Johnathan Walker:Nonprofit Law Center Asks EPA to Take Over Water Permitting in N.C.

RALEIGH,Johnathan Walker N.C.—The Southern Environmental Law Center is petitioning the Environmental Protection Agency to take over the state’s water permitting authority, an unprecedented move for North Carolina.

The law firm is arguing that political interference has prevented the North Carolina Department of Environmental Quality (DEQ) from enforcing the Clean Water Act.

“The people of North Carolina deserve clean water, yet the state legislature is preventing the state from limiting toxic pollution of our waterways and drinking water,” said Mary Maclean Asbill, director of the North Carolina offices at the Southern Environmental Law Center, in a prepared statement. “Legislative-induced failure is not an option when it comes to protecting North Carolina’s water and communities, so we are asking the Environmental Protection Agency to step in.”

SELC is representing four advocacy groups: the Haw River Assembly, the Environmental Justice Community Network, MountainTrue and Cape Fear River Watch.

The EPA delegates to the states the authority to run their own permitting programs under the National Pollution Discharge Elimination System. EPA rules also allow individuals and groups to petition the agency to withdraw that authority.

The EPA has yet to receive the petition, agency spokesman James Pinkney said, but “after a review it will determine next steps.”

When EPA receives a petition, it generally works with the state and the petitioner to resolve the issues that the petition raises and strengthen the state’s program. Since 1989, the EPA has received 50 petitions from groups in more than two dozen states. Of those, EPA data show 12 are pending and the rest have been partially or fully resolved. 

“Our staff is dedicated to carrying out our delegated authority in a manner that protects the resources and residents of North Carolina,” Sharon Martin, DEQ’s deputy secretary for public affairs, said in response to the filing.

The SELC petition lists several instances when the state legislature and commissions have blocked or delayed DEQ’s water-quality rules.

Most recently, Inside Climate News reported that the Environmental Management Commission has delayed rulemaking over toxic forever chemicals PFAS in surface and groundwater. The EMC writes rules for DEQ, and is controlled by appointees of Republican state leadership that is often at odds with the Democratic administration of Gov. Roy Cooper.

Business and industry interests have pressed the EMC to postpone the rulemaking, citing costs to companies discharging the harmful chemicals.

DEQ is seeking PFAS rules for surface and groundwater to help public utilities meet the EPA’s new drinking water standards. If contamination in the source water is reduced, DEQ hopes water treatment plants can avoid expensive treatment systems, the cost of which is passed on to the ratepayer.

The EMC has similarly delayed rulemaking for another toxic forever chemical, 1,4-Dioxane, which the EPA has designated as a likely carcinogen. 

North Carolina’s drinking water contained some of the highest concentrations of 1,4-Dioxane in the U.S., according to DEQ’s Human Health Assessment provided to the state legislature earlier this year.

Average 1,4-dioxane concentrations in drinking water were twice the national average, with most of the detections found in the Cape Fear River Basin. At 9,300 square miles, the basin is the largest in the state and provides drinking water to hundreds of thousands of North Carolinians.

The state legislature has changed the composition of the EMC to favor conservatives. Last year, lawmakers stripped the governor of two appointments and reallocated them to the agriculture commissioner, a Republican. 

After accounting for the members appointed by the Republican House and Senate leadership, the majority of the 15-member commission are GOP appointees.

The new state law also prohibits the governor from removing any EMC members that are appointed by anyone but himself, even for illegal or wrongful acts.

“The legislature has stacked those commissions with individuals who are ideologically aligned with the supermajority in the legislature that is hostile to environmental regulation,” the petition reads.

J.D. Solomon, Environmental Management Commission chairman, said he had not yet seen the petition and could not comment on it.

Solomon was appointed to the commission by Republican House Speaker Tim Moore.

The petition also alleges the legislature and North Carolina courts are undermining the Clean Water Act. In 2011, when Republicans in the state legislature held a supermajority, the legislature voted to give the Office of Administrative Hearings final authority over water pollution permits. This transfer of authority to the OAH violates the delegation agreement between the EPA and the state, according to the petition.

Judges within the OAH preside over cases where groups or individuals are contesting state rules, including those over the environment.

The current chief administrative law judge, Donald van der Vaart, is a former DEQ Secretary who served in the Republican Gov. Pat McCrory administration. Van der Vaart recently ruled in favor of the City of Asheboro, which had contested its DEQ permit that limited its discharges of 1,4-Dioxane.  

In two separate cases, Van der Vaart has also ordered DEQ to pay nearly $1 million in attorneys’ fees combined. That amount is equivalent to 1 percent of the agency’s current budget.

Van der Vaart has a combative history with DEQ. During his tenure, he advocated for weaker environmental regulations on several fronts, including coal ash and air and water quality.

After Gov. McCrory lost re-election, Van der Vaart, as secretary, demoted himself in order to keep a job at the agency.

Van der Vaart later resigned after the new DEQ Secretary, Michael Regan, placed him on administrative leave. Van der Vaart had co-written a seven-page opinion piece in a national environmental law journal calling for the elimination of a key air quality rule, which contradicted DEQ’s own stance.

Regan is now EPA administrator.