New Petition Underscores Legislative Restrictions

Four citizen environmental groups have asked the U.S. Environmental Protection Agency (EPA) to revoke its delegation of enforcement power under the Clean Water Act (CWA) to the State of North Carolina. The groups assert that the ability of NC state environmental agencies to enforce the law has been paralyzed by a series of state legislative restrictions, and that as a result the state is no longer meeting its obligations to protect public health and the environment from water pollution.

The Petition

The Southern Environmental Law Center (SELC) filed the petition on behalf of Cape Fear River Watch, Environmental Justice Community Action Network, the Haw River Assembly, and MountainTrue. “The people of North Carolina deserve clean water, yet the state legislature is preventing the state from limiting toxic pollution of our waterways and drinking water,” said Mary Maclean Asbill, director of SELC’s North Carolina Offices. “Legislative-induced failure is not an option when it comes to protecting North Carolina’s water and communities, so we are asking the Environmental Protection Agency to step in.”

The SELC petition includes the following points:

• Pro-polluter (“supermajority controlled”) commissions are blocking the NC Dept. of Environmental Quality (DEQ) efforts to protect North Carolinians from toxic chemical pollution, including from PFAS and 1,4-dioxane.
• New laws enacted by the state legislature “give a free pass to polluters” by mandating weak state permits for fish farms and certain wastewater treatment plants.
• The legislature’s “decade-long failure to properly fund DEQ endangers North Carolinians by sabotaging the state’s ability to protect communities from harmful pollution.”
• The NC Office of Administrative Hearings (OAH) is preventing the state from complying with the CWA by striking down enforcement cases and assessing massive fines against the DEQ itself instead for its enforcement efforts.

The last point in particular references decisions by the Chief Administrative Law Judge of the OAH, Donald Van der Vaart. Van der Vaart is notorious in North Carolina for his history of decisions on behalf of polluters and against strong pollution control measures when he was the appointed head of the state’s primary environmental enforcement agency (now DEQ) under former NC Gov. Pat McCrory. Van der Vaart is regarded by many North Carolina environmental advocates as the most pro-polluter individual to have ever been misplaced into authority over the state’s chief environmental agency. 

EPA Mediates

In response to petitions like the one filed against North Carolina in this case, the EPA can mediate and try to reach a settlement between the state and the petitioners. Ultimately, however, if “the EPA determines that North Carolina is not adequately managing its responsibilities, the agency could revoke the state’s authority to issue permits for discharges and other regulated activities, which would require entities to obtain the permits directly from the EPA.”