emission of ammonia.

(3)        Substantially eliminate the emission of odor that is detectable beyond the boundaries of the parcel or tract of land on which the swine farm is located.

(4)        Substantially eliminate the release of disease-transmitting vectors and airborne pathogens.

(5)        Substantially eliminate nutrient and heavy metal contamination of soil and groundwater.

In 2006, NCSU’s  Dr. Mike Williams identified several innovative technologies that in combination met the environmental standards and could be operationally/economically feasible for use on new farms.  But Dr. Williams concluded none of the technologies would be economically feasible for use on existing farms because of conversion costs.     Dr. Williams has reviewed new generations of those technologies since 2006. Although costs for some technologies have come down, Dr. Williams  has still not designated any technology as  economically feasible for use on existing swine farms. Dr. Williams’ last update appears to have been issued in 2013.

On a separate track, the N.C. legislature included a set-aside for energy generated by capturing methane from swine waste systems as part of the state’s 2007 Renewable Energy Portfolio Standard (REPS).   One purpose of the set-aside was to encourage development of swine waste-to-energy systems that may have the additional benefit of reducing environmental impacts including odors and ammonia emissions. Several companies have begun development of swine waste-to-energy systems, but for technical reasons those projects have been slow to reach completion.

So the state has recognized potential problems with lagoon and sprayfield systems and invested time, energy and money in researching alternatives.  But the state has not required farms to adopt new technologies or imposed significant additional conditions on operation of existing systems. In questioning the decision to continue permitting lagoon and sprayfield systems, the Earth Justice complaint  puts that 20-year state policy debate and the decision not to impose additional regulatory requirements  in the context of racial discrimination.

The U.S. Environmental Protection Agency.  When mediation of the Earth Justice complaint fell apart in 2016, EPA reopened review of the complaint under Title VI of the Civil Rights Act.  EPA has not completed its investigation, but the  January 12 letter set out preliminary findings. The letter expressed concern that the state swine farm general permit may discriminate against minority communities and recommended specific steps to address the concern.  Some of the recommendations are procedural,  such as creation of a grievance procedure and designation of a DEQ staff person to coordinate response to environmental justice complaints as required under EPA rules. Other recommendations require review of  N.C. laws, rules and enforcement policies on swine operations.

Historically, federal environmental justice  guidance focused on the permitting process rather than environmental standards. EPA emphasized providing information and outreach to minority communities; encouraging minority participation in permit reviews; and considering impacts to minority communities in  environmental impact statements and federal air quality decisions. (See the earlier post for detail on the 1994 Federal Executive Order on environmental justice and the requirements of EPA rules.)  The January 12  EPA letter took the unusual path of recommending review of  both the general permit conditions and state rules to determine whether environmental standards should be changed to reduce impacts to minority communities.  EPA noted the Smithfield Agreement study and other research  identified practices that can minimize  impacts,  but are not required under current state rules.  Examples cited by EPA included: covering waste lagoons; limiting the time of day for land application of waste; eliminating some methods for handling dead animals.

Issued in the final days of the Obama administration, the EPA letter hints at a newly broad application of civil rights principles to state environmental policy decisions. The letter suggests  the Civil Rights Act may require state regulators to change environmental standards if existing standards do not adequately protect minority communities. Environmental regulations have traditionally been shaped by seemingly race-neutral factors  — health and ecological effects balanced by economic considerations. The Earth Justice complaint and EPA’s preliminary response question whether the result of the regulatory process has been race-neutral.   EPA provides little guidance to the state on the role race should play in environmental regulation beyond hinting that if the state can do more to reduce impacts to minority communities, it should. Perhaps the question in the background is this:  Can a  disproportionate impact on minority communities be a sign that the race/ethnicity of the people being affected influenced the state’s willingness to tolerate negative impacts?

What comes next?  Under the usual EPA process for environmental justice investigations, the state has an opportunity to respond to preliminary findings by either carrying out the EPA recommendations or suggesting a different response.   DEQ Secretary Michael Regan quickly indicated an intent to follow up on EPA’s concerns and work with stakeholders to reach a resolution. If the state does not satisfy EPA’s concerns and EPA makes a formal finding of discrimination, the ultimate penalty could be withdrawal of federal funds from DEQ.

In the meantime, EPA leadership has changed.    A week after EPA sent the January 12 letter, the Trump administration took office.   Budget cuts proposed by the Trump administration reportedly include elimination of EPA’s environmental justice program which provides grant funding and policy direction to environmental justice efforts. Although EPA would still  have an obligation to comply with the Civil Rights Act,  the budget proposal signals a lack of Trump administration concern about environmental justice concerns.   If that causes EPA to step back from environmental justice complaints, it  will likely be up to the state to decide whether and how to resolve these issues.

The Federal Budget and North Carolina’s Environment

March 24, 2017.  Last week, the Trump administration released the Trump Budget Blueprint which describes in very general terms the President’s budget proposals for federal agencies.  The Blueprint just opens the debate on the 2018 federal budget.  Congress will significantly influence the final budget and members from both parties have already expressed concern about some of Trump’s proposed budget cuts.   Percentage-wise, the deepest cuts in the Trump Budget Blueprint affect the Environmental Protection Agency.  As background for the coming federal budget debate,  this blogpost looks at the potential impact of the Trump budget plan on key state environmental protection programs.

Based on preliminary reports, the North Carolina Chapter of the Sierra Club provided a guide to the potential impact of the Trump budget the day before actual release of the Budget Blueprint. (Full disclosure — I assisted in preparation of the Sierra Club report.)  For each  major state environmental protection program, the report shows the percentage of the program budget currently funded by federal grants and the impact of cuts identified in the Trump budget plan. The report also provides information on other  DEQ activities supported by  federal grants that may be eliminated under the Trump administration’s  budget plan.

I want to focus on information in the Sierra Club report about impacts to Clean Air Act, Clean Water Act and Safe Drinking Water Act programs in North Carolina.   EPA  has delegated federal permitting and enforcement authority under those laws to the state’s Department of Environmental Quality (DEQ). EPA provides oversight to ensure the state programs meet federal requirements,  but DEQ has responsibility for day to day implementation.  DEQ issues Clean Water Act permits for wastewater discharges; Clean Air Act permits for  air emissions and air pollution control equipment; and Safe Drinking Water Act permits for public water systems.  DEQ also enforces water quality, air quality and drinking water standards.  In return for the state taking on those federal permitting and enforcement responsibilities, EPA provides program implementation or “categorical” grants to partially offset the cost.

The Trump Budget Blueprint does not provide detail on many cuts, but specifically proposes a 45% reduction in the EPA categorical grants that support basic state Clean Water Act, Clean Air Act and Safe Drinking Water Act programs. The tables below put the proposed cut in the context of each delegated program’s budget. Some notes on the numbers:

♦ “Total Need” means the complete budget (from all funding sources) for the delegated Clean Air Act, Clean Water Act and Safe Drinking Water Act program.

♦  Both the “total need” and federal funding numbers come from the certified state budget for the 2016-2017 fiscal year.

♦  These numbers only cover the EPA categorical grants for the delegated federal permitting/enforcement programs.  The numbers do not reflect separate federal grants for targeted research or pollution reduction projects like  the Albemarle-Pamlico National Estuary Program. Some of those federal grants reportedly have been targeted for elimination in Trump administration budget plans.

♦ The proposed federal funding cuts shown below are higher than those show for these same programs in the Sierra Club report because the final Trump Blueprint increased the percentage reduction over those reported earlier.

N.C. Clean Air Act Implementation

Total Need Federal Grant % Federally Funded Proposed Federal Funding Cut
$4,854,105 $2,482,845  50% – 45%

Clean Water Act Program Implementation 

Total Need Federal Grant % Federally Funded Proposed Federal Funding Cut
$14,160,554 $6,662,950   50%  -45%

Safe Drinking Water Act Program Implementation 

Total Need Federal Grant % Federally Funded Proposed Federal Funding Cut
$5,870,612 $3,316,895 50% – 45%

In sum: EPA grants provide 50% of the funding for each of the major environmental permitting and enforcement programs delegated to the state under federal law. A 45% reduction in the federal grant would result in a cut of nearly 25% to each of those state programs.  As discussed in an earlier post, many N.C. environmental protection programs have already experienced significant reductions in state funding since 2009-2010. The water quality program has been particularly hard hit.

Deep cuts to the federal grants would force the state to decide whether to make up the loss of federal funds with increased state appropriations from tax revenue or higher permit fees. The alternative would be to accept further erosion of those programs. The question may be particularly acute for the air quality program which is now entirely supported by the federal grant and permit fees.

You can find the entire Sierra Club report here .

NOTE: The original blog post has been revised to more accurately describe the release date for the Sierra Club guide and to note that information on  percentage reductions to these particular programs changed (for the worse) after release of the Sierra Club report.