August 5, 2013. Highlights of legislation on solid waste, hazardous waste and petroleum underground storage tanks.

CONTAMINATED SITES

STATE PURCHASE OF CONTAMINATED PROPERTY: One section of house Bill 74 (Regulatory Reform Act)  prohibits state agencies and the community colleges from buying property with contamination without first getting permission from the Governor and Council of State.  (The Council of State is made up of the elected heads of state departments, such the Attorney General, Commissioner of Agriculture, Insurance Commissioner, State Treasurer, etc.). To receive permission, the agency would have to show that state General Fund appropriations would not be used for the purchase. An earlier post, written when similar language first appeared in another bill, talks about the implications. The difference from the earlier version — the final provision does not apply to the UNC system campuses.

BROWNFIELDS:  The state’s Brownfields program provides tax benefits and environmental liability protection to a developer who is willing to clean up and redevelop a contaminated site.  (The person responsible for causing the contamination cannot benefit from the Brownfields program.) Redevelopment is done under an agreement with DENR’s Division of Waste Management that identifies the intended new use of the site and spells out what the developer needs to do to make the site safe for that intended use.  The General Assembly made two changes to the Brownfields program:

— Until now, a site with petroleum contamination from a leaking underground storage tank was not eligible for a Brownfields agreement.  House Bill 789 removes that restriction; a site that could otherwise quality for a Brownfields agreement will not be made ineligible because of a petroleum release.  UST sites had been excluded from the Brownfields program largely because of concern that tax incentives would be inappropriate for sites where the cleanup of contamination is already subsidized by taxpayers through the Commercial UST Trust Fund. The restriction had the unintended result of complicating efforts to redevelop large industrial sites where a UST release may have been just one of several sources of contamination.

— A provision in House Bill 74  exempts local governments from a minimum acreage requirement  (25 acres) for a local government Brownfields project if the developer already has a Brownfields agreement approved by DENR.

SOLID WASTE

FEES FOR LANDFILL PERMITS: House Bill 135 adjusts the fee schedule for landfill permits to match the options for five or ten year permits approved by the legislature in 2012.

ON-SITE DISPOSAL OF DEMOLITION DEBRIS: House Bill 706 (Preserve Landfill Space) allows for on-site disposal of demolition debris from manufacturing facilities and decommissioned electric generating stations. The bill exempts disposal of these materials from landfill standards and allows the debris to be buried on site under environmental standards set in the bill. Hazardous waste in the debris must still be disposed of under standards set in state and federal hazardous waste rules.

LANDFILL PERMITTING STANDARDS: Senate Bill 328 (Solid Waste Reform Act of 2013), which proposed to change many of the landfill permitting standards adopted by the General Assembly in 2007,  never got to a vote in the House.  Some of the less controversial pieces of Senate Bill 328  were adopted as part of  House Bill 74 (Regulatory Reform Act) just before the end of the legislative session. The changes adopted as part of  House Bill 74 include:

● Elimination of the requirement for a buffer between a landfill and state gamelands designated or acquired by the Wildlife Resources Commission after July 1 2013.  For gamelands designated before that date, the buffer will continue to be 1 mile  although  an exception was created for one proposed  construction and demolition debris landfill. That landfill will only be required to have a 500 foot buffer from a gameland designated before July 1, 2013. Based on the description in the bill, Jones County apparently will be the site of the C & D landfill that will benefit from the exception.  The bill does not change the buffers required between a landfill and a  National Wildlife Refuge (5 miles) or  state park (2 miles).  Note: The Jones County exception had been enacted as a separate bill (Senate Bill 24)  early in the session. The language was later added to House Bill 74 with the other solid waste permitting changes and modified to make it consistent with the final language in House Bill 74 on gameland buffers.

● Replacement of the 2007 requirement for annual cleaning of leachate collection lines with a requirement for video inspection of the lines every five years and cleaning as needed.

● A change to a long-standing rule requiring that vehicles used to haul solid waste must be leak-proof.  Under the bill, DENR must immediately begin to apply a different standard – that the vehicle be “designed and maintained to be leak-resistant according to industry standards”.  The Commission for Public Health is directed to amend the 1988 rule to reflect the change.

● A change in the definition of “leachate” to exclude liquid that adheres to the tires of vehicles leaving a landfill or solid waste transfer station.

CRITERIA FOR ASSESSING SOLID WASTE PENALTIES:  Sec. 49 of House Bill 74 sets more specific criteria for assessing civil penalties for violation of solid waste laws and rules. The criteria used are very similar to  criteria used in the water quality and air quality statutes.

LOCAL SOLID WASTE PLANS: House Bill 321 eliminates the requirement for each local government to have a 10-year solid waste management plan.  State law will continue to require annual reporting by each local government on the amount of solid waste generated and disposed of;   participation in recycling programs; programs for disaster debris, white goods disposal, scrap tires disposal; and other information on solid waste management.  A controversial provision that would have intervened in a  legal dispute between Union County and the operator of a C & D landfill in the county was removed before final adoption. (Background on the dispute can be found here.)

LOCAL SOLID WASTE FEES: House Bill 74 also amends the statutes that allow cities and counties to charge fees for solid waste disposal. The new language allows a local government to charge a surcharge for solid waste received from another local government jurisdiction. Unlike the fees charged to residents for waste disposal, revenue from the surcharge does not have to used for landfill operations; the surcharge can be used for any purpose or activity  the local government has authority to fund.

PETROLEUM UNDERGROUND STORAGE TANKS

The bill changes state law to require owners of  noncommercial underground petroleum storage tanks to pay a deductible of $1,000 and a 10% co-payment for environmental cleanup  if the tank leaks. The bill caps the total contribution required from the tank owner at $2,000 for the combined deductible and co-payment.  Until now, the state’s Noncommercial Underground Storage Tank Trust Fund paid the full amount of cleaning up soil and groundwater contamination from a noncommercial tank and the tank owner only paid for removal of the leaking tank. (“Noncommercial” tanks include home heating oil tanks and farm or residential motor fuel storage tanks that hold less than 1,100  gallons.)

Note on House Bill 74:  Many of the changes in law described here appear in House Bill 74. The Governor has not yet signed the bill and expressed  concern about some parts of the bill — including the solid waste provisions — in a press conference at the end of the legislative session. The Governor has until August 25 to sign H 74, veto the bill,  or allow it to become law without his signature.