Policy Brief: Titan Cement

The NC Sierra Club wants to keep you informed on all the bills we're following during the short session. Over the next couple weeks we'll be rolling out these policy briefs in an attempt to do that. The following was written by Kim Rankin an intern from Duke who is tracking a number of policy issues for the Sierra Club.


TITAN CEMENT AND SEPA

Senate Bill 699 / House Bill 1462: Cement Plant Moratorium and Study
Senate Bill 778: Eliminate Overlap Between CAMA and SEPA

A recent ruling by a Wake County Superior Court Judge has both citizens and environmental groups waiting to see what Titan America will do next. Titan America has plans to develop a cement plant on the banks of the Cape Fear River and requested air quality permits to begin construction on the plant from the NC Department of Environment and Natural Resources (DENR). Community advocates petitioned the Department of Administration to stop the permit consideration and require an environmental impact review under the State Environmental Policy Act (SEPA). However, the Department of Administration supported DENR’s actions and in response, community advocates brought a lawsuit against the state to a Wake County Superior Court, demanding an environmental review under SEPA. The Judge ruled in favor of the environmental organizations, requiring a comprehensive environmental impact review of Titan’s project before permits could be issued. The community is now waiting to see if Titan America will appeal the ruling, meanwhile a bill urging for a moratorium on cement plants in North Carolina sits in the General Assembly.

In 2008, Titan American received an incentive package of $4.5 million to build the nation’s fourth largest cement plant in Castle Hayne, NC, just outside Wilmington, NC. The cement plant will add only 160 jobs to New Hanover County, and citizens, the Sierra Club and other environmental groups alike oppose it because the plant will destroy 1,000 acres of wetlands and will release air pollutants like mercury and hydrochloric acid in an area already impaired by mercury contamination. Nearly 200 local physicians signed a petition opposing the Titan cement plant, which would become the 5th largest emitter of mercury in the state.

As a requirement for the wetlands permit sought from the Army Corps of Engineers in Wilmington, Titan America began an environmental review in 2008 under the National Environmental Policy Act (NEPA), which would fulfill the citizen-demanded environmental review in New Hanover County. However, Titan put the effort on hold to focus on obtaining air quality permits through DENR, claiming it will continue the review once the permits are issued. Against public outcry, DENR moved forward with consideration of the permits, even issuing a draft permit without any request for an environmental impact review. Local citizens and environmental groups petitioned the North Carolina Department of Administration for an environmental review of the project, claiming it was against the law to issue permits before a review under SEPA. However, the Department of Administration supported DENR’s actions, stating that SEPA does not apply to Titan because they are not receiving public money.

This led to a lawsuit between the North Carolina Department of Administration and the Duke Environmental Law and Policy Clinic and the Southern Environmental Law Center, both of which together represented the environmental groups Pender Watch and Conservancy, North Carolina Coastal Federation, and Cape Fear River Watch. The Duke Environmental Law and Policy Clinic and the Southern Environmental Law Firm rightly argue that SEPA does apply to Titan. SEPA is required when a project is built on public land or with public money and has serious potential environmental impacts and the law firms argued that the incentive package is considered public money.

On Monday, May 3, 2010, Wake County Superior Court Judge Donald W. Stephens ruled that Titan is subject to a SEPA environmental review, the state incentive package is considered public money, and that the State must stop all permitting processes until the review is completed. This ruling may delay the project up to two years and it is currently unknown if Titan America or the State will appeal the ruling. A press release issued by Titan stated they are “disappointed” in the Judge’s ruling and are “evaluating next steps.” If Titan continues its initial review under NEPA for the wetlands permit, it will satisfy the requirements of SEPA.

Senate Bill 699 and its companion House Bill 1462, Cement Plant Moratorium and Study, attempts to place a moratorium on consideration of permit applications and issuance of permits for the construction and operation of cement plants in North Carolina until September 1, 2010 and to direct the Environmental Review Commission to begin a study of issues related to the environmental impacts of cement plants. North Carolina Sierra Club supports this bill because the cement industry is a polluted one and a study must be done of the environmental impacts of such a plant, particularly in the wake of the Titan America cement plant court case.

Senate Bill 778 attempts to eliminate overlap between the Coastal Area Management Act (CAMA) and the State Environmental Protection Act (SEPA). Currently under NC laws, coastal projects need to get approval under CAMA but large projects that have the potential for substantial environmental impacts must also be approved under SEPA. S778, which North Carolina Sierra Club opposes, would exempt CAMA projects from SEPA. This would eliminate opportunities for concerned citizens to offer comments during the CAMA permit process due to the elimination of the SEPA pre-review where explanations for the need of the project, assessments of environmental impacts and potential mitigation, and analysis of alternatives would be released. This is also concerning in the light of the Titan America lawsuit, as Carolinas Cement intends on building the cement plant in a coastal area.

Senate Bill 699 is currently in the Senate Committee on Appropriations and Base Budget. House Bill 1462 is currently in the House Committee on Environment and Natural Resources. Senate Bill 778 is currently in the House Committee on Environment and Natural Resources. North Carolina Sierra Club is the lead lobby group on the Titan America cement plant issue and will be tracking the progress of these bills during the General Assembly 2010 Summer Legislative Session.