Just a ‘Misunderstanding,’ State Says

RALEIGH – Faced with the threat of losing its federal permitting authority, the N.C. Department of Environmental Quality said this week that it is working with federal officials to clarify their “misunderstanding” over the public’s right to challenge state-issued pollution permits.

Environmental advocates challenging two coastal permits on the public’s behalf say the misunderstanding lies with DEQ and how its lawyers are arguing the ongoing appeals.

The department was responding to a recent letter from an Environmental Protection Agency regional director warning the agency that if decisions in the cases unduly restrict the public’s ability to challenge state permits, then EPA can decide that the state is not meeting the minimum requirements of federal environmental laws. Like most states, North Carolina now issues permits and enforces those laws under an agreement with EPA. The agency could decide to rescind that authority.

Crystal Feldman

Crystal Feldman

Crystal Feldman, a DEQ spokeswoman, declined to answer directly questions Coastal Review Online submitted by email and instead referred to a blog posted Monday afternoon on the department’s website. Her blog seems to blame the state’s legal process.

“DEQ is working with the EPA to clarify that it was the court, not DEQ, that dismissed the challenges to the permits. DEQ is preparing a letter to EPA to rectify the misunderstanding. If the EPA remains dissatisfied with the state’s legal process, legislative action may be required to clarify North Carolina law. DEQ has been and will continue to be committed to providing citizens judicial review and effectively executing environmental permitting programs,” Feldman wrote.

EPA authorizes the state to issue and enforce federal pollution permits under the Clean Air and the Clean Water acts. The department, Feldman wrote, it administers the programs “in accordance with federal law, which includes ample opportunity for public comment and permit appeal.”

She charged that the EPA had been “persuaded” to take action against the state agency by the Southern Environmental Law Center, a nonprofit group of lawyers that represented environmental groups in the two permit challenges questioned by EPA. Feldman described the law center as “frustrated” that the two cases had been “thrown out of court.”

The cases, which are still pending in the state’s legal system, involve challenges to state permits for a proposed cement plant near Wilmington and a planned mining operation near Washington, N.C.

Heather Toney, an EPA regional administrator, said in a letter dated Oct. 30 to DEQ Secretary Donald van der Vaart that initial decisions in the cases, which were based on DEQ’s arguments, “cast serious doubt” on whether the state’s federally authorized permitting programs can satisfy minimum federal requirements.

Attorneys with the law center turned to EPA officials regarding its appeal, along with the N.C. Coastal Federation, of the N.C. Division of Air Quality’s air permit for Carolinas Cement Co. for the company’s proposed cement plant near Wilmington. The plant would emit more than 5,000 tons of air pollution each year. A law judge sided with DEQ that the plaintiffs couldn’t challenge the permit because they didn’t have legal standing. The case is pending before the N.C. Court of Appeals.

In the other case, environmental groups Sound Rivers and the federation challenged the N.C. Division of Water Resources’ water quality permit for Martin Marietta Materials that would allow the mining company to dump 12 million gallons of mine wastewater a day into Blounts Creek, a popular fishing spot east of Washington.

Derb Carter

Derb Carter

Administrative law judge Phil Berger Jr., the son of N.C. Senate leader Phil Berger, agreed with the state’s contention that the public didn’t have the right to challenge the permit. The decision was later reversed by the Beaufort County Superior Court and has been sent back the N.C. Office of Administrative Hearings.

Feldman’s blog says state law provides the public greater input in the permitting process than federal law and more opportunity to appeal permit decisions.

“Under North Carolina law, citizens have to meet a much lower threshold to appeal a permit in court than the threshold required by the EPA. For example, the EPA requires citizens to have commented during the public comment period or participated in a public hearing to appeal a permit. North Carolina has no such requirement” according to the post, which also includes a chart to explain the additional hurdles the public faces in order to challenge a permit under the EPA process.

Mike Giles, a coastal advocate with the federation, called DEQ’s response “ridiculous.” The state’s lawyers were doing DEQ’s bidding in defending the permits, Giles said. “The blog shows that these folks are just not paying attention and forgets to mention the fact that the state lawyers were front and center with this decision as they were arguing the case,” he said.

Feldman, in her email, did respond regarding the law center’s involvement in the cases. “The SELC’s inconsistency about the value of public input undermines their credibility. They think it’s important today when it comes to permitting, but not long ago they tried to bypass public comment on the cleanup of coal ash,” Feldman said.

Derb Carter, SELC’s state director, said Feldman’s comment on public participation on coal ash “is nothing short of astounding coming from DEQ.”

Carter said the department has opposed proposed agreements in court that will require full public review to clean up polluting sites and just reached “a secret deal” with Duke with no public review that would relieve Duke of responsibility for groundwater contamination at all the utility’s coal ash disposal sites.

Carter said that Feldman appears uninformed regarding the two permit challenges at issue in the EPA letter.

“First, someone needs to let the DEQ spokesperson know that the Superior Court in Beaufort County has ruled against DEQ and the mining company to allow citizens to challenge in court the permit authorizing the discharge of millions of gallons of mine waste into Blount’s Creek,” Carter said, “Second, if DEQ is now saying it supports the rights of citizens to challenge the permit authorizing Titan to emit toxic air pollutants, it has the opportunity to reverse its position on appeal and the citizens we represent would welcome that. Since the new mission of DEQ is customer service, and the polluters are the customers, it is more important than ever that citizens have the right to protect their air and water in court.”

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About the Author

Mark Hibbs

Mark Hibbs is editor of Coastal Review Online. A native of coastal North Carolina, Mark joined Coastal Review Online in 2015, after more than 20 years with the Carteret County News-Times, where he served as a staff writer and photographer, business editor and assistant to the editor. Mark has won numerous awards for his reporting, including numerous N.C. Press Association awards, the American Shore and Beach Preservation Association's Friend of the Coast Media Award and the U.S. Small Business Administration’s 2009 Small Business Journalist of the Year Award for the Southeast Region. Mark is a graduate of the University of North Carolina at Wilmington.