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The North Carolina Senate passed legislation this week that would scramble the state’s current regimen of air toxics rules.
By Gabe Rivin
The North Carolina Senate on Thursday passed a bill that could eliminate numerous air pollution rules in North Carolina.
The bill would gut three sets of pollution rules, requiring a state commission to readopt those rules with supermajority approval. It would also subject those same rules to review by the state legislature.
The bill, Senate Bill 303, was limited when it was first filed. In the original edition of the bill, it would only have prevented the state from adopting federal rules covering wood heaters, such as stoves and fireplaces. But in a hearing on Wednesday, the Senate’s environment committee voted to approve an expanded version of the bill, one that addresses a broader range of hazardous air pollution.
In a short debate on Thursday, the full Senate approved this version of the bill.
SB 303 would subject three federal air programs to state scrutiny. These programs are the New Source Performance Standards (NSPS), the National Emission Standards for Hazardous Air Pollutants (NESHAP) and the Maximum Achievable Control Technology (MACT) standards.
Together, these rules set limits on numerous sources of hazardous air pollution.
The NSPS sets air-pollution limits on new or altered stationary sources, such as cement plants, sulfuric acid plants and oil and gas wells. The NESHAP sets requirements for numerous industries too, and covers hazardous pollutants that are known or suspected to cause cancer, in addition to other health effects. The MACT standards describe the technologies the U.S. Environmental Protection Agency requires industries such as asphalt and chemical manufacturing to use in order to comply with the NESHAP standards.
Under current state law, North Carolina automatically adopts rules from these programs whenever the EPA issues them. But SB 303 would eliminate this process and force the state to reconsider every rule it has already automatically adopted.
The bill would also require, by January 2016, that the state’s Environmental Management Commission stop enforcing all rules automatically adopted from these three federal programs. The EMC would then have to reconsider all the rules and readopt them by a three-fifths supermajority. Next, the rules would head to the General Assembly for final approval.
The bill would require the same process for any new rule EPA issues under these programs.
A ‘benign’ bill
Tom Reeder, assistant secretary for the environment at the N.C. Department of Environment and Natural Resources, called the bill “pretty benign,” and said it will have limited effects.
“The EPA occasionally comes out with these new standards for different air pollutants,” he said. “They come out with these standards for things like wood stoves or generators.
“And all this bill says is that we don’t automatically adopt those things in North Carolina, which is a good thing, because we have limited resources,” Reeder said. “We can’t use our limited resources to go out and inspect homes in Western North Carolina to see if they’re complying with the wood stove requirements or not.”
Reeder praised the bill, saying that it would allow the state to adopt only those rules it sees as necessary.
Sen. Ralph Hise (R-Spruce Pine), a primary sponsor of the bill, echoed Reeder’s comments during Thursday’s floor debate on the bill.
“We can’t, as a nature of state, change the federal regulations,” he said. “We can stop this system of automatically adopting these types of rules that come into the state and using our resources to enforce them.”
Delegated power at risk
In the Senate’s committee hearing, Reeder noted that the EPA’s rules cover smaller-scale pollution sources such as wood stoves. But a former state environment official said the rules have a significant impact on many industries.
“When EPA adopts new standards under these programs, these are major standards that apply to significant air pollution sources,” said Robin Smith, an environmental lawyer who held Reeder’s post from 1999 to 2012.
And while Reeder argued against automatically adopting EPA rules, other DENR staff, including the deputy director of the Division of Air Quality, have cited this process as evidence that the state should not develop new air rules for gas drilling.
Reeder noted that if the state doesn’t adopt federal rules, the EPA could still enforce its own rules in North Carolina. But that process isn’t simple, according to Smith.
Under the federal Clean Air Act, the EPA can delegate power to state environment departments, offering the ability to implement EPA’s rules. Like most other states, North Carolina has opted for this delegated power, which belongs to DENR.
With this federally designated power, DENR is responsible for reviewing and granting applications for air pollution permits. These are legally sanctioned permits that allow industries to release a limited amount of pollution, data for which are publicly available.
Yet if states don’t administer EPA’s rules, the EPA can strip away their delegated powers.
“Basically, it’s [the federal government’s] to give or take away,” Smith said.
If SB 303 becomes law and the state eschews federal air rules, DENR could find itself stripped of its powers to run the three air programs. Instead, the EPA would directly run these programs in the state, reviewing and granting permit applications for local industries.
And this could be a problem for those local industries.
“It’s my sense [industries] much prefer to deal with state programs, and would not be happy if the state put a delegated program at risk,” Smith said.
Smith said, however, that this is “not something EPA would do lightly or quickly.”
Sen. Chad Barefoot (R-Raleigh), another primary sponsor of the bill, said that DENR supports the bill.
A DENR spokeswoman, Crystal Feldman, said in an email that “there is merit in the bill,” but that section 5 of the bill, which forces the state to readopt current federal standards, needs to be “tweaked.”
“We think the aim is to reevaluate delegation of those standards – accepting some and allowing the EPA to retain others,” she said. “This may save some resources for us. States do not have the authority to exempt anyone from these standards so the language needs to reflect that.”