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Groups Ask Court to Dismiss State Suit

A state lawsuit challenging stricter federal limits on a type of harmful air pollutant was filed three years too late, according to lawyers for three N.C. environmental groups.

The N.C. Coastal Federation, the Clean Air Carolina and the Western North Carolina Alliance filed a motion on Thursday asking the federal appeals court in Washington to dismiss the state Department of Environmental and Natural Resources’ lawsuit against the U.S. Environmental Protection Agency. The groups are represented by the Southern Environmental Law Center.

“The grounds for the motion are that, in the Clean Air Act, Congress specified a time limit for challenging final EPA regulations and that time limit is 60 days,” said John Suttles, a law center attorney. “The reason for that is Congress recognized at some point people will need to and will rely on the finality of EPA actions. North Carolina didn’t bring the lawsuit in time.”

The state filed the lawsuit in December challenging how the EPA plans to regulate particulate matter, or PM, in air emissions.

John Suttles

June Blotnick

Tracy Skrabal

These fine particles, which are a byproduct of many combustion processes, have been linked to a wide variety of health problems, including increased respiratory symptoms such as irritation of the airways, coughing or difficulty breathing, decreased lung function and aggravated asthma.

In 2010, nearly 370,000 children under the age of 18 in the state had been diagnosed with asthma at some point in their lives, according to the state Department of Health and Human Services. Of those children, about 225,000 still had asthma.

Children are more susceptible to environmental threats because their respiratory systems are still developing.

The elderly are also at higher risk from exposure to fine particles. Studies estimate that each year tens of thousands of elderly people die prematurely from exposure to ambient levels of fine particles, according to the EPA. Exposure to fine particles is also associated with thousands of hospital admissions, many of which are elderly suffering from lung or heart disease.

In 2010, the EPA established a “PM2.5 Increment Rule” limiting the allowable increases of fine particle pollution from new and expanded sources. The prior baseline was set in 1975.

Some states have already implemented the regulation, but North Carolina environmental regulators argue the rule ignores the state’s efforts in reducing air pollution since passing the 2002 Clean Smokestacks Act and hurt its ability to attract industry.

N.C. environmental groups say that argument is in stark contradiction with DENR’s role to enforce environmental rules designed to protect human health.

“This is just another example of the state serving special interest over the interest of the public and for the sate of North Carolina to actually be seeking to weaken federal regulations that would protect human health is absurd,” said Tracy Skrabal, a coastal scientist and director of the N.C. Coastal Federation’s Wrightsville Beach office. “These agencies should be the ones fighting for our citizen’s health.”

The three groups filed a Jan. 27 petition to intervene in the case in support of the EPA.

The federation has supported local efforts to stop construction of a proposed cement plant along the Northeast Cape Fear River in Castle Hayne, a small community outside Wilmington.

Titan America plans to build a plant that would emit more than 180 tons of PM2.5.

Titan last year requested through a revised air quality permit application to increase its potential release of particulate matter. The company maintains that the change is not expected to effect the proposed plant’s actual emissions and that it will operate within federal standards.

“Breathing clean, healthy air is a basic right that DENR is charged with protecting,” said June Blotnick, Clean Air Carolina executive director. “Instead, they are wasting taxpayer money on a lawsuit that aims to allow more pollution in our communities. The state’s approach would be a giant step backwards and would wipe out substantial progress and pollution reductions that have occurred in the past several decades.”

DENR last month asked the court to bar the groups’ request. The court has not reached a decision.

The SELC’s petition earlier this week to dismiss the lawsuit was filed in conjunction with a similar motion by the EPA the same day.

Agency lawyers also argue that the state filed its petition well past the 60-day deadline.

The state attorney general’s office will not comment on pending lawsuits. According to court documents, the state says it filed within time constraints based on the fact that the EPA was court-ordered to make changes to the particulate matter rule in late 2013.

The state filed an administrative petition with the EPA on Dec. 23 asking the agency to reconsider or amend the 2010 rule. The EPA has not had the opportunity to respond to that petition and therefore the lawsuit is premature, according to court documents.

The state has until March 31 to file a response. The SELC will have until April 10 to file reply to the state’s response if it files one.

If the case is dismissed then the environmental groups’ request to join in the lawsuit would effectively be dropped.

About the Author

Trista Talton

Trista Talton is a native North Carolinian who, shortly after graduating from Appalachian State University in 1996, took her first newspaper job as a reporter for the Hickory Daily Record. She has since migrated to the coast, covering everything from education and local governments to law enforcement, the environment and the military, including an embed with Marines in Kuwait for the start of the Iraq war in 2003. She has been a Coastal Review Online contributing writer since 2011 focusing on coastal-related issues from Onslow to Brunswick counties. She lives with her husband and two sons in Jacksonville.