LEGISLATIVE POSITIONS ADOPTED BY THE
NCCBI ENVIRONMENTAL CONCERNS COMMITTEE
POSITION: NCCBI supports ongoing review and reform of
the administrative process to assure fair and open rule-making with effective
legislative oversight, as well as fair and efficient hearings for contested
cases, including support for:
·
rule-making procedures that ensure
realistic input by those affected by the rules, adequate review of rules by the
Rules Review Commission, continued oversight of rules by the General Assembly,
and opportunity for judicial challenge to unsatisfactory rules;
·
study by the General Assembly of ways
to streamlining the rule-making process for certain types of rules or
rule-making actions, where full review is not called for, such as adoption of
non-controversial rules or amendments (provided that all protections in the
previous paragraph are maintained); and
·
expeditious and fair contested case
hearing procedures that provide for full review of state decisions by
independent third parties, in order to ensure that NCCBI and its members have a
realistic opportunity to contest actions believed to be in error or unsupported
by substantial evidence.
BACKGROUND
AND EXPLANATION: Actions by North Carolina agencies can
have very significant impacts and implications for NCCBI’s members. The ability of even the largest entities to
operate competitively and efficiently can be impaired by State rules or
decisions. Interactions between State agencies and NCCBI members are controlled
principally by the North Carolina Administrative Procedure Act, as codified in
Chapter 150B of the General Statutes (APA), as well as the agency’s organic
laws and rules. The two principal areas
of concern to NCCBI members under the APA are rule-making and contested
cases.
Beginning in 1995, the General Assembly
enacted several reforms of the rule-making process under the APA, including
enhanced review of rules by the Rules Review Commission (RRC) and
accountability through filing of rules with the legislature, with opportunity
for legislation to delay or overturn rules which the General Assembly finds not
to implement its intent. Agency
actions, such as those often labeled as “policy,” “program,” “position,”
“memorandum,” “interpretation,” or other similar terms typically fall within
the APA’s definitions of rules and must be adopted as such, or they cannot and
should not be enforced by the agencies.
NCCBI supported the adoption by the 2000 General Assembly of House Bill 968, which reformed the way that contested case hearings are handled by the Office of Administrative Hearings (OAH) and reviewing courts, including changes in Article 3 of the APA designed to enhance the significance to be given decisions by the OAH Administrative Law Judge (ALJ) by the agency. NCCBI also supported changes in that statute that shortened the time for such hearings, clarified how ALJ’s are to hear the cases, and expanded the instances where the regulated community is entitled to review attorney fees in successful appeals of agency decisions. NCCBI believes that these changes, which become effective in 2001, should improve the perception and the reality of the fairness and efficacy of the hearing process, but encourages the General Assembly to continue to monitor these decisions to ensure that agencies are, in fact, given greater credence to ALJ decisions where the law requires.
POSITION: In general, NCCBI recommends that air
quality programs be implemented at the state level. Generally, we do not support new state programs that go beyond
federal programs absent a clear showing that further measures are needed to
protect North Carolina’s air resources.
·
NC should reinstate the one-hour ozone
standard
·
NC should go through a formal
rulemaking process if there is a need to change current monitoring, permitting,
and enforcement actions on condensable particulates
·
Environmental Review Commission should
evaluate the need for NC air toxics regulations
EXPLANATION:
NCCBI supports the state’s efforts to remain active in the
litigation opposing the NOx SIP call.
The state should continue to develop its own technically sound, cost
effective state implementation plan (SIP) that will reduce ozone in North
Carolina to levels needed to meet the National Ambient Air Quality
Standard. However, until the courts
have resolved the federal eight-hour ozone standard, the state of North
Carolina should follow the lead of EPA and reinstate the one-hour ozone
standard.
NCCBI members recognize the intent of regional haze
requirements and believe lead authority for implementation should be vested in
the state air programs. EPA should be
responsible for modeling protocol and model development/calibration. Working with other states in the sub-region,
DENR should have the flexibility to develop a regional haze program and
improvement targets that are tailored to the needs of NC and bordering
states. States must have the
flexibility to develop and implement regional haze measures in a manner and on
a timetable that is compatible with the PM 2.5 NAAQS.
The memorandum of agreement between NC and the federal land
manager should not be enforced unless the state of North Carolina has adopted
the agreement through the rule-making process outlined in the state’s
administrative procedures act.
NCCBI recognizes the value of New Source Review to the
overall protection of North Carolina’s air resources. NCCBI promotes implementation of the NSR measures in a manner
that ensures the prevention of significant deterioration of air quality while
allowing for economic growth and prosperity of businesses in North
Carolina.
NCCBI supports measures to address, in a fair and equitable
manner, compliance situations that arise from new emission factors, new
emissions’ data, and revised protocols.
Giving sources adequate time to voluntarily make changes based on the
new emission factor or new test data, rather than instigating enforcement
action unilaterally, is appropriate and will generally yield the needed result.
While the North Carolina air toxics program may have served
a reasonable purpose prior to the implementation of new, substantial, federal
requirements under Section 112 of the Clean Air Act enacted in 1990, the
federal program now comprehensively regulates emissions from industrial
processes based both on discharges to the atmosphere and on the basis of risk
to human health and the environment. NCCBI suggests that the Environmental
Review Commission of the General Assembly review whether there is a continued
need for the North Carolina program in light of its current duplicative and
redundant nature, and in light of the substantial costs that the North Carolina
program poses on the regulated community.
The North Carolina Division of Air Quality has recently
begun requiring sources of particulate matter emissions to quantify not only emissions
of “filterable” particulate matter, but also “condensable” particulate
matter. This decisive change in
regulatory requirements has been implemented by the DAQ, without any
rulemaking, as a “policy.”
NCCBI believes that the air quality standards in place in
North Carolina are based on the quantification of “filterable” particulate
matter only, and the requirement to quantify “condensable” emissions is a
change in regulations that requires formal rulemaking.
ALTERNATIVE COMPLIANCE
POSITION: NCCBI supports Alternative Compliance Legislation which
will encourage state regulatory agencies to work cooperatively with industry on
a voluntary basis to create incentives to achieve environmental excellence or
cost effective solutions to environmental issues. Regulatory agencies should move the focus away from the “one size
fits all” command-and-control approach to address site-specific
circumstances. The regulated community
needs a means to implement innovative alternatives to existing regulations that
provides equivalent environmental benefits.
NCCBI supports Alternative Compliance Legislation that proactively
involves citizens/stakeholders participation and encourages environmental
management systems.
Alternative Compliance Legislation is needed to:
§
Set clear direction for public policy
to motivate results-based environmental performance
§
Create authority to apply flexible
regulatory approaches
§
Encourage state agencies to seek
innovative approaches
POSITION:
·
NCCBI supports State funding of
sufficient DENR staff to enable expeditious reviews and approvals of Brownfield
Agreements.
·
NCCBI supports modifying the
Brownfields law to extend to other parties the liability protections now
afforded to prospective developers, including providing some protection to
parties who caused or contributed to contamination at the property.
·
NCCBI supports the implementation of
additional incentives for the reuse of Brownfields properties, including
tax-exempt financing for remediation and renovation costs, simpler compliance
with fire and construction codes, and techniques for further simplifying and
shortening the process for approval as a qualified Brownfield property or
building.
EXPLANATION:
·
NCCBI supports the effective reuse of
properties with actual or perceived environmental contamination, which are
often referred to as “Brownfields.”
Rehabilitation of these unused and underused properties encourages
development of urban and other areas, thereby reducing sprawl; enhances
municipal tax bases; provides additional employment opportunities, especially
to populations who can best benefit from them; and strengthens downtown
communities.
·
NCCBI actively encouraged and supported
the introduction and adoption of legislation during the 1997 General Assembly
to provide for Brownfield Agreements and procedures to encourage the
remediation and reuse of Brownfields.
NCCBI also supported the adoption by the 2000 General Assembly of
limited tax incentives for Brownfields properties and buildings. The Brownfield program enables developers to
reuse Brownfields properties without taking on undue liability.
·
In order to be effective, the reviews
and approvals of materials required to submitted to DENR to achieve the
approval of a Brown must be expeditious.
·
The Brownfields law as presently
structured does not allow owners of Brownfields properties who caused or
contributed to contamination to qualify for liability protections and to enter
into Brownfields Agreements with DENR.
This significantly limits the number of Brownfields properties that are
likely to be reused because of the need for an independent, outside developer
to enter into an agreement with DENR.
COMMUNICATIONS:
POSITION:
NCCBI encourages the North Carolina General Assembly to
require environmental agencies provide the public with balanced, scientifically
based information on the state of the environment in North Carolina including
positive information about how and where North Carolina's environment is
improving.
EXPLANATION:
The DENR, the EMC and other related state bodies
consistently disseminate bad news concerning the environment while making
little, if any, efforts to provide the public with information about the many
successes achieved in protecting and enhancing the environment. While DENR
gathers this information and annually prepares a State of the Environment
Report, the state as a whole is rarely provided the positive information about
how and where North Carolina's environment is improving.
NCCBI recognizes that it is vitally important that everyone
in North Carolina, most specifically the regulated community, continue to
protect and enhance environmental quality. NCCBI is aware that the business
community has accomplished much good work in the area of environmental protection
and improvement. However, the business community has failed to effectively
communicate the environmental improvements that have been made. Therefore,
state regulators must and the business community should be encouraged to tell
this "good news."
NCCBI encourages its members and the business community to
practice good environmental stewardship and to go beyond compliance with
environmental regulations where practical. NCCBI further encourages business to
communicate their efforts to protect, enhance and improve the environment.
ENVIRONMENTAL JUSTICE
POSITION:
The State of North Carolina should implement only required
elements of the EPA Guidance on Environmental Justice and ensure that
initiatives:
BACKGROUND:
Guidance on Investigating Title VI Administrative Complaints
Challenging Permits should be finalized in 2001. This Final Guidance will
replace Interim Guidance currently in effect and will ultimately revise how
Environmental Justice complaints are reviewed and resolved. In addition, the
Final Guidance will be used to advise state environmental agencies on how to avoid
Environmental Justice complaints. As a result, DENR has and will continue to
implement Environmental Justice Guidance recommendations into its already slow
and often complicating permitting processes. NCCBI members are important
stakeholders and can be affected if the permitting process is slowed for any
reason.
POLLUTION PREVENTION, WASTE REDUCTION,
AND ENERGY MANAGEMENT
POSITION:
NCCBI supports voluntary efforts by government, business,
and industry to reduce energy consumption, reduce the volume, concentration,
and toxicity of wastes generated, and to increase reuse of materials that
otherwise would become waste, as important components of resource conservation
and sustainable development.
·
NCCBI supports improvement of the
Universal Waste Rule to allow more flexible solutions for management of
electronic equipment
·
NCCBI supports linking incentives for
business and industry to waste reduction targets established by NCDENR
BACKGROUND:
Improved energy management and waste reduction benefit
society through resource conservation and reduced emissions and discharges,
while also benefiting businesses through regulatory compliance, reduced costs
of production and waste management, and reduced exposure to liability.
Because DENR's Division of Waste Management and Division of
Pollution Prevention and Environmental Assistance are coordinating to focus
DENR’s waste reduction outreach, DENR’s roles as both enforcer and technical
resource make some businesses reluctant to accept offers of assistance. NCCBI is
in a good position to facilitate this process, using our communication network
to provide information to our members and the experience of our members to
provide feedback to DENR about how its programs may be benefiting or creating
barriers to waste reduction by the private sector.
NCCBI encourages DENR’s programs that disseminate
information, provide technical assistance, and review State regulations and
regulatory practices for disincentives to waste reduction. NCCBI encourages
cooperation among DENR offices that regulate waste with those that promote
waste reduction to strive for measurable improvements in waste reduction, in
addition to enforcing regulations.
NCCBI will work with DENR to identify opportunities for
reducing waste, improving energy management, and producing useable information
and case studies of repeatable successes.
NCCBI will work with DENR to develop pollution prevention concepts that
have a market-based approach, along with providing assistance in developing
special programs that target problematic waste materials. Finally, NCCBI encourages DENR to develop
incentives that foster successful recycling entities.
POSITION:
NCCBI supports the development of legislation to modify the
current appointment process for seats on the Environmental Management
Commission (EMC) to assure more representative geographical distribution of
seats on the board.
NCCBI supports dividing the EMC into two boards. One board would address air issues and
another separate board would address water issues.
EXPLANATION:
The current appointment process for members of the
Environmental Management Commission includes no requirement to assure that
there are representatives on the Commission from all areas of the state. As a result, the EMC currently has five
members from Chapel Hill/Carrboro and no members from the Charlotte-Mecklenburg
area. Only two members of the 17-member
board are from west of Winston-Salem.
Eight of the seventeen members are from the Raleigh-Durham-Chapel Hill
metropolitan area.
There are several possible formulas to achieve geographic
representation. One option would be to
have a member from each congressional district appointed by the Governor and
one member at large from any location appointed by the Speaker of the House and
the President ProTem of the Senate. Another option would be to restrict the
appointees by allowing no more than two members from any county. Regardless of the final form of the
restrictions, the result should be a commission that better represents the
citizens of the state.
Over the past five years, the Environmental Management
Commission has seen a significant increase in the number of issues it has been
asked to address. The Division of
Environmental Management was split into two Divisions-the Division of Air
Quality and the Division of Water Quality.
The number of staff positions in air quality has more than tripled. The air toxics program has evolved into a
significant state program well beyond the federal initiative.
NCCBI supports splitting the EMC into two boards. One board would address air issues and
another separate board would address water issues. By dividing the board into two separate bodies, members who serve
on the boards would be able to focus on a smaller area of interest, spend less
time in meetings, hearings, committees, etc. The volume and diversity of issues
the EMC is forced to consider overwhelm the current board of voluntary
members. It is increasingly difficult
to find qualified individuals to serve given the time commitment and complexity
of issues the EMC is asked to address.
For these reasons, NCCBI supports splitting the EMC into two boards.
POSITION: NCCBI supports incorporating flexible and
cost efficient risk evaluation practices in environmental decision-making where
appropriate.
·
NCCBI believes that risk management
reform is needed in guidance, policies, and rules governing site remediation
decisions, particularly in groundwater management.
·
NCCBI believes that the environmental
rule-making process in the State of North Carolina should incorporate a more
thorough cost-benefit analysis, of which risk evaluation is an essential
component.
·
NCCBI believes that existing
environmental rules should undergo a cost-benefit analysis by the North
Carolina General assembly during the next five years.
BACKGROUND: NCCBI believes
appropriate prioritization among competing societal demands can maximize
environmental protection and the welfare of the state. We also strongly support risk-based decision
making for establishing appropriate remedial actions for environmental
cleanups. In both cases, implementation
of a risk-based decision making process will achieve better protection of human
health, safety, and the environment at less cost. For decades, North Carolina has been implementing a host of
diverse regulatory programs designed to reduce risk to human health, safety and
environment. In many instances,
specific programs have been reasonably implemented and have been effective in
achieving the goals of a cleaner environment and healthier standard of
living. Yet, even the with the best of
intentions, North Carolina agencies in many instances are not allocating the
limited resources of the state in a cost-effective manner, but rather expending
these resources on speculative risks that may not bring commensurate
benefits. Today, businesses in North
Carolina are now facing a competitive global economy that has rapidly exposed
the fact that many environmental regulatory efforts are driving up the costs of
doing business without delivering any significant accompanying benefit. Businesses are forced to raise prices,
reduce production, eliminate jobs, cut research and development, or even leave
the state. As a result, North Carolina will suffer needlessly. NCCBI believes that a process for
incorporating flexible and cost efficient risk evaluation practices for both
rule-making and environmental cleanups should be established.
SUSTAINABLE
DEVELOPMENT AND GROWTH PLANNING
POSITION:
NCCBI strongly believes that sustainability principles and
criteria must be balanced, and scientifically based so as to maintain our
strong and growing economy which is so essential for the future well being of
all North Carolina citizens, while at the same time enhancing and protecting
the environment and preserving natural resources.
EXPLANATION:
Sustainability has been defined as a socioeconomic state
where current needs can be met without reducing the capacity of the environment
or natural resources to provide for future generations. While NCCBI agrees in
principal with this definition, the means for achieving sustainability are
often hotly debated among the various stakeholders. All too often, special
interest groups attempt to focus efforts on legislation, regulations and
policies that would sacrifice continued economic development and a strong
economy for growth control and land use restrictions.
North Carolina's economy has grown rapidly over the last
several decades and many of our citizens have benefited from this growth. This
growth has placed serious demands on our transportation systems, educational
institutions, infrastructure, environment and much more. This growth is
expected to continue. Consider that our population grew from 6.6 million in
1990 to 7.6 million in 1998 and is expected to continue this growth in the
future. 60% of our population growth
has come from outside North Carolina.
Metropolitan centered growth will continue. Population growth is tied to job growth with knowledge and high
tech sectors achieving the fastest growth. Cities are expanding, suburbs at an
even faster rate. Rural areas are lagging in growth and economic
development. Transportation spending
favors highways. A large amount of land
is being developed. Air quality is
getting worse in some areas. Rapid, sprawling growth could threaten the quality
of life in some areas.
As can be seen from the above, environmental protection and
preservation of natural resources are but two considerations in the broader
question of sustainable development and growth planning. NCCBI supports a
process that considers all aspects of sustainability and develops criteria that
support continued growth while protecting the environment and preserving
natural resources.
POSITION:
·
NCCBI supports efforts to ensure the
continued availability of adequate supplies of water in all areas of North
Carolina, including adequate supplies of water that is potable, either without
treatment or with economically and technically feasible treatment.
·
NCCBI supports the adoption of rules
and the designation of capacity use areas (as defined below) where it is
demonstrated that such actions are necessary to maintain the continued
availability of adequate supplies of water, and provided that such rules and
designations are based on scientific evidence for their justification, involve
the minimum restrictions that are demonstrated to be needed, encourage the
development of alternate and additional water supplies, and rely to the maximum
extent possible on voluntary efforts by users and local governments.
·
NCCBI opposes the adoption of rules or
the designation of capacity use areas that entail arbitrary reductions in
required usage.
EXPLANATION:
·
Access to adequate amounts of water is
vital to maintaining the quality of life in North Carolina and its continued
attractiveness for business and development.
Historically, North Carolina has had adequate access to water that is
either potable or is capable of being made potable through treatment. The State relies significantly on
groundwater as a source of water, particular for drinking and consumption.
·
Because of localized concerns about the
continued availability of adequate water in certain parts North Carolina, the
General Assembly first enacted legislation in 1967 that addressed the issue of
withdrawal of significant amounts of groundwater from certain areas that have
been designated as areas (so-called “capacity use areas”). Based on similar concerns, the General
Assembly later passed in 1993 additional statutes that regulated the transfer
of surface water between one surface water basin to another basin (an
“inter-basin transfer”), where such withdrawal might adversely affect the
quality or quantity of such water.
Only one area within the State is currently declared to be a capacity use area,
but recent data provide some support that other areas could justifiably be
considered for classification as capacity use areas, including an area in
eastern North Carolina that is now being proposed for reclassification;
however, the proposed rules to implement this reclassification has raised
concerns among potentially effected parties.
NCCBI believes that the restrictions under capacity use rules should be
minimized and, to the maximum extent practicable, rely on voluntary efforts,
rather than mandatory reductions and other restrictions.
WATER
QUALITY
POSITION: NCCBI supports reform of the permit process
to promote efficiency, and review of water quality standards and limitations to
ensure that the standards are based on sound science.
EXPLANATION:
The backlog for permits continues to grow, despite periodic
attempts to wipe out the backlog.
Renewals which present no change in loads or flows should be fast-tracked,
and requests for public hearing should be closely scrutinized for genuine
issues. DWQ staff should place more
reliance in certification by professional engineers regarding the design and
limitations for discharge facilities.
Having entry level engineers reexamine the work of experienced
professional consultants is time-consuming and inefficient. Adequate sanctions are in place to deter
submittal of fraudulent data and information.
The use of the general permit should be expanded. “Secondary impacts” analyses should be
restricted to certain and directly-related impacts from a facility.
Water quality standards have been proposed and adopted that
are not based on good science, are unjustifiable from a risk standpoint, and
defy or complicate compliance verification due to the costs and limitations of
analytical methodology.
WETLANDS
POSITION: NCCBI supports a wetlands regulatory program
that is based on proper statutory authority, and that makes sense in terms of
wetlands protection and reasonable, sound development.
· DWQ
should repeal the present wetlands rules and work with the regulated community
to propose appropriate supporting legislation for a wetlands program
· DWQ
should commence a meaningful stakeholder process to craft a rational program of
wetlands regulation
EXPLANATION:
NCCBI believes that the current wetlands standards have been
adopted without proper statutory authority. NCCBI is party to a lawsuit
currently pending which challenges the validity of the present wetlands rules
on the basis that those rules lack statutory authority.
Numerous attempts in the past by the DWQ to have the General
Assembly provide authority have been unsuccessful. Failing that, the EMC simply created the authority by rule, a
route which is unconstitutional in North Carolina, ignoring the limitations of
the statute for allowable permit programs, and overriding the objections of the
Rules Review Commission. The rules
create a parallel, but more onerous state permit program for wetlands
projects. As the rule stands, it makes
unlawful in North Carolina any activity in wetlands that is not subject to the
permit requirement of Section 404 of the Clean Water Act.