RALEIGH – This year’s legislative session ended Wednesday morning, but not before legislators approved the latest round of environmental deregulation that includes provisions that shield polluters from penalties if they report the violations.
Within hours of the vote, 15 environmental groups petitioned Gov. Pat McCrory to veto the measure.
Final passage of H765, the Regulatory Reform Act of 2015, came not long after the N.C. House reconvened after midnight in what was an on-and-off marathon session to work out remaining differences with the state Senate.
The final vote on the bill, the subject of a long-running negotiation between the two chambers since July, was 73 to 39. The Senate passed the bill on Monday night by a 28-16 margin.
Environmental groups, which mounted an 11th hour push to stop the bill, have dubbed the measure the Polluter Protection Act because it contains a provision on environmental self-audits they say gives corporations an unfair advantage in contamination cases and could keep neighbors of a site in the dark as to what the contaminants are.
In a statement released early yesterday morning after the vote, Molly Diggins, the executive director of the state chapter of Sierra Club, said the provision amounts to an amnesty program. “H765 contains measures that would, under certain circumstances, give amnesty to those who contaminate our land, surface waters and groundwater, while at the same time, allowing for pollution to be kept confidential,” she said. “H765 provides a clear path for polluters to avoid accountability.”
The bill, she said, represents a long line of late session environmental protection rollbacks. “It has become the annual practice of this legislature to eliminate or reduce environmental programs and protections, without evaluating the cumulative risks and impacts to North Carolina’s environment or public health,” Diggins said. “H765 may be the worst example to date, both substantively and with respect to process.”
During debate on the bill on the House floor, the bill’s proponents took strong objection to that characterization of the bill. Rep. Pat McElraft, R-Carteret, who led the floor debate for the bill, said the criticism was over the top. The bill was significantly improved during conference, she said, calling it “clean, green and not extreme.”
Rep. Chris Millis, R-Pender, who was not a member of the House conferees but had extensive input into the final version of the bill, also said criticism of the self-audit provision was off-base. The bill is much more narrowly tailored than being depicted, he said, and places time and size limits on the kinds of violations that would be exempt from civil penalties under the law.
“This does not allow any company or entity or individual to violate our environmental laws,” he said during debate. The provision, he said, is set up so that should a company or individual have an incident, they are encouraged to self-report the violation rather than “sweep it under the rug.”
“What it actually does is lead to cleaner outcomes for our environment by having individuals understand what the law is and how they can comply,” Millis said.”
In an interview Monday with Coastal Review Online McElraft said the provision was different than past proposal for self-audits. She said she was confident that there were enough safeguards in the bill and that the N.C. Department of Environmental Quality –formerly the Department of Environment and Natural Resources — would still be doing its job testing and inspections during incidents.
“I think it will be a good thing. A lot of these companies are probably afraid when they first find out about something for fear of a fine,” she said, adding that the department supported the provision.
The provision would spare corporate polluters from civil penalties as long as they self-report the violations. A version of the bill has been included in past regulatory omnibus bills, but the language never made it into law.
It has its origins in “model legislation” proposed by the American Legislative Exchange Council, or ALEC, a policy and think-tank organization that touts free markets and limited government. ALEC’s “Environmental Audit Privilege and Qualified Disclosure Act” is, according to the nonprofit group, “designed to give industry greater incentive to comply with environmental laws” by keeping the polluting company’s internal investigations of violations confidential and inaccessible to the public or courts.
The provision in H765 was modified in conference to allow criminal investigators to access the privileged information, but it still maintains secrecy should any civil cases be brought against a firm by neighbors or communities seeking redress for the same violations.
McElraft said the provision acknowledges the reality that the DEQ is stretched thin and acting on violations is time critical. Since DEQ can’t be everywhere, she said, the self-reporting audits will play a role in getting response to a spill faster she said. “They said this would be good for them because they would appreciate knowing quicker if there is an issue with something,” she said. “That way they can go in there and help them to save the environment without worrying about somebody worrying about their pocketbook.”
Before taking effect the self-audit provision would have to be approved by the federal Environmental Protections Agency.
Opponents of H765 praised the work of House negotiators for eliminating some controversial provisions pushed by the Senate and requiring studies on other ideas before they can go forward.
Rep. Pricey Harrison said despite the changes, the bill still had too many risks.
“This is a very significant environmental bill,” she said. “And it’s probably doing the most damage to the environment of anything we’ve done this session.”
Harrison said too much of the bill was drafted and negotiated behind closed doors and included too many significant changes in air and water quality protections.
“I am reluctant to be critical of the House because I think the House did its best,” she said. “But I am bothered by these continued rollbacks in environmental protections.”
So are the environmental groups that asked McCrory to veto the bill. “Nothing in H765 is essential. Much is harmful,” they wrote. “Please use the veto authority vested in you by North Carolina’s Constitution to reject H765’s vision for a dirtier, less healthy North Carolina.
The bill passed both chambers with veto-proof majorities.
H765 began in April as a single-page bill about transporting gravel. It grew by nearly 50 pages in July when the Senate converted it to the Regulatory Reform Act of 2015 and dozens of environmental provisions including several that had been previously rejected by the House.
Some of those provisions were dropped or modified in conference negotiations. Here are the major environmental provisions.
Risk-based remediation: The conference report also includes a provision that expands a state program that allows polluters to avoid cleaning up soil and groundwater contamination when restrictions on use of the affected land are imposed. The expanded program would cover most sources of contamination, past, present and future. Opponents say it will reduce protections for neighboring property owners and the environment. Coal ash pits and hog lagoons aren’t included under the provision.
Contested cases for air permits: Language in the bill changes the way third parties, those other than air permit-holders or air permit applicants, may challenge state permit decisions. It allows construction to continue when a permit is contested, unless a judge orders otherwise.
Isolated wetlands and stream protection: The bill does not include proposed reductions in protections of isolated wetlands, but does instruct the state Environmental Management Commission to come up with rules for mitigation and protections based on three wetland size thresholds. The EMC would establish the lines to divide the state into three regions with rules for protecting wetlands exceeding one-acre in the eastern region, one-half acre in the Piedmont and one-third acre in the mountains.
Another section of the bill prohibits requirements of mitigation for damage to intermittent streams, or bodies of water that flow only during certain times of year. Opponents estimate that nearly half of North Carolina’s stream miles are intermittent streams and most are important habitats that provide pollution control for waters downstream.
Coastal stormwater rules: Environmental groups succeeded in heading off a full rewrite of coastal stormwater rules that was included in a previous version H765.
The previous language would have reverted coastal development requirements to those in place a decade ago, rules determined at the time as failing to protect shellfishing waters. As originally written, H765 would have dropped requirements adopted in 2008 limiting construction density to a built-upon area of no more than 12 percent to once again allow impervious coverage of up to 24 percent.
The change is not in the final version of the bill. Instead, the Department of Environmental Quality, is directed to study the effect stormwater has on water quality in coastal counties and determine the maximum allowable built-upon area as related to the length of grassy swales for stormwater treatment. The results of that study are to be reported by April 1, 2016, to the Environmental Review Commission.
Mark Hibbs, Coastal Review Online assistant editor, contributed to this report.