The North Carolina Chamber hosted its annual Environmental Compliance Conference on February 1, 2018, in Durham. North Carolina leaders were on hand to provide updates and advice on environmental compliance regarding air, water, waste, and coastal development across the state.
North Carolina Department of Environmental Quality Secretary Michael Regan kicked off the conference with agency-wide comments. He covered Department goals, coal ash, and GenX before responding to further questions from the press.
Secretary Regan's comments were an excellent segue into a panel presentation on criminal environmental enforcement. Takeaways from the panel included:
- The attorney-client privilege does not protect the underlying facts from discovery, especially if the attorney merely is "cc'd" in an email;
- Be truthful about all facts and involve counsel a soon as possible—unlike wine, information does not get better with age;
- Let the attorney decide what is relevant to an investigation; and,
- Employees are important! Communicate with them during an investigation and reassure them while keeping confidences. Pay attention and respond to employees' concerns; don't disregard the employees lest they become disgruntled and leak information. Boost employee morale by emphasizing good, hard work.
Division of Air Quality
The Department's Division of Air Quality ("DAQ") provided updates on North Carolina meeting the U.S. Environmental Protection Agency's National Ambient Air Quality Standards. The whole state, including the Charlotte area, is in attainment.
DAQ updates also included emerging contaminants—beyond GenX—as an issue for air and not just water. The state is working to understand how contaminants behave in the environment and affect human health.
Finally, North Carolina may see relief through the Trump administration's "cooperative federalism" as the EPA backs off of its call to review all State Implementation Plans that do not comply with the Clean Air Act's startup, shutdown, and malfunction provisions for facilities with air emissions permits.
Division of Water Resources
Updates and compliance advice from the Division of Water Resources delved into several areas including:
- The expanding conundrum of more emerging contaminants appearing downstream from major industrial facilities. The Division is working with educational institutions with resources on the research side to determine safe levels for human health and the environment. Also, the backlog of National Pollutant Discharge Elimination System ("NPDES") wastewater discharge permit renewal applications is starting to ease as the agency realigns staff and prioritizes projects. Expansion requests are being looked at before status quo renewals. Expect to see fees adjust upwards, even with the increase in the Division's electronic management of permits and communication.
- Review and re-adoption of certain water resource rules. This summer and fall the 2B administrative rules on nutrients are targeted due to the EPA's 303(d) list of impaired waters in the state, which include the French Broad, Neuse, and Cape Fear rivers. The Division expects more changes than occurred during the re-adoption of the 2H permitting rules, but the Department is cognizant that rules need to balance protection with economic sense.
- Water supply issues that are outside the context of contaminants. For the competing forces of drought and hurricane management, the Division encourages working with local municipalities to address supply and planning to provide for water conservation.
- The "grey tsunami." Several divisions within the Department commented on the impact of the retirement of career Department personnel with historic institutional knowledge and experience. It was noted that the effects of these changes are being felt by many in the private sector.
Division of Waste Management
The Division of Waste Management provided updates across topics touched by its many programs, including that rule review will occur and will result in changes to the Dry-Cleaning Solvent Cleanup Act Program rules. The Division also reported that it is embracing electronic document management, and hopes to have a groundwater database usable by the public this summer. The Brownfields Program is levelling out some growing pains caused by increased use of the program. Redevelopment projects should expect eligibility determinations to be made usually within four to six weeks after submission of a complete application. The express Redevelopment Now track takes approximately 9-12 months, while the regular track is taking at least 18-24 months. Finally, an excellent panel of agency and consulting representatives explained the Division's automated risk calculator and how it can be used at contaminated sites to achieve risk-based closures.
Coastal Area Management Act
A presentation on the original Coastal Area Management Act ("CAMA") wrapped up the Conference Process. Permitting issues were explained for those businesses that locate to or expand within the 20 coastal counties. Development activities within areas of environmental concerns and the multi-agency CAMA Major Permit process were also discussed.
As in the past, the Conference drew a diverse crowd across industry, consulting, and legal sectors. Diversity was also apparent in the array of presenters—9 of the 17 presenters were women from industries historically dominated by men.
The Conference continues to be a great opportunity to deepen network connections and make new ones to work together moving forward for common projects. Ward and Smith was pleased to be invited to participate and to have its attorneys serve on Conference panels.
Thank you to the North Carolina Chamber for the opportunity to be "a force for business." #NCEnviro.
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This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.