April 25, 2015. Since an earlier post briefly described Senate Bill 303 (Protect Safety/Wellbeing of N.C. Citizens), the bill has passéd the Senate in a form that could  put the state’s delegated Clean Air Act permitting and enforcement programs at risk. The bill  passed by the Senate:

♦  Requires a 3/5 vote to of the Environmental Management Commission (EMC) to adopt state rules consistent with federal New Source Performance Standards (NSPS); these  Clean Air Act standards apply to large, stationary sources of air pollutants such as power plants.

♦ Requires a 3/5 vote of the EMC  to adopt new federal hazardous air pollutant (HAP) standards as state rules. The hazardous air pollutant standards regulate emissions of  toxic air pollutants such as mercury and arsenic.

♦ Requires legislative review and approval of all state rules adopting federal air pollution standards.

♦ Prevents the state Division of Air Quality from enforcing existing NSPS and hazardous air pollutant standards after January 1, 2016 unless the EMC has readopted all of those standards under the new requirements for a 3/5 vote of approval and legislative review.

A story  by Gabe Rivin  in N.C. Health News reports that the Department of Environment and Natural Resources  (DENR) supports the bill and  quotes DENR Assistant Secretary Tom Reeder describing the bill as benign. According to the story,  a DENR spokesperson did express concern about the provision that could end state enforcement of existing federal air quality standards on January 1, 2016. (That provision was added to the bill in a floor amendment.)

Failure to adopt and enforce federal Clean Air Act standards could have  serious implications for the state’s delegated Clean Air Act permitting and enforcement authority.   North Carolina  currently has full delegation of authority from the U.S. Environmental Protection Agency (EPA) for Clean Air Act programs.  (All 50 states have taken on full or partial delegation under the Clean Air Act.)  Failure  to adopt a new federal standard may have a greater or lesser impact on the state’s delegated authority depending on the type of rule.  An end to all state enforcement of federal NSPS and hazardous air pollutant standards would presumably require EPA to withdraw the state’s delegated authority entirely.

Whatever the impact of Senate Bill 303 on state rulemaking, federal air quality standards will continue to apply to sources in North Carolina.   If the state refuses to enforce a federal standard, EPA will step in and do it.  Senate Bill 303 cannot free N.C. industries and utilities from compliance with federal air quality standards. On the other hand,  loss of state delegation under the Clean Air Act may disadvantage those industries and utilities in two ways: 1. permitting and enforcement matters would have to be resolved with EPA rather than a state agency;  and 2.  regulated sources may lose the benefit of  flexibility in permitting and enforcement allowed to states implementing federal requirements through a delegated program.

It isn’t clear who  Senate Bill 303 would  benefit. Assistant Secretary Reeder’s comments suggest the bill could help the department avoid new, burdensome Clean Air Act responsibilities. But the one example offered  —  a new NSPS standard for wood heaters — is entirely enforced by EPA through third-party certification of  manufacturers.  (Find EPA information on enforcement of the wood heater standard here.) Since EPA does not delegate enforcement of the wood heater rule to the states, there is no real danger the state would  be required to visit homes to inspect wood heaters.

The state already has the ability to decline new federal rule delegations and to give up existing delegations under the Clean Air Act.  It seems the kind of decision best made deliberately and after a clear-eyed assessment of the  consequences  — not as a side-effect of failure to adopt a rule by a supermajority.

Update: The original post has been updated to add a link to the EPA webpage on enforcement of the wood heater standard.

Correction: The post has been updated to correctly identify the publication in which Gabe Rivin’s story appeared — N.C. Health News.