Blounts Creek cited in EPA warning to state

Published 6:08 pm Wednesday, November 11, 2015

The EPA has taken notice of the court battle over the fate of Blounts Creek and has issued a warning to the state: abide by federal requirements or face federal intervention in state permitting.

In a letter dated Oct. 30, EPA Regional Administrator Heather McTeer Toney reminded North Carolina Department of Environmental Quality Secretary Donald van der Vaart that both the Clean Water Act and the Clean Air Act have minimum requirements that allow citizens to challenge CWA and CAA permits through the court system.

Two North Carolina cases drew the notice of the EPA due to the issue of standing — whether those challenging state-issued permits have any legal standing to do so.

In January, Administrative Law Judge Phil Berger Jr. ruled that Sound Rivers, a local environmental advocacy agency, and North Carolina Coastal Federation (NCCF) had no legal standing to challenge a NPDES (National Pollutant Discharge Elimination System) permit issued by the Division of Water Resources. The permit allows a limestone mining company to discharge up to 12 million gallons of fresh water per day into the headwaters of the brackish Pamlico River tributary Blounts Creek, potentially changing the pH of the water and harming species currently existing in the creek.

In the other case, Wilmington citizens, with NCCF, challenged air permits issued to the Carolina Cement Company allowing the Titan Cement facility to emit more than 5,000 tons of air pollution a year. The judge ruled against NCCF.

In the Titan case, the Division of Air Quality made the argument that residents living near the proposed facility had no legal standing to challenge the agency’s permitting decision; the Blounts Creek case, counsel for Martin Marietta Materials working with the Division of Water Resources argued Sound Rivers also had no standing.

As those state agencies implement CWA and CAA permitting on behalf of the EPA, the argument and decision made in the Titan case and Berger’s ruling in the Blounts Creek case go directly against EPA policy that citizens must be able to challenge the permits.

Those decisions “cast serious doubt” about whether the agencies can abide by the EPA requirement, according to Toney. While both cases are still moving through the court system — Berger’s decision was overturned in Beaufort County Superior Court and sent back to the Office of Administrative Hearings for more review and the Titan decision has been appealed — Toney said the EPA is paying attention.

“We must advise you that, should North Carolina appellate courts affirm decisions that limit citizen permit appeal rights in a manner which does not meet federal requirements, North Carolina’s authorization to implement CWA and CAA permitting programs will be in jeopardy with little prospect for remedying deficiencies without legislative action,” she wrote in the letter.

“Basically, it says that your delegation, the state delegation could be in jeopardy, so state would no longer handle (the permitting). People would have to go straight to EPA,” said Pamlico-Tar riverkeeper Heather Jacobs Deck, with Sound Rivers. “To me, that’s a pretty strongly worded letter.”

“Citizens have a right to challenge pollution permits when the state fails to protect our clean air and clean water. The Environmental Protection Agency has now clearly warned the Department of Environmental Quality that, if it wants to continue to administer air and water quality permitting programs, citizens must be allowed access to judicial review of permits issued by the state,” said Derb Carter, director of the North Carolina offices at the Southern Environmental Law Center.

Earlier this year, the North Carolina General Assembly considered legislation that called for penalizing state permit challengers if a judge ruled in favor of the state. The penalty called for was restitution of state attorneys’ fees, which environmental advocates said would have had a further chilling effect on court challenges. While H.B. 765 passed and recently was signed into law, the measure was removed before the final vote.