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Bills being considered by the state legislature could change protections against air pollutants.
By Gabe Rivin
The General Assembly has been considering legislation that would prohibit citizens from contesting numerous sources of toxic air pollution, a right currently guaranteed by law.
At the same time, the bill would reduce the state’s supply of air monitors. In at least one recent study, those devices have helped researchers prove that reduced air pollution has improved North Carolinians’ health.
The legislation has been proposed amid the frenetic short session of the General Assembly, which began in mid-May and is slated to end in the coming weeks. Though the bill passed the state Senate, the fate of these two provisions remains unclear, given the sometimes opaque parliamentary maneuvers that frequently occur near the end of legislative sessions.
At issue is Senate Bill 734, the Regulatory Reform Act. The bill is wide reaching; it addresses the state lottery, small-business’ properties and state education rules, among a number of other provisions.
But tucked into the Senate version of the bill were several changes to state rules about air quality.
One section, titled “contested cases for air quality permits,” would minimize the number of scenarios in which citizens could legally protest air-pollution permits.
Many facilities across the state must receive air-quality permits, which set limits on the amount of pollution the facilities can emit. Under current law, citizens have a broad ability to challenge those permits, which are issued by the N.C. Department of Environment and Natural Resources.
Robin Smith, a former assistant secretary for the environment at DENR, said that citizens are important participants in the permitting process.
“When I was at the department, I had a really high level of confidence in the technical staff,” she said. “But even with all of that, there are times when people in a local community are aware of conditions, are more sensitive to an impact, than perhaps someone who is reviewing data in an office.”
Yet SB 734 would set a strict boundary around this sort of citizen participation. It would only allow citizens to challenge air permits dealing with national ambient air-quality standards, according to Smith. These federally mandated standards cover six air pollutants, including ozone, lead and sulfur dioxide.
North Carolina, when issuing air permits, considers the statewide and regional concentration of these pollutants.
But some facilities must receive permits to emit other, more hazardous pollutants. These pollutants are also regulated by the federal government, and they can create more localized air-pollution effects, Smith said. These kinds of pollutants, she said, are much more numerous than the six included in the ambient air standards.
“It’s probably in the hundreds, as opposed to just six, and they’re just regulated differently,” Smith said. These include highly toxic pollutants like mercury and benzene.
But under SB 734, citizens could only challenge permits that address the six ambient air pollutants.
Mary Maclean Asbill, an attorney with the Southern Environmental Law Center, said that this provision would have a large impact on citizens’ abilities to protect their air.
“This just knocks out another leg from citizens trying to act on our own to keep our air and water as clean as it’s always been.”
Smith echoed those claims.
“Most agency decisions stand up pretty well even after going through an administrative hearing process,” she said. “But that doesn’t mean there’s not value – sometimes pretty significant value – to be had in having that other perspective be heard.”
Reduction in air monitors
Under SB 734, DENR would need to seek federal approval to dismantle any ambient air-quality monitors that are not specifically required by federal law. These monitors measure the six pollutants covered by national ambient air-quality standards.
DENR currently operates monitors at 56 sites, said Tom Mather, a spokesman for DENR. Many of those sites have monitors that are not required by federal law. In Sanford, for example, the state installed monitors to measure future air emissions from natural-gas drilling, though this was not federally mandated. (This report, prepared by DENR, lists the monitors that are not required by federal law.)
DENR would need to negotiate this process with the U.S. Environmental Protection Agency. Even if DENR proposed to dismantle a monitor, the EPA may reject the request, Mather said.
Still, a reduced fleet of air monitors could have wide-reaching effects.
For one, it could harm public-health research, according to Kim Lyerly, a professor of surgery at Duke University and the lead author of a new study that associates statewide improvements in air quality with improvements in respiratory health.
The study found what it called “significant” associations between decreases in those six air pollutants and decreases in respiratory-related deaths. Deaths from asthma, emphysema and pneumonia fell as the state has implemented laws to reduce air pollutants, the study found. The study looked at data from 1993 to 2010.
The study relied on air-quality monitors for data, Lyerly said.
“As a scientist, I think, ‘Gosh this data is so important,’” he said. “Why would we not want to take advantage of this important resource to track our health and to determine [if we can] associate improving air quality to not only respiratory diseases but a variety of other diseases.”
William Ross, secretary of DENR from 2001 to 2009 and a co-author of the study, said that the monitors are not only important for public health but that they help industrial applicants too.
“When you start reducing the network, an applicant [for an air-pollution permit] may find itself in the position of not having enough information about the air quality in the region they want to build or modify a plant,” he said.
It’s unclear where the air-monitoring provision originated. In large bills like SB 734, proposals can come from a variety of legislators, according to a legislative aide to Sen. Brent Jackson (R-Autryville), who co-sponsored the bill.
The aide also said that, in a meeting with legislators, DENR staff said that such a cut to air monitors would have minimal effects.
But DENR’s Mather disputes that the department staff would have made that claim.
The News & Observer reported that one of the bill’s co-sponsors, Sen. Trudy Wade (R-Greensboro), said the proposal came in response to looming EPA regulations, which, she claimed, would lessen the state’s requirement to monitor ambient air quality.
EPA’s website does not mention pending rules to reduce ambient air monitoring. Smith, the former DENR assistant secretary, said that she is unaware of any such rules.
Though SB 734 passed in the Senate, the fate of its air provisions remains uncertain in the House.
The House Regulatory Reform Committee split the bill in two. It moved several health care provisions into SB 493, a bill that had previously addressed car headlights. Meanwhile, the committee preserved a variety of regulatory provisions in its version of SB 734, with the exception of several environmental provisions.
Those environmental provisions were moved into SB 38, a bill that originally addressed emergency-management laws. SB 38, now called Amend Environmental Laws 2014, does not limit citizens’ involvement in air permits or dismantle air-quality monitors.
Though SB 38 passed in the House, those provisions could return in a revised version of the bill.
As will be the case if the House passes SB 734 and SB 493, SB 38 will return to the Senate with two options, according to Southern Environmental Law Center’s Asbill.
The Senate may opt to take the bill into a conference committee, where, behind closed doors, members of both chambers would work through a compromise bill to take back to their chambers. The compromise bill could contain new, or previously scrapped, provisions.
The Senate and House would then have to approve the revised bill before sending it to the governor.
The Senate may instead vote to concur with the House’s version of the bill. In this process, the Senate cannot amend a law; the chamber may only vote to approve it. If the Senate takes this route and then approves SB 38, the final, governor-ready bill will not contain the air-permitting provisions or the air-monitoring provisions.