Controversial ex-DEQ chief Donald van der Vaart nominated to Environmental Management Commission

Van der Vaart: supporter of Trump, critic of regulation, was in charge during some of the state’s most troubled times in modern environmental history.

Before Sen. Phil Berger flew to Berlin to attend the Senate Presidents’ Forum earlier this month, he had to attend to an important piece of housekeeping. He nominated 120 people to serve on state boards and commissions. Bundled in Senate Bill 686, some of these bodies, like the Locksmith Licensing Board, are mundane. Others, though, play an important role in high profile matters of rule-making and public policy.

The Environmental Management Commission is one of those key bodies. And Berger’s new nominee to the EMC is Donald van der Vaart, a polarizing former secretary of North Carolina’s Department of Environment and Natural Resources (now the Department of Environmental Quality), a Trump supporter and an anti-regulation free marketeer.

The Trump administration should take the lead and open an investigation into these allegations. Only then will we learn which environmental groups are serving as proxies for the Russians, and which groups are not.” – The Hill, 8/13/2018

The van der Vaart who aspired to become EPA administrator while calling for the abolition of the agency, but settled for a seat on its Science Advisory Board. The van der Vaart who began his scientific career working for Shell Oil, supports offshore drilling and questions the degree of human influence on climate change.

Van der Vaart spent just two years as Secretary of the Environment, from January 2015 to December 2016, but the state is still dealing with the ramifications of some of his his actions – or inaction – during his brief tenure. (As an aside, van der Vaart would sit on the EMC with former DEQ Assistant Secretary Mitch Gillespie, whom van der Vaart demoted and exiled to western North Carolina. Scroll down for a chart outlining some of the vicissitudes of power.)

We must put an end to the idea that more regulation is always good, and instead allow state and local experts to improve the environment.” – Letter from van der Vaart to President-elect Donald Trump, November 2016

The appointments bill passed the state Senate Monday, and is awaiting action in the House.

The high-profile issues that continue to dog the state include coal ash contamination, industrialized swine farms and perfluorinated compounds in drinking water, as well as lesser-known problems involving the reclassification of surface waters. Van der Vaart was outspoken about his disdain for regulatory obstacles to business and industry. He consistently sided with those interests, even cutting the number of air quality monitors in the state from 132 to 62, according to a 2015 editorial in the Charlotte Observer.

The 2014 Dan River coal ash disaster occurred under John Skvarla, Gov. Pat McCrory’s first DEQ secretary. But van der Vaart was in charge when agency leadership and their counterparts at the state health department reversed a decision on whether well water near Duke Energy coal landfills was safe to drink.

Van der Vaart also advocated for the controversial “cap-in-place” method of coal ash disposal – also preferred by Duke Energy – which keeps the material onsite but with a synthetic cap to keep water from entering the unlined basin. During public meetings, North Carolinians overwhelmingly opposed the method because of the threat to groundwater and drinking water wells. But van der Vaart said cap-in-place “minimizes impacts to electricity rates, is allowed under federal law, and will be widely used in other states.” (Several other states in the Southeast are fully excavating the ash and have abandoned the cap-in-place idea.)

The extreme environmentalist left is distorting his mainstream views because they want to bully Americans into their job-killing climate change agenda. …

Mr. [Scott] Pruitt will restore a thoughtful balance to EPA and will seek to preserve the environment in a responsible manner that will not unduly sacrifice our nation’s economic well-being to appease the extreme left.” – The Daily Caller, 12/15/2016

Lawsuits filed by the Southern Environmental Law Center forced Duke Energy to excavate coal ash basins at eight of its 14 North Carolina plants. DEQ, now piloted by Democrat Roy Cooper’s administration, announced in April that it would require full excavation at the remaining six, over the objection of the utility. Duke has filed for a contested case hearing at the Administrative Office of the Courts, arguing there is no scientific reason to excavate the basins. Groundwater monitoring within the plant boundaries continues to show elevated levels of some compounds associated with coal ash.

Recent testing shows that groundwater near the Brickhaven mine in Chatham County, where millions of tons of coal ash has been deposited, also shows elevated levels of these compounds. Van der Vaart was in charge when DEQ issued permits for the Brickhaven and Colon mines to receive the ash, again, over the communities’ objections. (Colon has yet to receive ash.) DEQ has since required Duke Energy contractor Charah to provide a work plan to assess the source and extent of the contamination at Brickhaven by Aug. 21. If coal ash is determined to be the source, it’s likely that lawsuits will follow.

The van der Vaart-era DEQ often clashed with the EPA, the agency he later sought to lead.

Just this week, the Environmental Management Commission had to clean up a legal mess left over from the previous administration. In 2015, the EMC, which had a significantly different membership, reclassified part of the Lower Cape Fear River as swamp waters, which would allow pollution from industrial swine and poultry operations to go unchecked.

“The proposal would have had no effect on traditional agriculture, animal operations and land application,” among other uses, DENR (now DEQ) wrote at the time. Nor would the proposal include “language about correcting or reducing pollution, as it is not designed to be a water quality restoration plan.”

The EPA disagreed with the reclassification and required the state to align with federal law by removing the swamp classification. The EMC voted to do so this week, and directed the Division of Water Resources to craft a plan to manage water quality in that segment of the Lower Cape Fear.

“All I’m saying is, yes, we contribute [to climate change]. But I’m not prepared to say it’s the only factor.” –  New York Times, 2/21/2018

The EPA also castigated van der Vaart for failing to allow citizen input in the administration of environmental permits. In a letter from 2015, the EPA Region 4 administrator told van der Vaart that the agency’s authority to run its air and water permitting programs was in jeopardy because it was excluding the public from the appeals process.

And in 2017, shortly after the change in administrations, acting DEQ Secretary William Ross (he filled in briefly while Michael Regan awaited confirmation by the legislature) received a letter from the EPA Office of Civil Rights saying it had “grave concerns” about the disproportionate impact of industrialized swine farms on communities of color, as well as a “potential hostile and intimidating environment for anyone seeking to provide relevant information to NC DEQ or EPA.”

The swine operation permitting occurred under Skvarla too, which triggered a civil rights complaint. The EPA ordered DEQ and the complainants – the neighbors of the hog farms and their attorneys, Elizabeth Haddix and Mark Dorosin – to enter confidential mediation.

But in January 2016, under van der Vaart’s leadership, DEQ officials were accused of tipping off NC Pork Council representatives to the mediation. Even though the Pork Council was not a party to the mediation, several representatives showed up, anyway. Given the tense history between the Pork Council, swine farmers and their neighbors, the complainants viewed the intrusion as an attempt to intimidate them.

The EPA and DEQ finally settled the complaint, and some of the agreement was incorporated into the most recent swine operating permits. Those permits are now being legally challenged by the Farm Bureau and the state Board of Agriculture, who say DEQ overstepped its authority. The NC Environmental Justice Network has also filed court documents, arguing the permits aren’t stringent enough.

And in September 2016,  the EPA disapproved of North Carolina’s implementation plan for air quality rules, as they related to emitters of fine particulate matter. That pollution, known as PM 2.5, is important because it burrows into the lungs and can cause or worsen respiratory illnesses.

As for Per- and polyfluoroalkyl substances (PFAS), under van der Vaart, DEQ knew of an N.C. State study showing GenX was present in the Cape Fear River, a major drinking water supply for southeastern North Carolina. The agency sat on the information and didn’t pass it along in transition documents to the new DEQ leadership.

And now PFAS, including GenX, are not only a state drinking water crisis, but a national emergency. 

After more than a decade of muddling through middle management in the Division of Air Quality, van der Vaart skyrocketed to power within two years of the election of Republican Gov. Pat McCrory, in 2013. In January 2015, McCrory sent his initial appointee, John Skvarla – an official who’d sparked controversy for positing that oil is a renewable energy resource – to lead the Commerce Department. McCrory then tapped van der Vaart, who had been serving as a deputy secretary and an energy policy advisor, to be in charge.

But the agency was headed for a shakeup in November 2016, when Democrats gained control of the executive branch with the election of Gov. Roy Cooper. Since Cooper would be installing his own secretaries and cabinet members, van der Vaart, a Republican political appointee, would surely be ousted. During that period, he wrote a letter to President-elect Donald Trump, congratulating him on his win and calling for the abolition of the EPA. He effused similar public praise on Myron Ebell, a climate change denier leading the Trump transition team, both moves suggesting that the North Carolina appointee was seeking an appointment to a higher office.

And, in a move that helped ensure he would remain on the public payroll while awaiting a possible federal appointment, van der Vaart demoted himself and his chief deputy, John Evans, to mid-level management positions in their previous branch of the agency, the Division of Air Quality. Within a year, though, van der Vaart and Evans were placed on investigatory leave after publishing an anti-regulatory opinion piece on air quality in a widely read national environmental law journal that contradicted the Cooper administration’s stance.

Both men resigned. After that, van der Vaart joined the staff of the conservative John Locke Foundation, where he is employed as a Senior Fellow focusing on energy and environment issues.