An official with the Environmental Protection Agency has put North Carolina’s environmental secretary on notice regarding two recent pollution permit cases facing public challenges: Decisions in the cases may affect the state’s authority to issue water and air quality permits in the future.
Heather Toney, an EPA regional administrator, notified N.C. Department of Environmental Quality Secretary Donald van der Vaart in a letter dated Oct. 30 that the decisions on public challenges to state permits for a proposed cement plant near Wilmington and a planned mining operation near Washington “cast serious doubt” on whether the state’s federally authorized permitting programs can satisfy minimum federal requirements.
EPA can withdraw a state’s permitting authority if the state’s program isn’t up to federal standards.
At issue is the public’s right to access judicial review, or holding the government to its own laws, and whether citizens have the right to challenge state-issued water and air pollution permits.
The letter, obtained Wednesday by Coastal Review Online, notes that the federal Clean Water Act and the Clean Air Act set minimum requirements for providing the public judicial access to appeal permits. “Such access is a critical component of adequate state CWA and CAA permitting programs, and must be provided by states seeking authorization from EPA to implement these programs pursuant to federal environmental laws,” Toney states in the letter.
The Two Cases
A group of environmental organizations, including the N.C. Coastal Federation, has challenged the N.C. Division of Air Quality’s air permit for Carolinas Cement Co. for a proposed cement plant near Wilmington. The superior court and administrative court — based on the state’s arguments — held that residents living near the proposed facility don’t have a right to challenge the agency’s permitting decision. The plant would emit more than 5,000 tons of air pollution each year. The case is pending before the N.C. Court of Appeals.
In the other case, environmental groups Sound Rivers, a merger of the Neuse and Pamlico-Tar River foundations, and the federation challenged the N.C. Division of Water Resources’s water quality permit for Martin Marietta Materials that would allow the mining company to dump 12 million gallons of mine wastewater per day into Blounts Creek, a popular fishing spot east of Washington. An administrative law judge, Phil Berger Jr., held that the public, including those who live near, fish on and own businesses dependent on the creek, didn’t have the right to challenge the permit. The decision was reversed by the Beaufort County Superior Court and has been remanded to the Office of Administrative Hearings.
“Should North Carolina appellate courts affirm decisions that limit citizen permit appeal rights in a manner which does not meet federal requirements, North Carolina’s authorization to implement CWA and CAA permitting programs will be in jeopardy, with little prospect for remedying deficiencies without legislative action,” Toney said in the letter to van der Vaart.
Toney, whom President Barack Obama appointed to the position in 2014, said the decisions in both permit appeals interpret state law “in ways that may unduly restrict the ability of citizens to seek judicial appeal” of state-issued water and air pollution permits.
Toney acknowledges the pending nature of the two cases. “However, in the spirit of no-surprises between our agencies,” she advises the secretary of the steps to be taken if the rulings limit citizens’ rights to appeal. “Should such a situation occur, the EPA will need to engage quickly with you and the North Carolina Attorney General’s Office to discuss the impact on your CWA and CAA authorizations as well as the steps the EPA will take in light of these impacts.”
Environmental advocates had been working for months with EPA officials to take action on the Titan permit appeal.
In both cases, at least initially with Blount’s Creek and continuing with Titan, the public has been denied rights, said Derb Carter, director of the N.C. offices of the Southern Environmental Law Center. Carter said the state and its permitting programs are not meeting their obligations under federal law.
“We’ve been arguing this for over two years now and we’re pleased EPA has now weighed in and clearly warned DEQ and the state that these programs are in jeopardy if the exclusion remains in place,” Carter said.