A measure approved hours before North Carolina legislators went home early Wednesday shields environmental violators from fines if they report themselves to the state.
The measure, part of a regulatory reform bill, does two things.
It lets facilities avoid fines if they report and correct violations found during internal reviews, called audits, of their compliance with environmental rules. The bill also lets facilities keep the results of those audits private in most cases.
The bill is intended to improve compliance and has the support of the Department of Environmental Quality. But environmental advocates say it will weaken the ability to police polluters.
“We think it’s probably one of the most significant harms in that Polluter Protection Act,” as critics dubbed the regulatory reform bill, said Mary Maclean Asbill, an attorney with the Southern Environmental Law Center. “We think the practical effect is going to be pretty large, especially combined with some of the other rollbacks in the bill and the customer-friendly attitude of DEQ.”
Confidential audits will limit the public records that citizen groups rely on when they file lawsuits over unaddressed environmental problems, Asbill predicted.
A growing number of states make similar allowances for self-reporting.
“We support the provision and believe it will help clean up the environment,” said DEQ spokeswoman Crystal Feldman. “The plan requires federal approval and oversight. According to the Environmental Protection Agency, 20 other states have already worked with the EPA to put a similar privilege and immunity policy in place.”
DEQ itself adopted a policy in 1995 to encourage self-reported violations in return for not seeking fines. Unlike the new measure, the department’s policy doesn’t limit the use of self-audits in enforcement cases or promise immunity from fines.
Immunity from fines, according to this week’s measure, won’t extend to criminal investigations or to violations that are intentional, pose serious public health or environmental risks, or result in “substantial economic benefit” to a facility’s owner or operator.
For violators, the measure removes the possibility that a minor infraction could result in a large fine, said Victor Flatt, a distinguished professor in environmental law at UNC-Chapel Hill.
States that adopt such measures have to submit them to the EPA for review. The federal agency decides whether the measures erode states’ ability to enforce federal clean air and water laws.
North Carolina’s provision is similar to one in Texas that survived a legal challenge, Flatt said.
“It threads the needle for what should be adequate to avoid causing (the state) to lose authority to implement the Clean Water Act and Clean Air Act,” he said. “The eye of the needle could get so big that a camel could pass through, and that’s the practical concern.”
Fifteen environmental groups called on Gov. Pat McCrory to veto the regulatory reform bill that contained the provision.
The bill also removes protection for wetlands that are isolated from other water bodies. It orders the removal of air pollution monitors that aren’t required by federal law and prohibits mitigation measures when streams that hold water for only part of the year are damaged.