ENVIRONMENT HIGHLIGHTS FROM THE RECENT LEGISLATIVE SESSION INCLUDE:

DENR Reorganization

HB 74 – Omnibus Regulatory Reform Bill 

Other Environmental Legislation



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PENC Leadership
 
President
William A. Roberts, PE
Duke Energy
bill.roberts@duke-energy.com

President-elect
Neil T. Deans, PE
Kimley-Horn & Associates
neil.deans@kimley-horn.com

Past President
William G. "Gus" Simmons, PE
Cavanaugh & Associates PA
gus.simmons@cavanaughsolutions.com

Secretary
Mark McIntire, PE, BCEE, CRM 
Progress Energy Mark.Mcintire@pgnmail.com


Treasurer
Nathan Epling, PE
Blue Ridge Parkway
nepling@nps.gov

Directors At Large:
Paul Shivers, PE
Highfill Infrastructure 

pshivers@hiepc.com

Susan Habina Woolard, PE
City of Charlotte Department of Transportation
shwoolard@charlottenc.gov

Tom Bach, PE
Water and Sewer Authority of Cabarrus County
tbach@wsacc.org

 
CEO & Executive Vice President:

Betsy Bailey, CAE
Professional Engineers
of North Carolina

(919) 834-1144
bbailey@penc.org

CEO & Executive Vice President:

Betsy Bailey, CAE
Professional Engineers
of North Carolina

(919) 834-1144
bbailey@penc.org

Professional Engineers
of North Carolina

1015 Wade Avenue, Suite A

Raleigh, NC 27605

www.penc.org



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While the news media has been busy covering the daily hirings and firings at the Department of Health and Human Services, they haven’t been able to devote much attention to the massive reorganization going on in NCDENR – until today… 

DENR Reorganization 

While the reorganization was expected under the new administration, some of the changes came about as a result of legislation and budget actions enacted by the General Assembly.  One big change is generating some media coverage – the consolidation of the Division of Water Quality and the Division of Water Resources into the “new” Division of Water Resources. 

The reorganization, intended to cut costs, will mean job losses in one of the agency's largest permitting divisions.  Staffers in water quality and water resources will combine over the next few months to form one division with almost 500 employees. Before the reorganization is complete in early 2014, the department expects to cut about 70 positions in the new Division of Water Resources – half of them already vacant - and is expected to save $4 million annually in labor alone, without any impact to water quality and planning functions. That's likely to please lawmakers, who have increased pressure on the department to cut its budget by $2 million. It's also causing concern among some environmental advocates and departed DENR staffers, who say the shakeup has already led to some controversial decisions.

Before the merger, the Division of Water Quality was largely responsible for issuing permits for building projects and enforcing regulations designed to keep both surface and groundwater clean. With hundreds of employees, the division was one of DENR's largest. Water Resources, a much smaller department, dealt primarily with the management and sustainability of the state's water supply.

Several of the newly reconstituted division's decisions have sparked controversy among environmental advocates. An email from DENR in early September turned down two federal grants totaling about $580,000. One would have funded baseline water quality measurements ahead of new natural gas drilling, or "fracking." Another would pay for monitoring of Piedmont wetlands. In the message, Surface Water Protection Section Chief Matt Matthews pointed to the ongoing reorganization – and the corresponding "evaluation of all existing programs" – as one reason for taking a pass on the money. State representatives of the Sierra Club criticized the move. (Tyler Dukes, WRAL NEWS, 9/24/13).

The N&O in today’s editorial was also critical of DENR’s decision to turn down the two federal grants totaling almost $600k.  Both grants would have paid for work by DENR’s Program Development Unit staff, which provides technical support for surface water protection. The unit is being eliminated as part of an organizational consolidation.

Read more here.

Most Important Sections Highlighted in Red
HB 74 – Omnibus Regulatory Reform Bill
 

Recent PENC webinars and events have highlighted the many changes enacted in the 58 page Regulatory Reform Bill.  While we are still in the process of reviewing certain provisions in the bill and learning from NCDENR how they will be implemented, it is important that you are aware of some of its key provisions.

Part I.  Improve Rule-Making Process

The new law requires periodic review or elimination of over 23,000 existing rules.  Why?  Because there are a lot of rules that are now obsolete, are causing considerable angst by the public, or they just need to be reviewed to see if they still serve a useful purpose.  An initial determination by the agency would categorize their own rules as 1) not necessary 2) necessary and not controversial and 3) necessary but controversial.  The Rules Review Commission would then review the Agency determinations and report to the Joint Legislative Administrative Procedure Oversight Committee for final recommendations.  Some advocacy organizations are concerned that these determinations may allow some necessary rules to be inappropriately categorized as unnecessary since the volume of rules to review may compromise a thorough review.  Other changes in rulemaking require that a fiscal note be prepared for all rules changes and that the fiscal impact on local governments and NCDOT is required to be published.

Part II. State and Local Government Regulations

  • Prohibits delayed enforcement of local ordinances when the use constitutes a violation of a zoning or unified development ordinance.
  • Prohibits requirement for private contractor to abide by restrictions not imposed by all employers in the county i.e., the requirement to pay minimum wage.
  • Allows DOT to cut or remove vegetation around outdoor advertising signs.
  • Originally the bill restricted the ability of local governments to regulate or prohibit repair or reconstruction of any outdoor advertising where a valid permit exists.  However, the Governor’s Executive Order changed this and there is a pending ruling on whether or not the Governor has the authority to do this. 
  • Requires a study of occupational licensing board agencies by the legislative Program Evaluation Division to look at elimination of obsolete boards, consolidations and other efficiencies.
  • Prohibits cities and counties from enacting ordinances that are also regulated by a State or federal statute enforced by an environmental agency unless the local body approves unanimously.  In response to the original proposal that that this apply to ALL city and county ordinances (not just environmental), the bill was modified as noted and the ERC will study instances of local ordinances where the local ordinance is more restrictive.   This entire provision is only effective until October 1, 2014 at which time the ERC will make final recommendations for the legislature to enact.

Part III. Business and Labor Regulations

  • Allows Workers Comp insurance cancellation notification by electronic communication
  • Allows private employer to use employment preference for Veterans
  • Provides for the Agricultural right to work – cannot condition purchase of agricultural products on producer’s status as union or nonunion employer

Part IV. Environmental and Public Health Regulations

  • Establishes requirements for carbon monoxide detectors in food and lodging establishments
  • Amends definition of new animal waste management system (Section 21.b)
  • Provides for implementation of reclaimed water irrigation setback rule until effective date or revised permanent rule (Section 22.c)
  • Requires an ERC Water and Sewer Authority Study to look at reduction or consolidation of sanitary districts; water and sewer authorities, metropolitan water and sewerage districts; county water and sewer. Among other things, this study will determine if the newly legislated Asheville Regional Water Authority model could be applied elsewhere in the state. 

Part V. Amend Environmental Laws

  • Requires a study to determine continued need for vehicle emissions inspections
  • Gives ERC the flexibility to determine whether rules are necessary for controlling effects of complex sources on air quality
  • Requires air quality permit for 8 years and allows dissatisfied third party to contest the determination
  • Amends Coastal Area Management Act minor permit application requirements for publication of notice requirements.
  • Allows violator of sedimentation and pollution and control act to contest penalty assessment
  • Provides for low-flow design alternatives for wastewater systems provided they can be achieved through PE design
  • Requires local health department to act within 30 days on application to construct or repair private well
  • Directs Public Health Commission to adopt rules to provide for notice of known contaminants to applicants
  • Clarifies that Underground Storage Tanks installed after 1/1/1991 and prior to 4/1/2001 are not required to provide secondary containment until 1/1/2020
  • Prohibits public entities from purchasing or acquiring property with known contamination without approval of the Governor or Council of State
  • Repeals the Mountain Resources planning act established to encourage quality growth and development while preserving natural resources
  • Provides an exemption from local government requirements regarding number of acres for property development for brownfields
  • Establishes compliance boundary for groundwater quality standards at the property boundary for various categories of disposal systems
  • Clarifies that extended-duration permits for sanitary landfills and transfer stations are permits for operation as well as construction
  • Limits local government regulation of storage, retention or use of nonhazardous recycled materials through the regulation of the height or setback except within 200 yards of residential development
  • Amends definition of “built upon area” for stormwater programs to mean impervious surface and partially impervious surface to the extent that the partially impervious surface does not allow water to infiltrate through the surface and into the subsoil.  Does not include a wooden slatted deck, the water area of a swimming pool or gravel.

***This was a controversial provision in the legislation that caused the Governor to consider veto.  NCDENR is proposing a recommendation to the EMC to institute an “emergency rule” to deal with the pervious gravel issue.  

  • Exempts agricultural ponds from riparian buffer rules
  • Allows third party to contest decision of EMC regarding water quality permit
  • Repeals the vehicular surface requirements for stormwater runoff contained in Article 4A of the Sedimentation Pollution Control Act
  • Provides that for public water systems with expired authorizations (within the last 10 calendar years) for water treatment plants that have been deactivated may obtain new water treatment plan authorizations that allow the system to withdraw surface water from the same water body.

Part VI. Solid Waste Reform Provisions

  • May deny application for permit if impact of proposed facility has disproportionate adverse impact on minority but only to the extent required by federal law
  • An applicant for proposed landfill must contract with qualified third party approved by department for environmental impact study and applicant shall pay for costs of public notice and hearing
  • Establishes buffer and restrictions for location of future landfills making it a little easier to get a landfill permitted
  • Modifies cleaning and inspection of leachate collection lines to allow remote camera inspections of the lines upon completion and at least once every five years.  Cleaning of lines is still required but there will be no oversight by the Department. 
  • Once the department establishes an alternative method of daily cover of landfills is shall be used at all landfills in the state
  • Requires owner or operator of sanitary landfills to share research and technology for studies conducted by third parties and to study gas to energy or other waste to energy technologies for renewable energy use
  • Amends rule governing collection and transport of solid waste to require leak resistant rather than leak proof material.  However the Governor issued an executive order for this provision as well that changed this to leak proof. 

***Regulatory Review of Engineering Work – Opportunity for Engagement

One of the most important sections of the bill (requested by PENC) requires that NCDENR, NCDOT, DHHS and local governments to study their internal process for review of engineering applications and plans submitted for their approval.  This would include:

  • Standard processes for each environmental permit program with respect to evaluation and approval
  • Mechanisms in place to ensure staff who are not PEs are not engaged in the unauthorized practice of engineering
  • Standard scope of review within each permit program to ensure staff are not exceeding statutory or rulemaking authority
  • Opportunities to eliminate unnecessary or superfluous revisions and opportunities to streamline review.

These agencies are to report their findings to the ERC by 1/1/2014. 

Representative Chris Millis, PE is leading this effort as an advisory committee member for the ERC.  NCBELS and PENC are named in the legislation as parties that will be working with the ERC to provide final recommendations before the start of the 2014 legislative session.

Please contact me immediately if you are interested in working on this issue. 

All of the provisions in HB 74 are effective when they become law.

***HB 480 – Environmental Permitting Reform (Legislative Priority) – sponsored by Rep. Chris Millis, PE

This legislation would establish a fast track permit for stormwater management permits much like the current program for sanitary sewer.  A working group of stakeholders, which includes PEs, would develop Minimum Design Criteria to include all requirements for siting, site preparation, design and construction, and post-construction monitoring and evaluation necessary for the Department to issue stormwater permits that comply with State water quality standards.

The working group would also be responsible for developing rules for the fast track process and providing final recommendations to the Environmental Management Commission.

The EMC must adopt the rules to institute this program by July, 2016. 

Please contact me immediately if you are interested in serving on this technical working group. 

 

Other Environmental Legislation

HB 279 – Transfer Environmental Permits

  • Allows NCDENR to transfer certain environmental permits to new permittee when original owner is unwilling or unable to agree to the transfer under certain conditions.  Applies to stormwater, water pollution, and local and state erosion control plans. 

HB 321 – Local Solid Waste Planning

  • Repeals the requirement that local governments develop and maintain a solid waste management plan.

HB 396 – Enact Private Well water Education Act

  • Requires local government to educate citizens owning or considering constructing a well of testing requirements and minimum drinking water standards.

SB 151 – Coastal Policy Reform Act of 2013

  • Senate version initially allowed unlimited number of terminal groins to be built but this was changed to allow only 4 for now
  • Keeps the measure contained in the 2011 bill that limits state to four hardened structures
  • Makes permitting and financing easier
  • Provides broader definition of terminal groin to clarify that the structure does not block movement of sand through the water and does not extend into the ocean.

Please note this update does not include updates to the Environment and Natural Resources section of the budget such as the actions taken with respect to the Rural center.  This information will
be sent out next week.

As always, if you have any questions, please contact me at bbailey@penc.org or 919-834-1144 ext. 1