Category Archives: General Observations

General comment on environmental issues

2015 Environmental Bills — Part II

April 17, 2015. A continuation of the previous post. Not a complete list, but hopefully  most of the significant bills.

Amend Environmental Laws.  In the category of you just can’t have too many — there are actually three “Amend Environmental Laws” bills this session (so far).  As noted in the previous post, House Bill 157 (Amend Environmental Laws) has already been enacted into law and House Bill 593 (Amend Environmental Laws-2)  amends  laws allowing reimbursement for third-party damage claims as a result of leaking petroleum storage tanks. I missed House Bill 576 (Amend Environmental Laws-1); at the moment, the bill  amends  solid waste laws to allow  the white goods tax (currently used by local governments to manage discarded refrigerators and other large appliances) to also be used for programs to manage discarded electronic devices.    Amend Environmental Laws-1 may also pick up additional provisions as it moves through committee.

Contaminated Sites. House Bill 748 (Establish Contamination Source Removal/Disposal Bd) creates a new full-time  (salaried) board to take over DENR’s responsibility for cleanup of contamination at pre-1983 landfills and other contaminated sites. The “pre-1983 landfills” are unlined waste disposal  sites — in some cases,   simply  dumps –that stopped operating before 1983 to avoid having to comply with federal standards for waste disposal facilities.  Many have groundwater contamination.  A 2007  state law  gave DENR responsibility for assessing and remediating the sites. Many of the landfills had been operated by local governments, so the 2007 legislation freed local governments of the potential environmental liability in return for a state solid waste disposal tax to fund cleanup.  House Bill 748  expresses concern about the slow pace of remediation.  It will be interesting to get more of the back story on the bill.  The concern may be as much about unspent funds earmarked for the cleanup as it is about unremediated contamination;  a  pot of money always attracts attention.  Reality is that contaminated sites require a  lot of assessment work before actual cleanup can begin.  Most  state-funded remediation programs have had a slow start up before making significant outlays for remediation.

Also,  a note that  House Bill 639 (Risk-based Remediation Amends) proposes the same amendments to remediation laws that appear in the Senate regulatory reform bill. You can find a description of those provisions in an earlier post.

Fracking. House Bill 773 would strengthen  requirements for public disclosure of chemicals used in hydraulic fracturing fluid.

Riparian Buffers. House Bill 760 is the  House regulatory reform bill.  The environmental provisions include significant changes to state laws allowing use of riparian buffers to protect water quality. It isn’t clear exactly how broad the bill’s restrictions on local government buffer ordinances are intended to be.  The bill amends a law written to allow  state delegation of riparian buffer programs under the nutrient sensitive waters (NSW) rules to local government, but  some of the bill language could be interpreted to prohibit local adoption of riparian buffer ordinances for any other purpose:

Units of local government may impose restrictions upon the use of riparian areas as defined in 15A NCAC 02B.0202 only within river basins where riparian buffers are required by the State.

Local riparian buffer ordinances  are sometimes adopted in response to other  state/federal water quality mandates  — such as Phase II stormwater permit conditions, water supply watershed regulations and endangered species management plans. So a local buffer ordinance may be needed to meet a water quality standard or  permit condition, but  not specifically required under state rules applicable to the entire river basin.  Assuming  the bill did not intend to prohibit use of riparian buffer ordinances to meet  other state and federal water quality mandates, it would be helpful to make that clear.

In  areas covered by the NSW buffer rules, the bill exempts residential lots platted before the buffer rules went into effect — even if the property could be developed for its intended purpose in compliance with the buffer requirement. (There are already exemptions and variances that cover previously platted lots that cannot be developed in full compliance with the buffer requirement.)  The buffer  rules are  part of  broader  water quality strategies designed to meet  federal Clean Water Act requirements. The Clean Water Act requires the state  to adopt a Total Maximum Daily Load (TMDL) –in effect, a cap —  for any pollutant causing impaired water quality. A number of state  water bodies, including the Neuse River and Falls Lake,  have impaired water quality due to excess nutrients  — particularly nitrogen and phosphorus.   The nutrient management rules provide the regulatory  underpinning  for  TMDLs that set nitrogen and phosphorus reduction targets for  those  rivers and lakes.    The rules include  riparian buffer requirements as a critical  tool in reducing the amount of nitrogen and phosphorus that runs off the land into surface waters. One question may be whether such a broad exemption from the buffer rules will allow the state to meet the federally-approved TMDLs.

The bill would also require that riparian buffers on shorelines bordered by coastal wetlands or marshland be measured from the waterward edge of the wetland. The term “coastal wetland” includes both wetlands that regularly flood on the tides and wetlands that flood on wind tides and seasonal high tides.  Under the provision, the “buffer” would often consist of wetlands with a frequent, direct  connection to coastal waters;  in some cases,  the buffer would effectively be in the water. The change would seem to defeat the purpose of having a buffer to allow polluted runoff to infiltrate through the soil rather than go directly into the water.

Stormwater. On the face of it,  House Bill 141 (Stormwater/Flood control) authorizes cities to use existing stormwater management programs to address flood risk by purchasing properties at high risk of flooding, elevating existing structures, and retrofitting  structures to reduce flood risk. The bill seems  intended to allow  cities in more populated counties to expand the purpose of existing stormwater programs to include flood management as well as water quality protection.  (The bill would limit the new authority to cities in a county with a population of 910,000 or greater and at least one city with a population of 500,000 or greater.)  One possible pitfall  — the bill could be interpreted as limiting the authority of other North Carolina towns and cities  to take similar actions through flood hazard mitigation projects.  For example, the small coastal town of Belhaven  has done a major flood hazard mitigation project  to elevate structures in areas repeatedly flooded due to hurricanes.   House Bill 141 may need to be clarified to avoid undermining cities and towns’  existing authority  to reduce flood hazards.

N.C. General Assembly: 2015 Environmental Bills

April 15, 2015.   The final bill introduction deadline  fell  yesterday for bills that don’t affect finance or appropriations,  so it is a good time  to look at the environmental bills  introduced and awaiting action. The General Assembly can also amend environmental laws  in the budget bill or by completely rewriting a bill on an entirely different subject, but with that warning in mind:

House Bill 795 SEPA Reform  would  greatly  limit the number of  projects requiring an  environmental impact statement (EIS) under the state’s Environmental Policy Act (SEPA).   Adopted in 1971, SEPA requires an  EIS  for projects that potentially have a significant environmental impact, need a state approval (such as a permit), and involve either the use of public funds or use of public lands.  Unlike its federal counterpart (the National Environmental Policy Act  or “NEPA”), the state law  has never applied to  privately funded development projects no matter how significant the environmental impact. To require an EIS under the state law, there must be public investment ( which could mean either state or local government funding) or use of public land.  Typical projects requiring an EIS in the past would be  a new wastewater treatment plant; a county landfill; a major development project on state-owned submerged lands; or activities on state parkland.

House Bill 795 proposes to  limit SEPA review  to projects involving $20 million or more in public funding or land-disturbing activity affecting 20 acres or more of public land.   It is difficult to know what percentage of projects required to do an EIS in the past would avoid  SEPA review under the amended law, but it is reasonable to assume that many public  projects fall below the $20 million threshold. Controversial proposals for use of state parks and tidelands could also avoid SEPA review because — whatever the other impacts of the project —  an EIS would only be required for land-disturbing activity that permanently alters the landscape and affects 20 acres or more. For projects that exceed the new size and funding thresholds, House Bill 795 provides additional  SEPA exemptions  for projects receiving  certain types of state approvals. Some of the approvals listed in the bill, such as a certificate of convenience and necessity for a  public utility infrastructure project,  do not  involve  any environmental review.  (That particular exemption also doesn’t seem to serve a purpose;   the “public utilities” that need a certificate of convenience and necessity are by definition not owned or operated by a governmental  entity and  don’t involve public funds.)

For projects that would still require an EIS under the amended law, the bill also limits the scope of the EIS.  Under the bill,  the EIS would only describe direct project impacts — eliminating consideration of indirect and cumulative impacts.

Projects  exempted from the EIS requirement would still need  any necessary environmental permits, but permit reviews tend to be more narrow than an EIS. The EIS looks beyond one set of permitting standards to evaluate the environmental impacts of the project as a whole — which can include consideration of noise, traffic, endangered species, historic sites, and effects on minority and low income communities as well as natural resource impacts. Projects that require a federal permit could still trigger NEPA review; what the state may lose is an opportunity for the same comprehensive review and public input on projects that do not require a federal permit —  which may include some landfill projects and inter-basin transfers.

THE OMNIBUS BILLS (AMEND ENVIRONMENTAL LAWS AND REGULATORY REFORM)

In every recent legislative session, the General Assembly has enacted an Amend Environmental Laws bill  and a Regulatory Reform bill. Both bills become vehicles  for multiple changes to environmental laws. See an earlier post for a description of Senate Bill 453, the Regulatory Reform Act of 2015.

At the moment, House Bill 593 (Amend Environmental Laws-2) only  contains provisions amending  state law on reimbursement of third-party damage claims by the state’s petroleum underground storage tank (UST)  trust funds.  (The UST trust funds can reimburse UST owners for up to $1,000,000 in third-party claims for property damage or personal injury resulting from a petroleum release.)  The amendments require the UST owner to provide specific documentation of the third party damage claim; add definitions of “third party”, “bodily injury” and “property damage”;  and provide more  direction on how to calculate  compensation for  property damage.

It is the  nature of  both the Regulatory Reform and Amend Environmental Laws bill to pick up baggage as the session goes along.  Expect new versions of each bill  as the bills move through committee.

Note: This bill is Amend Environmental Laws-2 because  House Bill 157 (Amend Environmental Laws) has already been enacted into law as Session Law 2015-1. H 157 generally made uncontroversial and technical changes to solid waste laws, the Coal Ash Management Act and other environmental laws. The one provision in H 157 that  created some controversy amended a state law requiring the Environmental Management Commission to adopt air toxics rules for hydraulic fracturing sites.The bill replaced the requirement with language authorizing the EMC to adopt  air toxics  standards for fracking sites  if necessary to protect public health, safety, welfare and the environment.

AIR QUALITY

Senate Bill 303  Protect Safety/Wellbeing of N.C. Citizens  prohibits state enforcement of any federal standards for wood heaters used for home heating.  The bill  is interesting as an example of  state legislation intended to nullify  a federal standard.  In February, EPA adopted updated performance standards for wood heaters. Federal air quality rules have included standards for wood heaters since 1988; the new rule updates the standards to reflect changes in technology and to  regulate  wood-burning boilers and wood-burning furnaces as well as wood stoves.   The  revised  standards only apply to newly manufactured wood heaters, phase in over several years and do not affect fireplaces (at all) or wood heaters already in use.  An EPA fact sheet provides an overview of the rule.  Generally, N.C.’s delegated authority to implement Clean Air Act programs  requires the state  to adopt and enforce federal new source performance standards, but EPA has not delegated enforcement of the wood heater rule to the states.

House Bill 169  Limit Motor Vehicle Inspections  eliminates motor vehicle emissions inspections in six counties  (Burke, Granville, Haywood, Rutherford, Surry and Wilkes). Forty-eight of N.C.’s 100 counties require annual emissions inspections as part of the state’s plan to meet the  federal ozone standard under the Clean Air Act. Recently, the Department of Environment and Natural Resources (DENR) issued a  report concluding that emissions inspections could be eliminated in as many as 28-31 counties without  violating either the current ozone standard or the stricter ozone standard EPA  will  finalize by the end of the year. Given the DENR report, expect the number of counties  the bill removes from the emission inspection program to increase.  Since the emissions inspection program has been used to meet a federal air quality standard, any change by the General Assembly must have EPA approval.

House Bill 172 Fracking – Protecting the Public requires the Environmental Management Commission to adopt rules establishing best management practices and  leak detection and repair standards to  minimize air emissions from natural gas operations. The bill approaches the related problems of wasted natural gas and  air pollution by focusing on  ways  to minimize unintended releases resulting from leaky equipment or inefficient practices during exploration, development, production, processing and compression of the natural gas.

House Bill 571 Implementation of Carbon Dioxide Regulations requires DENR  to begin work on a plan to comply with new federal regulations reducing carbon dioxide (CO2) emissions from power plants. EPA’s Clean Power Plan rule sets a CO2 reduction goal for each state, but states have flexibility in the mix of power plant emission reductions, renewable energy generation, and energy efficiency measures used to meet the goal.  Find  more background on the federal rule here. Each state  must  submit a plan for meeting its   CO2 reduction goal by June 2016, although EPA can extend the deadline if the plan needs legislative approval or relies on a multi-state strategy.  DENR does not appear to have any effort underway to develop a plan. Instead, DENR has both  questioned the legal basis for the federal rule and urged EPA to delay implementation until lawsuits  challenging the rule  have been resolved. House Bill 571 appears to be intended to push DENR to begin  work  on a CO2 reduction plan and do it in a way that provides for  input from both stakeholders and the public.

COAL ASH

House Bill 448 Extend Coal Ash Structural Fill Moratorium  The Coal Ash Management Act of 2014 put new, stricter standards in place for large projects using coal ash as structural fill .  ( “Large” means > 8,000 tons per acre or > 80,000 tons total).   But the law made few change to existing standards for smaller structural fill projects. Instead, the 2014 bill put a moratorium on permitting smaller structural fill projects  until August 1, 2015 to allow time for DENR and the Environmental Management Commission to study the standards for those projects.  The law required a report back  to the General Assembly by January 15, 2015.  The EMC discussed an interim report in  January,  but the interim  report didn’t address the adequacy of existing structural fill standards for small projects. The interim report indicated that a final report would be released in April; it doesn’t appear that a final report has been issued yet.  In the absence of a report on the adequacy of the existing structural fill standards and recommendations, House Bill 448 would extend the moratorium on permitting smaller projects until August 1, 2016.

COASTAL ISSUES

House Bill 151 Property Insurance Ratemaking Reform is not strictly speaking an environmental bill, but deals with use of models projecting catastrophic losses as a result of a hurricane or other natural disaster in setting property insurance rates. The bill would continue to allow use of models, but would require the results of more than one model to support a property insurance rate change.  The bill is interesting given the longstanding tension between the economic benefits of coastal development and the externalized costs of building in natural hazard areas.

House Bill 302 Strengthen Oyster Industry  requires the Division of Marine Fisheries to study the state’s shellfish lease and franchise programs and make recommendations for changes necessary to increase shellfish  aquaculture on the North Carolina coast. The bill also expands on existing law requiring DMF to plan and construct  oyster sanctuaries in the  Albemarle and Pamlico Sounds; sets new civil penalties for interference with oyster cultivation; and makes other changes designed to increase oyster production. State funding for creation of oyster habitat has seen a steep decline in recent years; some additional resources will likely be needed to make the oyster sanctuary program a reality.

House Bill 346 Counties/Public Trust Areas extends to counties the  authority to enforce local ordinances in public trust areas and particularly on the state’s ocean beaches.  Municipalities already have this authority.

CONTAMINATED SITES

Senate Bill 301 DOT/Purchase of Contaminated Land would exempt the N.C. Department of Transportation from a law enacted in 2013 that  effectively prohibited state agencies from purchasing property with environmental contamination.  As noted in a earlier post about the 2013 law,  the General Assembly may not have realized the far-reaching effects.   Environmental contamination is widespread and state policies allowing polluters to do limited, “risk-based” remediation of groundwater contamination mean the contamination will persist well into the future. The 2013 law exempted the UNC system campuses from the restriction; NCDOT has asked for the same exemption — presumably because the law makes acquisition of property for highway construction more difficult.

INFRASTRUCTURE

Senate Bill 397 Open and Fair Competition Water and Wastewater would prevent a state or local government from “preferring” one type of piping material  for use in a  water, sewer or stormwater infrastructure project receiving state funds.  I don’t know the story behind the bill,  but usually legislation attempting to  change a state agency’s policy about  use of a particular product or system has been introduced in response to complaints by  a  vendor.

RENEWABLE ENERGY

The General Assembly’s internal debate over renewable energy development continues. In 2013,  the Republican majority in the General Assembly split over attempts to repeal both the Renewable Energy Portfolio Standard (REPS) and the state’s tax credit for investment in renewable energy projects. In the end, a bipartisan majority declined to repeal the incentives for renewable energy development — in large part, because renewable energy had become one of the bright spots in the state’s economic recovery. See an earlier post on the end of the 2013 fight over the REPS.

This session, one focus is on the scheduled sunset of the renewable energy tax credit on January 1, 2016. There are bills in both the House and the Senate to extend the tax credit;  House Bill 454  extends the tax credit until January 1, 2021 and Senate Bill 329 extends the tax credit to January 1, 2020.  Opponents of the tax credit have introduced a bill, Senate Bill 372, that essentially retains the existing January 1, 2016 sunset,  but provides a “safe harbor” for investors who have made substantial outlays on projects not  in service  by the sunset date. Those taxpayers would have an additional year  (until January 1, 2017) to claim the tax credit.

UPDATE:  House Bill 681 would sunset the REPS requirement early, ending in 2018  with a  standard requiring  6% of retail sales of electricity to be generated from renewable sources. The current law requires that  electric public utilities generate 12.5% of retail sales from renewable energy source by 2021 and thereafter.

Fighting for Control of Environmental Policy

April 8, 2015.   In  North Carolina, most  environmental regulations  are adopted by commissions; the  members serve on a voluntary basis and receive only travel expenses and a minimal  per diem. Serving on a commission is like jury duty — for four years and with homework.   Of the major environmental commissions, the  Environmental Management Commission (EMC) adopts air quality, water quality, solid waste and hazardous waste regulations;  the  Coastal Resources Commission regulates coastal development;  and the Mining and Energy Commission regulates mining and onshore energy exploration and development.  The Department of Environment and Natural Resources (DENR)  provides staff support to the commissions,  but the commissions act independently  in adopting environmental rules.  DENR itself has very limited rulemaking authority.

The Governor and  legislative leaders  are currently battling for control of the commissions.  For  decades,  laws creating boards and commissions either gave the Governor exclusive  power to appoint the members  or gave  the Governor a majority of appointments and divided remaining appointments between the state House and Senate.  Since  2010,  the General Assembly has moved to increase legislative influence over the  commissions.  In the last three years, several laws creating new commissions have given the legislature a majority of the appointments.    Reflecting both legislative interest and emerging issues,  the new environment commissions have responsibilities at the crossroads of environmental regulation and energy development.

In 2012, the General Assembly created the Mining and Energy Commission to develop hydraulic fracturing rules. The commission  has eight legislative appointees, three ex officio members (who serve by virtue of holding a specific position — such as the chair of  N.C. State University’s Minerals Research Laboratory Advisory Committee) and only four  Governor’s appointees.  In 2014, the General Assembly continued the practice in creating  the Coal Ash Management Commission to address coal ash contamination;  an Oil and Gas Commission to regulate onshore and offshore energy production;  and a newly constituted Mining Commission.    All three of the new commissions are dominated by legislative appointees.

Late last year, Republican Governor Pat McCrory  filed suit to challenge the constitutionality of provisions in the Coal Ash Management Act of 2014  (creating the Coal Ash Management Commission) and the Energy Modernization Act of 2014  (creating  the  Oil and Gas Commission and Mining Commission). Two former governors, Republican Jim Martin and Democrat Jim Hunt, joined as plaintiffs. In part, the case challenged the  legislature’s authority to appoint a majority of the members serving on executive branch commissions as an unconstitutional  violation of separation of powers. The  lawsuit also raised some lesser separation of powers issues that I won’t go into here.

On March 16, 2015,  a special three-judge panel of Superior Court judges ruled in the governors’ favor in a far-reaching decision that has implications for all of the  commissions involved in environmental policy.   A copy of the court’s order in McCrory v. Berger can be found  here.  Several things to note about the decision:

1. Although the  lawsuit challenged the constitutionality of legislators appointing a majority of the members of a commission with administrative responsibilities, the decision goes further and concludes that it is unconstitutional for the General Assembly to appoint any members of a  commission that exercises “executive” authority.

2. The decision has broader implications than even the judges recognized.   First,  the judges assumed that the Governor appointed all  EMC  members until 2013;  in reality,   the legislature had  appointed at least one-third of the EMC members for decades.  The judges also mistakenly concluded that authority to regulate energy development and mining had rested entirely in the Governor’s appointees to the old Mining Commission and DENR officials  until 2014.   In fact, a 2012 law gave most regulatory authority over onshore energy development and mining to a Mining and Energy Commission also composed largely of legislative appointees.  Those errors caused the judges to mistakenly conclude  that appointees of the Governor  controlled implementation of laws  governing coal ash disposal, energy exploration and development,  and mining until very recently.

The judges’ misunderstanding of the  reality  before  2013-2014 suggests  they may not have fully appreciated the impact of their decision. The practice of making legislative  appointments to the environment commissions has been  longstanding and well-entrenched. Calling into question the constitutionality of commissions with legislative appointees has implications far beyond three commissions too recently created to have taken any significant action.  Which leads to the next problem–

3. The judges did not discuss how the ruling might affect the validity of actions taken by an unconstitutionally appointed commission.  Of the three commissions directly at issue in  the case, two (the Oil and Gas Commission and the new Mining Commission)  do not officially come into being until July 1 2015.  The Coal Ash Management Commission began meeting in  2014, but has not taken any action beyond submitting preliminary reports to the General Assembly.  But a number of other commissions with legislative appointees have made significant regulatory decisions for years.

In January,  Southern Environmental Law Center filed a  lawsuit on behalf of the Haw River Assembly and an individual Lee County property owner separately  challenging  the constitutionality of the Mining and Energy Commission on separation of powers grounds. The lawsuit  explicitly asked  the court to void hydraulic fracturing rules adopted by the MEC based on the constitutional violation. That case is still pending. The EMC, which has had legislatively appointed members for decades,  has been responsible for the entire body of state air quality and water quality rules.

One note– When the N.C. Supreme Court decided in Wallace v. Bone (1982) that the N.C. Constitution did not allow sitting legislators to also  serve  on the Environmental Management Commission, the court did not void EMC actions in which legislative members had participated.  There is probably an inverse relationship between the number of past actions potentially affected and the likelihood that a court will void past actions based on a separation of powers violation.

4. The most immediate impact of the ruling may be on implementation of the Coal Ash Management Act. The General Assembly gave the Coal Ash Management Commission the power to make critical decisions about closure of coal ash impoundments. Under the law, the commission –rather than DENR — will make final decisions prioritizing  coal ash impoundments for closure and approving closure plans. Those decisions will affect both the pace of closure and the environmental impacts. Because of the  ruling in McCrory v. Berger, the Coal Ash Management Commission canceled a planned meeting for March and finds itself in  limbo.

The next critical point in implementation of the Coal Ash Management Act  will come in early 2016 when the Coal Ash Management Commission should  receive DENR’s recommendations on prioritizing coal ash impoundments for closure.   Timelines in the law anticipate a final decision by the commission within 60 days after receiving the DENR recommendations. It isn’t clear that the legal issues  surrounding the commission will be resolved by then. One immediate question  will be  how to keep moving forward on implementation of the Coal Ash Management Act  until those issues have been settled.

Next steps — Legislative leaders have appealed the decision in McCrory v. Berger to  the N.C. Court of Appeals.

Regulatory Reform 2015 — The Senate Bill

March 26, 2015. The Senate has introduced the first regulatory reform bill of the 2015 session – an annual rite of spring. Senate Bill 453 includes a number of environmental provisions. The most significant:

Another attempt to  create an  environmental audit privilege and immunity for violations reported as a result of an audit.  The audit and self-reporting provisions in the bill appear to be identical to those proposed by the Senate in  2014, but not included in the final  Regulatory Reform Act of 2014. See an earlier  post  about the 2014 regulatory reform bill for a description of the environmental audit/self reporting provisions making a reappearance in 2015.

Sec. 4.3 of the bill  eliminates several environmental reporting requirements.  Most of the reports to be eliminated  have become unnecessary, but the bill  also proposes to  repeal  the requirement for DENR to report  on  environmental  permit processing times.  The report on One-Stop and Express Permitting, under G.S.  143B-279.15, has  allowed legislators to track permitting times in DENR programs that issue development permits.  Given the legislature’s strong interest in environmental permitting, the report  seems an odd candidate for repeal.

Sec. 4.4   would allow more construction of sandbag seawalls and revetments on the oceanfront.  Under coastal management rules,  sandbags can only be used if the building on the property is actually threatened by erosion and the sandbags must be installed within 20 feet of the building’s foundation. The bill removes both limitations. It would allow an oceanfront property owner to build a sandbag seawall  if there is a similar sandbag structure on the adjoining lot even if the  building  on their own lot is not threatened by erosion. The bill also  allows the  sandbags to be installed further seaward of the building foundation without putting a  limit on how far seaward the sandbags can be placed.

Sec. 4.6, 4.7 and 4.8 eliminate reports on electronics recycling;  Sec. 4.9 calls for a study of the electronics recycling program.   By eliminating the reporting requirements, the state would lose information on the volume of electronics being  recycled annually. The study language suggests some legislative concern about the current electronics recycling program without identifying any specific problem.

Sec. 4.12  expands liability protection for the owners of contaminated property in a way that may shield some polluters from cleanup responsibility. The bill amends the  state Brownfields redevelopment  law  (which provides incentives  for redevelopment of  contaminated property) to make “brown fields redeveloper” in state law mean the same thing as “bona fide prospective purchaser” under a federal law regulating hazardous substances.  The Senate bill  would also repeal existing language in state law that does not allow  a person  who caused or contributed to  the contamination to receive liability protection and other benefits under the state Brownfields Act.

The  changes  could be a problem because the definition of “bona fide prospective purchaser” in the federal  law (the Comprehensive Environmental Response, Compensation  and Liability Act  or “CERCLA”)   has been defined to mean a property owner who  innocently purchased property contaminated by a “hazardous substance”.  Under  CERCLA, “hazardous substance”  refers to a specific list of chemicals associated with  acute or chronic health effects;  simple possession of  a threshold quantity of one of the listed chemicals  may trigger a federal reporting requirement.  The CERCLA “hazardous substance” list is not intended to cover all  pollutants and contaminants that may  cause harm  if released to the environment.  For example, petroleum products are excluded from the federal definition of a “hazardous substance” although  gasoline  leaked into soil and groundwater presents both a health and environmental risk.

The Senate Bill 453 change could  allow  a property  owner  who actually caused  environmental contamination to get  liability protection and other benefits under the state Brownfields law  (such as reduced property taxes) just by showing the contamination was not caused by a  hazardous substance regulated under CERCLA. That   could seriously undermine state remediation programs and give undeserved benefits to people who actually caused environmental contamination and should have an obligation to clean it up.

Note: The change may have implications for coal ash sites, although that seems to be a more complicated question. Some of the constituents of coal ash are listed “hazardous substances” under federal law. But  the U.S. Environmental Protection Agency’s  decision to regulate coal ash as a solid waste rather than a hazardous waste may take coal ash itself out of the category of “hazardous substances”.  Although it is not entirely clear, it is possible that the Senate Bill  453 change would allow a utility to take advantage of the state Brownfields  law to get  liability protection  on a coal ash site.

A Citizen’s Guide to Climate Change, Part II: The “Greenhouse” Effect

February 16, 2015.  At its most basic, the theory that human activity can affect the climate has  two parts: 1. Changes in  Earth’s atmosphere can affect surface temperature;  and 2. Human activity can alter the makeup of Earth’s atmosphere. This post provides an overview of the science behind both principles, relying on scientific reports and a number of  sources that collect and report data on the link between atmospheric gasses and climate.  This post  focuses on carbon dioxide (CO2) as one of the most significant contributors to warming; other “greenhouse” gasses include methane, nitrous oxide and fluorinated gasses.

How the atmosphere affects temperature; the history of the  “greenhouse effect”.  The scientific  theory  that Earth’s atmosphere affects  the planet’s surface temperature — the “greenhouse effect” — goes back nearly 200 years. As early as the 1820s,   French scientist Jean Baptiste Fourier  theorized that gasses surrounding the Earth retained heat,  allowing the planet to warm more than the sun’s influence alone could explain. British physicist  John Tyndall did some of the earliest experimental work to prove the relationship,  demonstrating that water vapor and carbon dioxide  hold more heat than oxygen and nitrogen.  In 1861, Tyndall published the results  in a  paper titled On the Absorption and Radiation of Heat by Gases and Vapours, and on the Physical Connexion of Radiation, Absorption, and Conduction.  In 1896, Swedish  scientist  Svante Arrhenius published  a  paper  that for the first time quantified the  relationship between CO2  in the atmosphere and  Earth’s surface temperature.

Tabletop experiments:  A number of educational and scientific websites provide instructions on how to do your own table-top experiment demonstrating how changes in the atmosphere affect temperature. For a demonstration, see this BBC video.

Sources:  Discovery of Global Warming  website (maintained by Spencer Weart  and hosted by the American Institute of Physics); the National Aeronautic and Space Administration (NASA); the National Oceanic and Atmospheric Administration (NOAA);  the University of York’s Tyndall correspondence website;  and the Tyndall Centre  for Climate  Change Research. For an overview of the history of climate science carried forward through the 20th century, see a post by John Mason on the Skeptical Science website.

Trends in Atmospheric CO2. Scientists have been taking monthly measurements of  CO2 at the Mauna Loa Observatory  (Hawaii) since 1958. The chart below shows the trend line.

co2_data_mlo

 

The red line plots the CO2  measurements; the black line represents the seasonally adjusted CO2 level. In 2014, CO2 levels measured at Mauna Loa reached 400 parts per million for the first time since modern record-keeping began.   Research indicates that current CO2  levels are the highest in  hundreds of thousands of years. Or as science writer Andrew Freedman put it more colorfully in an article for Climate Central:

The last time there was this much carbon dioxide (CO2) in the Earth’s atmosphere, modern humans didn’t exist. Megatoothed sharks prowled the oceans, the world’s seas were up to 100 feet higher than they are today, and the global average surface temperature was up to 11°F warmer than it is now.

Englishman seated on jaw of megatooth shark.

Englishman seated on jaw of megatooth shark

Most of the increase in atmospheric CO2 has occurred since the beginning of the Industrial Revolution (in the late 1700s) when atmospheric levels were around 280 parts per million and the rate of change has increased in the last 50 years. The upward curve in CO2 looks very similar to the upward curve in mean global temperature since 1960 shown in the previous post:

Mean Surface Temps

 

Questions about human activity and  increased CO2 levels

Haven’t CO2 levels on Earth been higher in the past? Yes, but the highest levels occurred around 500 million years ago when Earth was a very different place.  The last time CO2 levels were similar to those being measured now was about 7,000 years ago. CO2 levels fell over  several intervening  centuries; then the curve  reversed  and the rate of increase accelerated  within the last 50 years.

How do we know human activity has caused the recent increase in CO2? Scientists have looked at the relationship in several different ways. Two indications of human influence:

1. Mathematical accounting for the conversion of carbon to CO2.   CO2 comes from both natural processes and human activity.  People convert carbon to CO2 by burning fossil fuels and by clearing and burning forested areas.    Scientists can  calculate both the amount of CO2 produced by human activity (which has greatly increased in the last 150 years) and the capacity of oceans and forests to absorb CO2.  Excess CO2  — the difference between the amount produced and the amount taken up by  the oceans or by plant life — goes into the atmosphere. Atmospheric CO2  significantly increased  as CO2 emissions from industry and energy generation spiked,  indicating a large human  contribution. Human  activity  also  overwhelms   CO2  increases associated with  natural sources like volcanic eruptions.

2. Studying the atomic “fingerprints” of atmospheric CO2. Not all carbon atoms are created the same. Elements like carbon can occur in different forms (called “isotopes”) based on the number of neutrons in each atom. Carbon occurs as three isotopes — 14C (radioactive and least common), 13C (about 1% of carbon isotopes) and 12C (the most common).  Fossil fuels like oil and coal contain  no 14C because the radioactivity has long since  decayed.  Both plants and fossil fuels  tend to have a low ratio of 13C to 12C. Scientists have found that the mix of atmospheric CO2 has become “lighter” in the last 150 years. An increase in carbon associated with plant-based fossil fuels seems to  have changed the ratio of “light” carbon to “heavy” carbon in the atmosphere. The change has tracked the significant increases in CO2 emissions from combustion of  fossil fuels for industrial purposes and electricity generation.

What kinds of human activities contribute to atmospheric CO2? Based on reporting of greenhouse gas emissions, the U.S. Environmental Protection Agency has created a chart showing the most significant sources.

gases-co2

Sources:  “How do we know that recent CO2 increases are due to human activities?”, www.realclimate.org, (December 22, 2004); Andrew Freedmen: “The Last Time CO2 was this High,  Humans Didn’t Exist”,  www.climatecentral.org, (May 2, 2013); World Meteorological Organization: 2013 Global Greenhouse Gas Report; NOAA Earth Science Research Laboratory, Global Monitoring Division website; Scripps CO2 Program website; “Sources of Greenhouse Gas Emissions”, U.S Environmental Protection Agency website; NASA:Vital Signs of the Planet: Carbon Dioxide; Caitlyn Kennedy: “Earth’s Hottest Topic is Just Hearing Up”, www.climate.gov (2009).

Note to Readers

February 11, 2015: Links to bill drafts and North Carolina session laws in earlier posts are not working because the North Carolina General Assembly’s primary website (ncleg.net) went down yesterday.  As of 8:00 this morning,  the site is still dark. (According to news reports,  the domain expired and legislative staff are  working to restore the domain.)

In the meantime, much of the content of the ncleg.net website can be accessed at a backup website here. To pull up a specific bill, go to the box on the upper right of the page where there is an option to “Find a bill”.  First, set the date to the appropriate legislative session.  The bill search function defaults to the current session (2015-2016), but you can use the down arrow to  go to an earlier session. Then enter the bill number.

Example: To find the 2014 Coal Ash Management Act, set the session date to 2013-2014 and enter  S 729 as the bill number.

A Citizen’s Guide to Climate Change, Part I: Temperature

January 30,  2015. Controversy over EPA’s proposed carbon reduction rule (see an earlier post)  has again focused attention on the  climate change debate.  This post will look at global  temperature trends as reported by the National Oceanic and Atmospheric Administration (NOAA) and the National Aeronautic and Space Administration (NASA).

The most recent temperature data. In  2014, the average combined land and sea surface temperature on Earth reached the highest level since modern record-keeping began in the 1880s.   The latest temperature data can be found in the National Oceanic and Atmospheric Administration (NOAA)   2014  Global Climate Report here. Similar results reported by  NASA can be found here. Although NOAA and NASA use somewhat different baselines and methods, the two agencies reached very similar results. NASA calculated an increase of 1.4 ° (F) over the historical baseline; NOAA found an increase of 1.24° (F). Both found that higher ocean temperatures made a slightly greater contribution to the total increase than land surface temperatures.

The  chart below has been adapted from a NOAA Chart showing the ten warmest years on record based on the global average temperature. All of those years, with the exception of one, have occurred since 2000.  The third  column shows the increase in temperature by reference to the historical average (1880-2014).

Rank (1=Warmest) Year Increase (Fº)
1  2014  +1.24
2 (Tie) 2010/2005  + 1.17
4 1998  +1.13
5 (Tie) 2013/2003  +1.12
7 2002  +1.10
8 2006  +1.08
9 (Tie) 2009/2007  +1.06

Some temperature fluctuation from year to year can be accounted for by El Nino (warming) and La Nina (cooling) trends in the Pacific Ocean, but the 2014 high occurred under neutral El Nino conditions.  Find the original NOAA chart and other information about NOAA’s  2014 temperature analysis here.

NOAA also provides a bar chart showing the trend in global temperature over the entire period

Comparison to past temperature variation on Earth. Scientists have estimated average global temperature during past warming and cooling  periods based on a variety of natural records — glacial ice, tree rings, geological formations, and fossils. There have been periods in the past when Earth’s average temperature was much higher than it is now.  But once Earth cooled down from a hot rock to  a planet capable of supporting life,  the warming event that followed the last ice age occurred  very slowly.  See NOAA’s  introduction to  climate history here.   The overviews of historical climate studies provided by NOAA and by NASA’s  Climate Observatory  put  context around recent temperature increases:

♦  Earth’s average temperature varies from year to year in response to many influences,  but in recent  decades, the cooler years have represented “noise” in an overall upward trend.

♦ Earth’s climate has been relatively stable for much of the history of human civilization (the past 10,000 years).

♦ The last significant warming period (which  began around 11,000  years ago) led to an increase in the Earth’s average surface temperature of between 7° – 12° F.  That warming occurred very gradually  over a period of about 5,000 years and then another cooling trend began.

♦  The current warming trend began in the 20th century and temperature increases are happening  10  times  times faster than the last  ice age  warming period. (NASA).

For more detail on climate history, both the NASA and NOAA  sites provide links to the scientific studies used as references.

Do these increases in global temperature matter?  An increase of 1.4° F over the average global surface temperature seems — and is —  small, but  even small increases can affect patterns of plant and animal life.  In 2012,  the  U.S. Department of Agriculture released an updated U.S.  plant  hardiness zone map.  The map divides the U.S. into  zones based on the average annual low temperature;  going from north to south, each zone on the map represents  a 10° increase in the average low temperature. By comparison to the 1990 map, the new map shows a half-zone shift (or  5° F) toward the warmer zones. USDA has been careful to say the data sets for the 1990 and 2012 maps differed in a number of ways — the new map reflects data from more  locations and use of more sophisticated technology as well as additional years of data.  But the shifts are consistent with the general trend in global temperature data since the 1980s and suggest that farmers and gardeners  may already be seeing changes affecting plant life.

While a  1.2°- 1.4° increase in the average temperature over 30 years may already be affecting   the environment, concern about rising global temperature really focuses on the future. Two of the greatest concerns:

1. The rapid pace of warming and the unknown stopping point. Earth’s last major ice age warming event took place over a period of 5,000 years and at a time before modern human civilization and reliance on large-scale agricultural production.   Earth’s current  warming  is occurring  at a much faster rate (as much as 10 times faster), increasing the risk that plant and animal life may not be able to adapt quickly enough to changing temperature regimes. While Unites States agriculture has not been harmed by  the  1.2 – 1.4 ° (F) increase in recent decades,  it could be much more difficult to maintain agricultural productivity in the face of continuing, rapid temperature increases.  Other, warmer,  parts of the globe will be much more vulnerable to agricultural disruption because of temperature increases. Temperature increases can also   affect other human food sources like fisheries.

2. The chain-reaction effect of rapid warming on other parts of the human environment. The chain reaction talked about most often:

Higher global temperature ⇒ melting of land ice ⇒more rapidly rising sea levels ⇒ flooding of coastal areas.

The potential for accelerated sea level rise gets attention because of the direct risk to human populations. In 2010, 39%  of the population of the U.S. lived in a shoreline county;  more than half of the population lived within  50  miles of an ocean shoreline. (Source: U.S. census data as reported in NOAA’s State of the Coast Report.)  As a result, accelerated sea level rise could affect some  of the most highly populated areas in the United States.

Note: NASA’s Vital Signs of the Planet website provides visualizations of  changes in the extent of sea ice and land ice.

How reliable is the data?   Temperature records date back to the 1880s and the amount and quality of the data has only gotten better.  NASA describes the records used in the Goddard Institute of Space Sciences temperature calculations this way:

The GISS analysis incorporates surface temperature measurements from 6,300 weather stations, ship- and buoy-based observations of sea surface temperatures, and temperature measurements from Antarctic research stations. This raw data is analyzed using an algorithm that takes into account the varied spacing of temperature stations around the globe and urban heating effects that could skew the calculation. The result is an estimate of the global average temperature difference from a baseline period of 1951 to 1980.

Next: The role of carbon dioxide and other “greenhouse” gasses in raising global temperature.

EPA’s Coal Ash Rule Part II: North Carolina

January 8, 2015.   The  previous post  described the basics of the federal coal ash rule. An earlier post provided an overview of the N.C. Coal Ash Management Act of 2014. The next question:  How will the two work together? Although the EPA rule does not require states to adopt and enforce the minimum federal standards, many states (like North Carolina) already regulate coal ash disposal and a direct conflict with federal rules would be problematic.

Based on  a quick review,   N.C. landfill  standards seem to match up fairly well to the federal standards  for coal ash landfills.  A  few  — such as separation from groundwater (4 ft. under state rules versus 5 ft. under the federal rule) — will need to be amended to meet minimum federal requirements.  N.C. law mandates an end to disposal of coal ash in surface impoundments, so N.C. has no standards for construction of new impoundments comparable to those in the EPA rule. But since states can be  more restrictive,  the federal rule  will not require  a change in state policy on use of surface impoundments for coal ash disposal.  The federal rule will overlap with state law in a few areas related to existing coal ash impoundments, including requirements for inspection and record-keeping; structural integrity standards;  closure;  and post-closure care.

A  detailed side-by-side comparison of state and federal requirements will be needed to identify all of the state standards that may require amendment to be consistent with minimum federal standards. This post will focus on two aspects of the federal rule that could have a significant impact on implementation of the North Carolina law — provisions on beneficial use of coal ash  and  timelines for closure of existing impoundments. This analysis is based on the prepublication version of the rule.   If EPA makes  wording changes before publication of the final rule in the Federal Register to correct errors or clarify ambiguous language,  those editorial changes may affect interpretation of the rule.

BENEFICIAL USE. The N.C. Coal Ash Management Act of 2014  (Session Law 2014-122) allows  use of coal ash in structural fill, including reclamation of  surface mines. The law also sets strict standards for large structural fill projects (defined as those using more than 8,000 tons per acre or more than 80,000 tons total of unencapsulated coal ash). The N.C. law  put a one year moratorium on approval of smaller  structural fills to study the adequacy of existing rules for those projects.

The EPA rule  seems to disfavor structural fill projects, defining “beneficial use” to exclude  structural fill/landscape projects using 12,400 tons or more of unencapsulated coal ash unless: 1. the project involves no more risk of release to the environment than use of  conventional  material;  or 2. releases to the environment will meet all environmental and public health benchmarks. The rule makes an exception  for highway projects, deferring to  the Federal Highway Administration’s technical standards for use of coal ash in road projects.  Setting  coal mining to the side (to be regulated under a different law), the EPA rule also defines “beneficial use” of coal ash to exclude disposal in  “sand mines, gravel pits and other quarries”. The federal rule treats placement of coal ash in a surface mine as  disposal rather than beneficial use and requires those projects to meet coal ash landfill standards.

Implications for North Carolina:

♦  The federal requirement that a project using 12,400 total tons or more of unencapsulated coal ash  demonstrate  no greater risk of release to the environment than use of other fill material will add a step not currently required  to permit a  structural fill project under state law.

♦ The  12,400 ton  threshold  potentially affects some projects classified as  small structural fills under the N.C. law (< 8,000 tons per acre or < 80,000 tons total).  Although  Session Law 2014-122   requires  a study of the standards  for  small structural fill projects, the law still allows those projects to be “deemed permitted” based on meeting those standards.  To be “deemed permitted”,  the developer must  submit certain information to DENR in advance but the project does not require an individual permit. The study required under Session Law 2014-122  will now need to consider how the new federal requirement affects both the approval process and the standards for large and small structural fill projects.

♦ New N.C.  standards for large structural fill projects  are very similar to the EPA minimum standards for  coal ash landfills,  although the EPA rule has more stringent standards in a few respects — such as the minimum separation from groundwater.  N.C.’s closure/post-closure requirements for large structural fills also closely match the federal requirements for closure/post-closure care at coal ash landfills. A more detailed comparison will be needed, but  it appears that N.C. would need to make only a few changes in state standards for large structural fill projects to make those standards consistent with the federal minimum  standards for coal ash landfills.

♦ It isn’t immediately clear (at least to me)  whether federal treatment of many structural fills  as disposal projects  — landfills by any other name — will have additional implications for developers of structural fill projects and subsequent purchasers of the property for redevelopment.

♦  It appears that disposal of coal ash in surface mines (other than coal mines) will  be required to  meet federal coal ash landfill standards without regard to the amount of coal ash used.

DEADLINES FOR IMPOUNDMENT CLOSURE.  EPA timelines for impoundment closure run from  the effective date of the EPA rule, which will be six months after publication of the final rule in the Federal Register.  To compare state and federal timelines,  this post assumes the federal rule will become effective on August 1, 2015 (which requires publication of the rule by January 31, 2015). The actual publication date  could move the effective date — and the compliance deadlines — forward or backward. The EPA rule also allows for some exceptions and extensions of time to the timelines. The timelines below are intended  to illustrate how the federal rule compares to the N.C. impoundment closure schedule; the timelines cannot be used to predict the closure date for any individual impoundment.

The North Carolina Coal Ash Management Act requires closure of all active and inactive coal ash ponds by December 31 2029, but prioritizes closure based on risk. The  North Carolina  law lists factors to be used in prioritizing impoundments for closure, but  generally leaves the decision on risk classification to the Department of Environment and Natural Resources (DENR) and the Coal Ash Management Commission. (The law itself designates four impoundments as high risk.)

N.C. Impoundment Closure Dates

CLOSURE DEADLINE RISK CATEGORY
December 31, 2018 High Risk
December 31, 2024 Intermediate Risk
December 31, 2029 Low Risk

While the state law provides a straightforward timeline for  closure of each category of impoundments,  it may be a  year before all of the impoundments in the state have been assigned  a risk category.

The EPA rule requires closure of existing impoundments based on specific conditions. The rule gives first priority for closure to “inactive impoundments” and then to unlined impoundments that have caused groundwater violations and active impoundments that do not meet new location and structural integrity standards.  Inactive impoundments have a hard closure deadline.  The other two deadlines follow from  assessing conditions at active impoundments.

EPA Impoundment Closure Dates

CLOSURE DEADLINE BASIS FOR CLOSURE
January 31, 2018 Inactive ImpoundmentsN1
August 1, 2020 or later (based on sampling) Leaking Unlined ImpoundmentsN2
August 1, 2020-January 31, 2024 Nonconforming Active ImpoundmentsN3

N1: “Inactive impoundment” includes any impoundment that stops receiving coal ash  before the federal rule goes into effect ( six months after publication of the final rule).  Inactive impoundments must be closed within three years; otherwise the utility will have to bring the impoundment into compliance with location and structural integrity standards for  existing impoundments and install a groundwater monitoring system.  But see the previous post for  more  on  application of the federal rule to inactive impoundments located at closed  electric generation facilities.

N2: The rule gives impoundment owners 18 months to determine whether an existing impoundment has a liner meeting standards in the rule and up to two years to install a groundwater monitoring system and collect background samples. (The two time periods run concurrently.)  Within six months after detecting a groundwater standard violation for a listed contaminant, an unlined impoundment must stop receiving coal ash and begin closure.  The listed contaminants: antimony, arsenic, barium, beryllium, cadmium, chromium, fluoride, lead, mercury, molybdenum, selenium, thallium, cobalt, lithium, and radium 226 and 228 combined.  Closure must generally be  completed within 5 years.

N.C.’s water quality program began requiring groundwater monitoring around coal ash ponds several years ago and groundwater standard  violations  have already been documented at a number of  impoundments.  The date in the chart reflects the earliest possible 5-year closure deadline based on  the existence of  monitoring data  showing  an  exceedence of a groundwater standard  at the time the federal rule goes into effect. For unlined impoundments that do not already have a groundwater monitoring system, the earliest closure deadline  could be as late as   January 31, 2023. Since groundwater monitoring will be ongoing, it is also possible for closure to be triggered by a groundwater exceedence detected later.

N3:  The federal rule allows up to three years from the effective date of the rule for a utility to demonstrate compliance with new standards for existing, active impoundments. An impoundment  found not to meet the standards must stop receiving coal ash within six months and start the closure process. The 5-year closure deadline  runs from the date the utility determines that an existing impoundment does not meet the  standards. So the earliest closure deadline (for impoundments determined to be nonconforming at the time the federal rule goes into effect) would be  between August 1, 2020 and January 31, 2021.   The latest possible closure deadline  (for a utility that takes the full three years to assess compliance with the standards) would be between  August 1, 2023 and  January 31, 2024. The rule allows for an extension of time under specific circumstances.

 Several things to note:

♦  The federal rule could push a significant number of N.C. impoundments to closure within the next 3-9 years  based on the number of inactive impoundments and  an additional number  of active impoundments that may not meet  federal  location/structural integrity standards or have groundwater standard violations for listed contaminants. By comparison, the N.C. rule would allow 10-15 years for closure of all but the most high risk impoundments.

♦  One way  to  reconcile the state’s  risk-based priorities for closure with the federal rule  would be to base the state’s high risk classification on factors  (such as groundwater contamination) that will drive early closure of existing impoundments under the federal rule. Since DENR has not yet developed guidelines for risk classification of impoundments, there will be an opportunity to take the federal rule into consideration.

♦  The EPA rule requires final closure of  inactive impoundments within three years. As of spring 2014, Duke Energy identified 16 of the 32 impoundments in  North Carolina as inactive.   Twelve of the sixteen are  located at the site of a closed  coal-fired  power plant.  Given the complexity  of the federal rule as applied to inactive impoundments at closed generating plants — and some degree of confusion within the federal rule itself (see the previous post)  — it isn’t immediately clear how many of North Carolina’s inactive impoundments will be affected by the early closure deadline. Depending on the final interpretation of the federal rule, a significant number of N.C. impoundments could be required to complete closure within the next three years.

CONCLUSION. In a number of ways,  North Carolina has a stronger overall framework for regulating coal ash disposal than the federal rule provides. But there are a few areas where North Carolina will need to  decide how to reconcile state and federal requirements to avoid  conflicts. Otherwise, electric utilities could be in compliance with the North Carolina program but still vulnerable to citizen suits for enforcement of the federal requirements.

First Meeting of Coal Ash Management Commission

November 10, 2014. The N.C. Coal Ash Management Commission will meet for the first time at 9:00 a.m. on Friday, November 14 at the Friday Center in Chapel Hill.  The agenda for the first meeting will be orientation for the new commissioners, including presentations on open meetings  and public records law;  the Coal Ash Management Act (Session Law 2014-122);  and   issues surrounding coal ash disposal. You can find a copy of the meeting agenda on the State Government Radio website here.

The Coal Ash Management Act gave the commission two tasks to complete in the next year:

1. A report to the legislature’s Environmental Review Commission (ERC) on ways to “promote, incentivize and prioritize  beneficial use of coal combustion products”  by  December 1, 2014.   (Expect a request for additional time.)

2.  By October 1, 2015, the commission must report on the potential for closing some coal ash ponds with no further action or natural attenuation. Natural attenuation relies on long-term, natural degradation of  contaminants rather than active  remediation.  It isn’t clear how legislators plan to use the report.  DENR’s Division of Water Resources  has responsibility for implementing  existing state groundwater protection rules adopted by the Environmental Management Commission. The groundwater remediation rule, 15A NCAC 2L.0106,  already allows DENR to approve natural attenuation of groundwater if other remediation goals can be met. Those  goals include:  removal, treatment or  control of  the original contamination source; elimination of  any continuing source of contamination (including highly contaminated soils); prevention of fire, explosion, and noxious fumes; and containment of the contamination to prevent  migration and violation of groundwater standards beyond a compliance boundary. The Coal Ash Management Act  specifically referenced the  existing groundwater remediation standards in  requirements for assessment and remediation of the coal ash impoundments.

The commission may spend some part of the first year looking toward  early 2016 when the commission will need to take final action on  prioritization of all of the coal ash impoundments as high, intermediate or low risk. This may be the commission’s most important responsibility, since the Coal Ash Management Act links the  risk classification  to specific closure methods. Coal ash impoundments classified as high or intermediate risk must be closed by permanently removing the coal ash or by temporarily moving the ash to allow the impoundment to be converted to a lined industrial landfill. But impoundments classified as low risk can be closed by capping the coal ash  in place — as long as the closure plan includes  measures that will prevent exceedence of groundwater standards beyond the compliance boundary after closure.

The  stakes could be high. Duke Energy has  advocated for wide use of capping in place  because of the lower cost.  See an earlier post  for a link to a Duke Energy presentation to legislators on the comparative costs of removing the coal ash  versus capping the ash in place.  But  information already available suggests that most of the coal ash  impoundments have multiple risk factors, including existing groundwater contamination.

The law requires DENR to  propose a  risk classification for each impoundment by December 31, 2015, but gives the commission final approval authority.  The Coal Ash Management Act  lists  a number of  factors to consider in prioritizing impoundments, but does not provide guidance on how to translate the factors into high, intermediate and low risk categories.   Specific criteria for sorting the impoundments into risk categories would make prioritization more consistent and predictable, but development of those criteria would likely require either additional legislation or rule adoption. (The Environmental Management Commission has authority to adopt rules to implement the Coal Ash Management Act.)  Otherwise, the Coal Ash Management Commission will be left to figure out in the next year how to make those prioritization decisions.