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Legislature targets environmental rules

North Carolina’s Republican-led legislature imposed a one-year moratorium on local environmental rules, fired a key state commission and might have given Duke Energy a break on cleanup of coal ash contamination.

But environmental advocates and local officials say the legislative session that ended Friday could have done worse damage to their causes.

And Gov. Pat McCrory said last week that he’s considering vetoing a wide-ranging regulatory reform bill still on his desk, although it’s unclear on what grounds.

The bill, among its many facets, sets a new standard for when groundwater contamination – such as by Duke’s coal ash – is deemed to be a state violation.

Under current law, violations are deemed to have occurred when contamination moved outside a 500-foot radius from its source. The legislation extends that boundary to the owner’s property line.

“It makes legal what had been illegal,” said D.J. Gerken, an attorney with the Southern Environmental Law Center.

The law center, which has sued state regulators over the issue, says the change means contamination could flow onto someone else’s property before it has to be cleaned up. Gerken said it could also relieve Duke of cleaning up ash contamination at several of its plants, including its Riverbend power plant near Charlotte.

Duke spokeswoman Erin Culbert said the bill simply turns existing state policies into law and would not change how contamination at Duke’s plants is regulated.

“The ultimate resolution of all these concerns is the closure of the ash basins across the state,” she said. “We have already committed to safely and responsibly closing the ash basins at our retired plants, and many of our larger stations in the state have already transitioned to handling fly ash in a dry form in lined landfills.”

The same bill combines water-quality staff, which polices pollution, with water-quantity members into a new N.C. Division of Water Resources. The combination will result in a reduction of up to 15 percent of the current 514-member workforce, division director Tom Reeder said.

In a July 18 internal video, Reeder told staff members that “we’re in the cross hairs right now. We’re the bull’s-eye” for legislators. In an interview, he attributed the hostility to the intrusive nature of some water-quality rules, such as those requiring buffer zones on private property, and poor “customer service.”

The streamlined new division will be more efficient and helpful to the people it regulates, he said, helping violators get in compliance rather than fining them.

“I don’t want to penalize people monetarily for something that’s really not their fault or (they) couldn’t have foreseen,” Reeder said.

Moratorium on rules

The regulatory reform bill before McCrory also prohibits local governments, for a year, from passing environmental rules that state or federal governments also address.

Charlotte and Mecklenburg County officials had expressed alarm over the restrictions, saying they could block ordinances tailored to local conditions.

The ban exempts new rules that are adopted unanimously, easing the city’s concerns, said Daryl Hammock, Charlotte’s water quality manager.

The City Council unanimously approved a recent environmental milestone, the city’s post-construction stormwater control ordinance.

But Robin Smith, a former assistant N.C. secretary of the environment who writes an environmental law blog, said restricting local rules could backfire. State rules often require that local ordinances be adopted, she said, and local conditions sometimes demand local rules.

“It is difficult to predict how big a problem the moratorium would be given the very different circumstances in cities and counties across the state, but it seems an unnecessary gamble,” she wrote last week.

Boards reshaped

McCrory has already signed a budget bill that replaces all 19 members of the state’s Environmental Management Commission, which oversees air and water rules, and all but four members of the Coastal Resources Commission.

The move gives the governor and the Republican-dominated General Assembly, which chafes at environmental rules that it says kill jobs, a chance to reshape the powerful boards in one swoop.

“This legislature does not want any possibility that anyone, anywhere, has any opportunity to place any environmental rules into place that have not been blessed by the legislature,” said Molly Diggins, state director of the Sierra Club.

McCrory named Benne Hutson, a longtime environmental law attorney from Charlotte, as the new chairman of the environment commission. Hutson said new expertise will fill the void of experienced members losing their seats.

“I think it’s always helpful to look at ways you can have regulations that are straightforward, easy to understand and that achieve the goals that are set forth in the environmental statutes,” Hutson said of the legislative session.

Conservationists were relieved that the Clean Water Management Trust Fund, once a major source of preservation money, survived.

Legislators killed the Natural Heritage Trust Fund, which protects ecologically important places, and ended the dedicated sources of revenue for conservation programs.

The legislature ignored climate change, a concern to many outdoors enthusiasts, said Chief Executive Tim Gestwicki of the N.C. Wildlife Federation. It failed to protect three saltwater fish species that sport fishermen like to catch from commercial harvests.

But it resisted efforts to reduce buffer zones between new landfills and state parks and gamelands.

“We lose money and some protections,” Gestwicki said, “but in the grand scheme of things it could have been worse.”

Legislators refused to roll back the Southeast’s only renewable-energy standard, which has created markets and jobs in solar energy.

And they didn’t lift a moratorium on fracking for natural gas or authorize more of the controversial coastal-erosion structures called terminal groins.

“It certainly could have been worse,” Diggins said, “but many of these bills are alive for the (2014) session and you’ve had assertions by the governor and legislators that they’re not going away.”

Henderson: 704-358-5051;Twitter: @bhender
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