Category Archives: Waste

The Governor’s Coal Ash Bill

On Wednesday, April 16, Governor Pat McCrory surprised everyone (including his fellow Republicans in the state legislature) by releasing a draft bill on coal ash. The “Comprehensive Coal Ash Action Plan” has created a buzz in the environmental community. Southern Environmental Law Center (SELC) criticized the draft bill as bearing too close a resemblance to the now-abandoned DENR settlement with Duke Energy. Other environmental organizations have been less critical, acknowledging the bill makes steps in the right direction without quite delivering the comprehensive coal ash plan needed. Highlights below.

What the Bill Does:

♦ Clarifies state law to require immediate notice to DENR of any wastewater spill that reaches surface waters and shortens the time for public notice of a wastewater spill from 48 hours to 24 hours.

♦ Requires assessment of contamination at all of the Duke Energy ash impoundments, setting timelines that could result in completion of groundwater assessment and the beginning of remediation within one year after adoption of the bill. The bill sets a hard deadline of 45 days from the effective date of the law for Duke to submit groundwater assessment plans to DENR for all 14 facilities. Duke Energy would be required to begin assessment as soon as DENR approves the plans. The overall assessment/remediation timeline could slip, however; DENR would have the discretion to extend the time allowed for completion of the final assessment report and submission of a proposed corrective action plan to address groundwater standard violations. Once a corrective action plan has been approved, the bill sets another hard deadline of 30 days for Duke to begin implementing the plan.

♦ Requires Duke to map all public and private water supply sources in an area within ½ mile of the compliance boundary around each ash impoundment within 60 days after the bill becomes law. Based on the survey, DENR could require Duke Energy to sample any water supply source at risk of contamination. (Sampling may not be needed for water supplies upstream or up-gradient of the ash impoundment.) The bill does not put a timeline on completion of any sampling required by DENR. The bill also requires Duke to provide an alternative water source if testing shows well contamination exceeding groundwater standards.

♦ Requires Duke Energy to identify and eliminate unpermitted wastewater discharges from the ash impoundments. Duke must submit topographic maps of engineered outfalls draining the toe of the ash impoundments (“toe drains”) within 90 days after the bill becomes law along with a schedule for water quality sampling of the outfall. Similar maps showing the location of seeps and drains that do not discharge to an engineered channel must be submitted within 180 days after the bill becomes law. The bill requires Duke Energy to eliminate any unpermitted discharges to surface waters within 120 days after receiving notice from DENR. The unpermitted discharge can be eliminated by stopping the discharge; routing it to a permitted outfall; using best management practices (BMPs); or applying for an NPDES permit for the discharge.

Note: BMPs for operation of ash impoundments do not currently exist; the bill actually directs Duke Energy to submit a set of best management practices designed to prevent unpermitted discharges from ash ponds to surface waters within 180 days after the bill becomes law. It also isn’t clear that BMPs can bring the ash impoundments into compliance with the Clean Water Act. SELC has said that EPA objected to similar language in the draft consent agreement proposed by DENR to resolve enforcement actions related to the Asheville and River Bend ash impoundments.

♦ Creates a process for identifying ash pond discharges that have reached surface waters and caused water quality standard violations. The bill requires Duke Energy to develop a plan for upstream and downstream water quality sampling subject to DENR approval. The timeline in the bill (180 days to submit a plan – 30 days for DENR review – 180 days for Duke Energy to carry out the approved sampling plan) means the outcome of surface water sampling may not be known for up to a year after the bill becomes law.

♦ Requires Duke Energy to develop an inspection plan to identify new seeps and submit the plan to DENR within 30 days after the bill becomes law.

♦ Sets new inspection standards for coal ash impoundments. The bill would require Duke Energy to inspect the impoundments weekly and after storms. It would also require Duke Energy to contract for annual inspection by an independent professional engineer.

♦ Puts a temporary “moratorium” on use of coal combustion products as structural fill. The “moratorium” has two significant exceptions — 1. use of the material as structural fill under an airport runway or road project built by a public entity; and 2. use of up to 5,000 cubic yards as structural fill on any public or private construction site. Since the bill does not lead into any review of the current standards for using coal ash as structural fill, the provision seems to function more as a cap on the size of structural fill projects than a moratorium.

♦ The bill requires DENR to “establish the priority for closure of all active and inactive investor-owned coal combustion products impoundments”. The language appears to call for closure of all impoundments in some unspecified order of priority. The bill provides no guidance on how DENR should set priorities for closure although a separate provision in the bill identifies four specific facilities (Riverbend, Asheville, Sutton and Dan River) to be given first order of priority. At a minimum, legislation will need to identify factors for DENR to consider in prioritizing other sites for closure.

The bill allows the alternatives of: 1. “closure in place” (installing an engineered cover system over the coal ash on site); 2. “clean closure” by removing all ash from the site; 3. consolidation of coal ash on the site, reducing the overall footprint of the waste disposal area before installing an engineered cover; and 4. other alternatives that may be equally effective in protecting water quality. The bill sets only one standard for selection of the closure method: the closure method must result in “restoration to the level of the groundwater standards will be obtained as is economically and technically feasible”. (Awkward phrasing, but it seems to mean that the closure method should allow contaminated groundwater to be restored to meet state groundwater standards to the extent that is economically and technically feasible.) The bill does not define “economically feasible” — something other environmental laws have found to be necessary in similar circumstances. It also sets no standards for implementation of the different closure methods –such as dewatering of impoundments that will be closed in place.

The bill requires a post-closure plan, including groundwater monitoring, covering a period of at least 30 years.

♦ Sets detailed standards for “decommissioning” an ash impoundment under the state’s Dam Safety Act.

What the Bill Does Not Do:

♦ Set standards for future disposal of coal ash. The bill puts coal ash removed from ash impoundments under the state’s solid waste laws by amending a definition in the Solid Waste Act. The state’s solid waste laws do not allow disposal of solid waste in open impoundments and the bill as a whole implies a ban on future disposal of coal ash in open impoundments, but never expressly prohibits it. A clear statement about future coal ash disposal will be important. Beyond that, the bill is silent on standards for landfill disposal of coal ash. Current laws give the investor-owned utilities exceptions from a number of standards that apply to other industrial landfills — including significantly smaller setbacks from surface waters, wetlands and property lines. If those laws remain unchanged, Duke Energy could create coal ash landfills located 50 feet from surface waters.

♦ Modify structural fill standards. The “temporary moratorium” on use of structural fill really just limits the amount of coal ash that can be used as structural fill on a private construction project. Otherwise, the standards remain unchanged; structural fill sites do not require liners and have only minimal setbacks from surface waters, wells and property lines.

♦ Provide sufficient guiding standards for implementation. As noted above, the bill provides no standards for prioritizing closure of existing ash impoundments or for implementation of the different closure methods. The bill sets only a single, broad criteria for selection of the closure method. More detail will be needed to make the bill workable.

Of Leaking Garbage Trucks and the N.C. Constitution

April 11, 2014. One of the draft bills the legislature’s Environmental Review Commission approved for introduction in the 2014 session would “terminate” Governor McCrory’s Executive Order 22. ERC co-chair Ruth Samuelson indicated the bill could also become a vehicle for terminating outdated or unnecessary executive orders issued by previous governors. So the ERC bill raises two interesting questions:

1. What is the controversy behind Executive Order 22?

2. Does the General Assembly have the authority to “terminate” an executive order?

The Controversy. Governor McCrory issued Executive Order 22 in response to one section of the Regulatory Reform Act of 2013 (S.L. 2013-413). Section 59.2 changed a longstanding state rule that vehicles hauling solid waste must be leak proof and substituted a standard that the vehicles must be “designed and maintained to be leak resistant”. The legislation also amended a law enforced by the state Highway Patrol. As amended in 2013, G.S. 20-116(g)(1) now reads:

“No vehicle shall be driven or moved on any highway unless the vehicle is constructed and loaded to prevent any of its load from falling, blowing, dropping, sifting, leaking, or otherwise escaping therefrom, and the vehicle shall not contain any holes, cracks, or openings through which any of its load may escape…. For purposes of this subsection, the terms “load” and “leaking” do not include water accumulated from precipitation.”

Executive Order 22 directs the State Highway Patrol to continue to enforce the law against leakage from vehicles hauling solid waste, but also directs officers to take weather conditions into consideration. The controversy likely stems from a sentence in the executive order that directs Highway Patrol officers to issue a citation to the driver if rainfall, snowmelt or other precipitation leaking from the vehicle passed through the solid waste. In solid waste terms, liquid — including precipitation — that has percolated through solid waste becomes leachate that must be managed because of contaminants picked up from the waste material.

Executive Order 22 prompted a backlash from waste management companies that supported the 2013 legislation. In the ERC meeting, the executive order termination bill was presented as a necessary correction to an unlawful executive action. Critics of the executive order clearly believe the 2013 law prevents enforcement of G.S. 20-116(g)(1) if the leaking liquid began life as precipitation. Executive Order 22 seems to start from a different assumption — that the 2013 amendment should not be interpreted to make G.S. 20-116(g)(1) unenforceable against leaking garbage trucks. (Requiring a Highway Patrol officer to determine the original source of liquid that has percolated through the waste load and leaked onto the highway would almost certainly have that result.)

Discussion in the ERC meeting suggested that legislators continue to be interested in resolving the conflict through discussions with the Governor’s Office, but prepared the bill as a backstop.

Legislative Authority to “Terminate” an Executive Order. There was no discussion in the ERC meeting of the underlying assumption that the General Assembly has the authority to “terminate” an executive order. Article II of the N.C. Constitution vests legislative power in the N.C. General Assembly. Article III gives the Governor executive power, including the duty to “take care that the laws be faithfully executed”. The N.C. Constitution, in section 6 of Article I, also requires the legislative, executive and judicial powers to be “forever separate and distinct from each other”. So the question is whether the General Assembly’s legislative power extends to the “termination” of an executive order.

Governors use executive orders to guide the activities of executive branch agencies. An executive order cannot replace or directly conflict with laws enacted by the General Assembly. To the extent that an executive order “legislates”, it violates the N.C. Constitution. The most recent separation of powers decision by a state appellate court concerned a 2002 executive order issued by Governor Michael Easley authorizing the state budget director to transfer money from the Highway Trust Fund to cover General Fund obligations and avoid a projected budget shortfall. Two citizens, filing suit as taxpayers and bondholders, asked the court to issue a declaratory judgment finding the executive order unconstitutional. The plaintiffs in the case successfully argued that the Governor exceeded his executive budget authority and acted in conflict with statutes governing use of the Highway Trust Fund. See, Goldston v. State of North Carolina and Michael F. Easley, Governor, 683 S.E. 2d 237 (2009). So, it is clearly possible for an executive order to go too far and violate the constitutional mandate that legislative and executive powers “shall be separate and distinct”.

On the other hand, legislative actions sometimes stray into the powers of the executive. A 1982 N.C. Supreme Court decision struck down a law allocating a certain number of seats on the state’s Environmental Management Commission (EMC) to legislators. (The EMC is the executive branch commission, organized under the Department of Environment and Natural Resources, given authority to implement the state’s air and water quality laws.) The court found that legislators could not serve on a commission exercising administrative and executive authority without violating the N.C. Constitution’s mandate for separation of powers. See, Wallace v. Bone, 286 S.E.2d 79 (1982).

There don’t seem to be any court decisions in North Carolina dealing with legislative authority to terminate an executive order. In fact, there seems to be little law on executive orders at all — in North Carolina or in other states. A legislature can effectively “repeal” an executive order by adopting a contrary statute on the same subject or by withholding funding for an activity required by executive order. A Congressional Research Service guidance document on federal executive orders reports that Congress has responded to some Presidential executive orders by passing legislation simply stating that the order does not have the force of law.

To sum up the settled law: Governor McCrory can rescind or replace any executive order — including those issued by previous governors. The General Assembly can effectively nullify an executive order by adopting a contradictory law on the same subject or by exercising control over state appropriations. The idea of legislatively “terminating” an executive order based on a perceived conflict between the executive order and a statute enters new territory. In the past, those conflicts have been resolved by the courts as a matter of state constitutional law. In any case, a more direct way to legislatively resolve a perceived conflict between Executive Order 22 and the 2013 legislation would be to clarify G.S. 20-116(g)(1) to remove all doubt about the interpretation.

Unless the conflict over leaking garbage trucks can be resolved otherwise, the bill to “terminate” Executive Order 22 may create some new law on the relationship between the N.C. General Assembly and the Governor.

Understanding the Court’s Coal Ash Order

Note: This post was updated to link to a different site for a copy of the judge’s order after the original source site became unavailable.

On March 6, 2014, a Superior Court judge issued an order reversing part of a 2012 declaratory ruling by the N.C. Environmental Management Commission (EMC) concerning regulation of coal ash ponds under state groundwater rules. The declaratory ruling case began in October of 2012 — before the Clean Water Act citizen suits of 2013 and the recent Dan River spill — as a request for an interpretation of state groundwater rules as applied to the coal ash ponds. The declaratory ruling request (filed on behalf of Cape Fear River Watch, Sierra Club, and Western N.C. Alliance) asked the EMC to rule on three issues:

1. Operators of coal ash ponds with Clean Water Act discharge permits first issued on or before December 30, 1983 must take corrective action (such as assessment and remediation) when their activity causes a groundwater standard violation — even if the violation occurs inside the compliance boundary around the ash pond;

2. Operators of coal ash ponds with Clean Water Act discharge permits first issued on or before December 30, 1983 must take immediate action to remove sources of contamination causing a groundwater standard violation; and

3. These same requirements apply to owners of coal ash ponds that are closed and inactive.

Two background notes. State rules recognize the possibility that waste disposal may cause groundwater contamination. The rules generally only require corrective action at a permitted waste disposal site if the waste disposal activity has caused a groundwater standard violation beyond a defined compliance boundary. Corrective action can include assessment of the extent of contamination, steps to contain or reduce ongoing contamination and groundwater remediation. Landfills built to modern (post-1983) solid waste management standards have a groundwater compliance boundary of 250 feet around the perimeter of the waste disposal area or the property line, whichever is closer. Older facilities (like the coal ash ponds) generally have a 500-foot groundwater compliance boundary. See a previous post for more on groundwater compliance boundaries.

December 30, 1983 becomes significant because state rules treat waste disposal sites that first received Clean Water Act permits on or before that date as unpermitted facilities. (More about the logic of that assumption as applied to ash ponds later.) The rules require a different response to groundwater contamination found at an unpermitted waste disposal site as opposed to a permitted facility — presumably because newer facilities have been built to more environmentally protective standards.

Judge Ridgeway’s Decision. On the first issue, Judge Ridgeway agreed with the EMC, concluding that state rules only require corrective action if the waste disposal activity causes a violation of groundwater standards beyond the compliance boundary around the disposal site. Exceedence of a groundwater standard within the compliance boundary does not require corrective action except in extraordinary circumstances. Although consistent with past EMC and DENR interpretations, Judge Ridgeway’s decision leans heavily on new groundwater legislation adopted as part of the Regulatory Reform Act of 2013. (See the earlier post for more on the 2013 legislation.) According to the judge’s order, all of the parties to the declaratory ruling case agreed that the 2013 legislation mooted the compliance boundary issue.

On the other hand, Judge Ridgeway decided the second issue (concerning immediate removal of the source of groundwater contamination) in favor of the petitioners. The judge relied on state rules treating waste disposal facilities first permitted under the Clean Water Act on or before December 30, 1983 differently from those permitted later. The rules classify older facilities as unpermitted and a groundwater standard violation at an unpermitted waste disposal site triggers a requirement to immediately remove the source(s) of contamination. All of the coal ash ponds in the state first received a Clean Water Act discharge permit before December 30, 1983.

Treating the ash ponds as unpermitted waste disposal facilities is key to the judge’s ruling that the utility companies must immediately remove the contamination source at any ash pond that has caused a groundwater standard violation beyond the compliance boundary. Removal of the source of groundwater contamination associated with a coal ash pond clearly has huge implications, since the primary source of contamination is the coal ash itself. Under the rules, a groundwater standard violation at a permitted waste disposal facility may require corrective action, but not necessarily removal of waste causing the contamination.

Judge Ridgeway disposed of the third issue by briefly noting that the laws and rules don’t distinguish between active and inactive waste disposal facilities.

Potential confusion. Judge Ridgeway’s order seems to treat coal ash ponds as permitted waste disposal sites in deciding the first issue and as unpermitted waste disposal sites in deciding the second. The 2013 legislation the judge relies on to decide the first issue clearly applies to waste disposal systems that require an individual permit under either water quality or waste management laws. The new statute language limiting the EMC’s power to require corrective action inside the compliance boundary begins with these words: “When operation of a disposal system permitted under this section results in an exceedance of the groundwater quality standards…”

It seems clear that the 2013 legislation can only benefit operators of waste disposal facilities holding individual water quality or waste management permits. Having given coal ash ponds the benefit of the new law on the first issue, the judge does not explain why the coal ash ponds are treated as unpermitted waste disposal facilities in deciding the second. The judge relies on state rules that predate the 2013 legislation to identify the kind of corrective required at the ash ponds even though the new law also addresses corrective action — without making any distinction based on the permitting history of the facility:

“(k) Where operation of a disposal system permitted under this section results in exceedances of the groundwater quality standards at or beyond the compliance boundary established under subsection (i) of this section, exceedances shall be remedied through cleanup, recovery, containment, or other response as directed by the Commission.”

It is possible that Judge Ridgeway saw no conflict between the new law on corrective action and existing groundwater rules on corrective action at older facilities, but the decision does not explain how he reconciled the two.

Permitted or unpermitted and does it matter? There may well be an appeal of Judge Ridgeway’s decision. By assuming the coal ash ponds have a different permitting status for purposes of the two major issues in the case, the decision awards each side a win and a loss. It is conceivable that at least one party to the case would prefer two wins.

The permitted/unpermitted conflict just emphasizes again the peculiar regulatory status of coal ash ponds. EMC rules treating pre-December 30, 1983 waste disposal sites as “unpermitted” makes perfect sense in the context of truly unauthorized waste disposal sites or older landfills that closed rather than meet new standards for solid and hazardous waste disposal that went into effect in 1983. It makes less sense as applied to coal ash ponds that largely fell under the jurisdiction of the Utilities Commission until 2009 and never had an obligation to comply with solid and hazardous waste regulations. In fact, the coal ash ponds continued to operate for decades after 1983 — subject only to Clean Water Act permits for discharges from the ponds — with the acquiescence of both state and federal policy makers. That only began to change in 2009 after the TVA ash spill drew more attention to the risks. Then, the state somewhat increased environmental oversight for the ponds — but failed to enact comprehensive coal ash disposal legislation much less demand immediate closure of the ash ponds.

Since coal ash ponds operated outside of most environmental regulatory programs for years, existing laws and rules don’t fit either operation or closure of the ash ponds very well. As badly as the state needs a solution to the problems surrounding coal ash ponds, Judge Ridgeway’s order in itself is not likely to be the answer. A solution will require standards for coal ash disposal; a process for safe closure of coal ash ponds; priorities for closure; and assessment of environmental damage and ongoing risk at existing facilities. It’s going to require legislation.

The Dan River Coal Ash Spill and Environmental Policy

March 3, 2014. The February 2 coal ash spill at Duke Energy’s Dan River steam station (see an earlier post for more on the spill) puts some recent and still pending environmental policy decisions in a new light.

Preventing state environmental programs from adopting standards “more stringent than” federal standards. In 2011, the General Assembly prohibited environmental agencies from adopting a rule “that imposes a more restrictive standard, limitation, or requirement than those imposed by federal law or rule, if a federal law or rule pertaining to the same subject matter has been adopted”. You can find the statute (G.S. 150B-19.3) here. The increasing evidence of water quality problems associated with coal ash ponds may test those limits on state regulation —

♦ The question is whether new state rules on coal ash disposal or closure of existing coal ash ponds would be considered “more stringent” than existing federal rules. Federal rules exempt coal ash from regulation as a hazardous waste, but include ash as a “solid waste” and set minimum standards for solid waste landfills. On the other hand, coal ash ponds aren’t considered solid waste landfills so the solid waste rules don’t apply. Federal Clean Water Act rules regulating stormwater and wastewater discharges apply to the ponds, but nothing in the existing federal rules requires a coal ash pond to meet construction standards to minimize groundwater impacts or obligates the utility company to move coal ash from a pond to a disposal facility with less environmental risk. Given that landscape — federal rules address some, but not all, concerns about coal ash disposal — can state environmental programs fill the gaps by imposing additional requirements without specific statutory authority?

♦ The exceptions in G.S. 150B-19.3 are inadequate to get ahead of an environmental problem that poses a long-term risk, but not a “sudden, unforeseen” threat. Few of the problems associated with coal ash ponds would be considered sudden or unforeseen. Both federal and state regulators have long known that unlined ash ponds pose some risk of groundwater contamination. The massive spill at TVA’s Kingston plant in 2008 focused attention on the possibility of structural failure of a coal ash impoundment. The U.S. Environmental Protection Agency has been working on federal coal ash disposal regulations off and on for over ten years because of these and other concerns. As obvious as the problems surrounding coal ash disposal have now become, the exceptions in G.S. 150B-19.3 don’t seem to give environmental agencies a way to address those problems through rulemaking.

♦ If state agencies need additional statutory authority to adopt state rules that go beyond current federal regulation of coal ash disposal, rulemaking could not begin until after the 2014 legislative session that begins in mid-May. Rule adoption often takes two years. The other alternative would be for the General Assembly itself to set standards for coal ash disposal through legislation. Legislation can move much more quickly than rulemaking, but the last effort to enact state legislation on coal ash failed due to opposition from the utility companies. See this post for more information on earlier state legislation and a link to the 2009 coal ash disposal bill.

Efforts to limit state review of engineered plans and drawings. North Carolina’s professional engineers (PEs) have lobbied for several years to limit state review of plans prepared by PEs and to constrain the ability of regulatory staff to require changes to engineering plans. The most recent effort led to language in the Regulatory Reform Act of 2013 (Session Law 2013-413) requiring a study of state and local review of engineering plans. Section 58 of S.L. 2013-413 requires DENR, the Department of Transportation, the Department of Health and Human Services and local governments to study:

“(iii) the standard scope of review within each permit program, including whether… staff are requiring revisions that exceed statutory or rulemaking requirements when evaluating such permits or plans; [and]

(iv) opportunities to eliminate unnecessary or superfluous revisions that may have resulted in the past from review processes that exceeded requirements under law, and opportunities to otherwise streamline and improve the review process for applications and plans submitted for approval.”

The history and recent failure of the Dan River stormwater pipe reinforces the value of having a second, objective review of engineering plans and decisions. The early decision by utility company engineers (before state regulation) to expand the ash pond over a metal stormwater pipe and the apparent failure to plan for maintenance of the pipe likely contributed to the spill. In the aftermath of the February spill, it became clear that current Duke Energy staff did not know how the stormwater pipe had been constructed — incorrectly assuming that the entire stormwater pipe was concrete. Even in real time response to the Dan River spill, Duke Energy and DENR engineering staff sometimes reacted very differently to the same information. Duke Energy did a camera inspection of a second, smaller stormwater pipe at the Dan River site to check its condition. According to news reports, Duke Energy staff planned no immediate action based on the results of the camera inspection other than continued monitoring. A state dam safety engineer who looked at the same video showing leaks and pooling of water in the pipe concluded that the second pipe could also be discharging coal ash to the Dan River. Water quality testing confirmed high levels of arsenic in discharges from the pipe and the dam safety program ordered Duke to close the second pipe within 10 days. When an error carries potentially high risks or costs, review of engineering plans and decisions can be critical — simply because state and local environmental staff will look at the same situation through different eyes.

Note: The Study of Review of Engineering Work has been submitted to the legislature’s Environmental Review Commission and the General Assembly could consider legislation on state/local review of engineering plans in the upcoming legislative session.

Limiting DENR’s ability to order steps to contain groundwater contamination. The Regulatory Reform Act of 2013 also does two significant things to limit (or defer) steps to contain or cleanup groundwater contamination:

♦ The law makes the property line the presumed “compliance boundary” for groundwater contamination caused by a permitted waste disposal facility (including a coal ash pond). State rules allowed for some exceedence of groundwater standards near a waste disposal area, but generally put the compliance boundary at 250 feet around the footprint of the facility or at the property line whichever is closer. Causing an exceedence of groundwater standards beyond the compliance boundary violates the permit. The new law presumes groundwater contamination associated with a waste disposal facility can be allowed to migrate to the property boundary — including any adjoining property in the same ownership. The law does not change existing compliance boundaries set by permit, but sends a strong message about future permit terms and regulatory requirements. The change would potentially allow the owner of a waste disposal facility to contaminate a much greater area of groundwater without any obligation to remediate. Using the property line as the compliance boundary also leaves little safety margin to protect the groundwater rights of nearby property owners.

♦ The law limits DENR’s ability to require the operator of a permitted waste disposal facility to take steps to remediate or contain groundwater contamination within the compliance boundary. The law ties DENR’s hands until the contamination has migrated beyond the compliance boundary unless DENR can show that:

(1) The contamination has already caused a water quality violation in adjoining classified waters or a violation “can be reasonably predicted to occur”;

(2) The contamination poses an imminent threat to the environment, public health, or safety;

(3) The contamination will cause a violation of any standard in groundwater occurring in the bedrock, including limestone aquifers, unless the violation has no potential to adversely affect a water supply well.

At the very least, DENR will have to meet a significant new burden before directing the owner of a waste disposal facility to take steps to prevent further migration of groundwater contamination. It appears that clear evidence of groundwater contamination moving offsite — affecting another property owner’s groundwater — will not be enough by itself to allow DENR to require steps to contain the contamination. DENR will have to demonstrate that groundwater standards will be violated. In the worst case, the horse will be well out of the barn before the state can act.

Coal Ash Problems Continued

February 9, 2014. An earlier post described groundwater contamination and potential surface water pollution associated with coal ash impoundments in North Carolina. Last week, a Duke Energy ash impoundment in Rockingham County released an estimated 82,000 tons of coal ash into the Dan River. The ash, in a slurry of as much as 27 million gallons of water, leaked from a ruptured stormwater pipe running under an ash impoundment at Duke’s now-closed Dan River Steam Station. The spill continued off and on for five days as Duke Energy worked to temporarily contain the spill and then permanently cap the stormwater pipe. Duke Energy workers finished installing and testing the permanent cap yesterday. Early reporting on the spill can be found in stories by Charlotte Observer reporter Bruce Henderson here and here and by AP reporter Michael Biesecker here.

EPA staff have been on site since early last week. Although coal ash has not been classified as a hazardous waste, coal ash can contain a number of metals identified as hazardous substances in rules adopted by EPA under the Clean Water Act. Under federal law, a hazardous substance spill that exceeds thresholds set in federal rules must be reported immediately to EPA and to emergency response agencies. (You can find the rule listing hazardous substances regulated under the Clean Water Act and the reporting threshold for each substance here.) Although EPA must be notified immediately of a reportable spill, the person (or company) responsible can take up to 24 hours to determine whether the spill meets the reporting threshold.

Under state law (G.S. 143-215.85), anyone responsible for a hazardous substance spill must “immediately notify the Department, or any of its agents or employees, of the nature, location and time of the discharge and of the measures which are being taken or are proposed to be taken to contain and remove the discharge.” Both state and federal law also require immediate action to contain the spill, remove the hazardous substance and restore damage caused by the spill.

It is not yet clear how the spill will affect water quality and life in the Dan River. The nonprofit Waterkeeper Alliance reported that water samples taken by that organization close to the spill site showed high levels of arsenic and other metals. The Waterkeeper Alliance reported arsenic at levels capable of causing acute injury to fish and wildlife. You can find the Waterkeeper Alliance test results here. (Click on an individual sampling location in the box on the left-hand side of the page to pull up the test results for that sample.) Note that results have been reported as milligrams/liter (mg/L) and have to be converted to micrograms/liter (ug/L) for direct comparison to DENR sampling results.

DENR posted its complete water quality test results late Friday; you can find the DENR lab report here. Allowing for different sampling locations and units of measure, DENR’s results are generally consistent with test results reported by the Waterkeeper Alliance. A DENR water quality sample taken on February 3, 2014 at Draper Landing (about 2 miles downstream of the spill site) showed arsenic levels of 40 micrograms per liter — four times the water quality standard of 10 micrograms/liter. A sample taken on the same day further downstream (at the Virginia border) showed arsenic levels of 13 micrograms/liter. DENR’s results also show water quality standard violations in the Dan River for copper, aluminum and iron. By February 4, arsenic levels at Draper Landing had dropped back below the water quality standard and levels at the Virginia border were at the water quality limit of 10 micrograms/liter. Results for copper, aluminum and iron remained high.

Sampling immediately after a spill only provides a snapshot of water quality conditions and may not reflect long-term impacts to the river as metals leach out of coal ash settled on the river bottom. A year after the TVA coal ash spill, Duke University scientists found extremely high levels of arsenic in pore water (the water in river-bottom sediment) in Tennessee’s Emory River. Although surface water testing showed arsenic levels in the Emory River dropped just after the TVA spill, the contaminated sediment became a source of ongoing arsenic loading to the river in low oxygen conditions. (Source: Bruce Henderson’s report for the Charlotte Observer.) It will also take more time to get an assessment of the damage caused to vegetation, fish and wildlife as a result of the physical presence of ash in the water and on the river bottom.

There have been no reported impacts to drinking water. The Danville, Virginia water system has an intake in the river downstream of the spill site, but the water treatment plant had been able to filter out the ash and treated water continued to meet drinking water standards.

Some questions and concerns raised by the spill:

Public notice of hazardous substance spills. It doesn’t appear that either federal or state law requires the person (or company) responsible for a hazardous substance spill to notify the general public and that may be a gap for the N.C. General Assembly to fill. After notifying state and federal officials, Duke Energy put out a press release about the Dan River spill just over 24 hours after detecting the release. In the case of an immediate health and safety hazard, early notice would be better — although there may be a trade-off between early notice and the completeness and accuracy of information about the spill.

Conflicting water quality test results. Conflicting water quality test results created a significant amount of confusion about the Dan River spill — and some degree of suspicion. Mid-week, Duke Energy reported that river water samples taken downstream of the release showed only trace amounts of arsenic and other metals. You can find the Duke Energy water quality testing plan and results here. Note that Duke Energy reported water quality test results as parts per billion (ppb) — a unit that is essentially equivalent to the micrograms/liter (ug/L) used by DENR. (For purposes of comparing results, assume 1 ppb =1 ug/L.) Duke Energy also provides results for both unfiltered samples and filtered samples used to monitor treated drinking water quality.

Duke Energy’s instream results differ significantly from results reported by the Waterkeeper Alliance and by DENR. In the end, the Waterkeeper Alliance results and the DENR results seem to be generally consistent with each other; differences can most likely be attributed to selection of sampling locations. The extreme divergence of Duke Energy’s water quality test results calls for some explanation. Since state water quality test results lagged behind by several days, the Duke Energy results became the basis for early public statements about water quality impacts and that information proved to be unreliable. The inconsistent test results also suggest the public would be better served if the person responsible for a hazardous substance spill provided water quality test results to the state’s water quality agency for confirmation before releasing the information to the public.

Much of the water quality concern over the last week focused on arsenic levels in the Dan River. Another metal found in coal ash, selenium, can damage fish populations and present a health risk to people who eat the fish. DENR’s February 7, 2014 lab results for the Dan River did not find excessive levels of selenium, reporting selenium at the lowest quantifiable level. Preliminary lab results released by DENR on February 6, 2014 omitted the initial selenium results, indicating those samples would be given additional analysis because of suspected “interference”. The preliminary lab report did not explain the nature of the interference — which could mean another potential source of selenium in the Dan River or something related to the analytical process. Given conflicting data and general confusion over water quality test results from the Dan River spill, it would be helpful to have more explanation of the preliminary and final selenium results.

Delays in providing state water quality sampling results. DENR tested for more potential contaminants than either Duke Energy or the Waterkeeper Alliance, but that does not completely explain why results only became available five full days following the spill. Some analytical methods take longer than others, but it is important to know if inadequacies in the state water quality laboratory or other factors contributed to the delay. In this case, waiting five full business days for complete water quality test results probably didn’t cause additional harm, but the next hazardous substance spill may be different. The delay clearly did have one immediate result — it left an information gap that was filled by what turned out to be inaccurate water quality information.

Lack of information about conditions in old coal ash impoundments. Since older coal ash ponds have been largely unregulated, state and federal environmental agencies have very limited information about the impoundments. The Dan River spill suggests that utility company managers don’t have all of the information needed to manage environmental risk at these facilities either. Duke Energy struggled to find and fix the cause of the spill in part because the company believed the leaking stormwater pipe had been constructed entirely of concrete. Duke Energy employees could not find any damage to the end of the pipe and there was no obvious reason that a buried section of concrete pipe would have broken. It turned out that much of the buried pipe was actually constructed of metal rather than concrete, suggesting that corrosion caused the break.

The lack of accurate information on conditions at the Dan River Steam Station impoundment suggests the need for a joint Duke Energy/ DENR engineering review of existing ash ponds –including documentation of past construction, maintenance and expansion activities –to identify potentially high risk conditions.

The Links between Coal Ash Disposal and Water Pollution

January 23, 2014. Burning coal generates ash; depending on the type of coal, the ash may contain iron, chromium, manganese, lead, arsenic, boron and selenium. At high levels of exposure, some of those elements cause health problems such as increased cancer risk and neurological damage. At many coal-fired power plants, large open impoundments (or “ponds”) store coal ash in water; the ponds may also receive stormwater and process wastewater from the electric generating plant. Dry ash may be disposed of in a landfill, but can also be used in manufacturing cement or as additional fill material on construction sites. Concern about the environmental impacts of coal ash disposal prompted the U.S. Environmental Protection Agency (EPA) to propose new federal rules in 2000. EPA ultimately withdrew the proposed rules in the face of opposition from electric generating companies, members of Congress and state governments. More than a decade later, regulation of coal ash disposal remains at a stalemate — no new federal rules have been adopted and Congressional supporters of the electric generating companies have responded to a new EPA rule proposal by attempting to remove EPA’s authority to regulate coal ash disposal altogether. In the meantime, data collected by EPA and events in North Carolina suggest real risks to surface water and groundwater supplies.

Coal ash in North Carolina. Duke Energy Carolinas and Duke Energy Progress (related companies resulting from the 2012 merger of Duke Energy and Progress Energy) have a combined 33 wet coal ash ponds located at 14 electric generating stations in North Carolina. You can find a map showing the location of the N.C. ash ponds here. The ponds have been largely unregulated until very recently. No state or federal standards applied to construction of the existing coal ash ponds. Unlike modern landfills, the ash ponds are not lined to prevent contaminants from percolating into the groundwater below. Although coal ash can have some of the characteristics of hazardous waste, EPA has excluded coal ash from federal hazardous waste regulations.

Before 2009, DENR’s water quality program exercised very limited regulatory authority over coal ash ponds. The Division of Water Quality (DWQ) issued a federal Clean Water Act permit for any direct discharge from an ash pond to surface waters, but did not require stormwater controls or groundwater monitoring. State law exempted coal ash ponds and other utility impoundments from regulation under the N.C. Dam Safety Act. The state’s largely hands-off approach to coal ash ponds began to change after a massive spill at the Tennessee Valley Authority (TVA) Kingston plant in 2008. On December 22, 2008, an ash impoundment at the Kingston plant breached and spilled an estimated 5. 4 million cubic yards of ash slurry. The spill flooded 15 homes, covered 300 acres and deposited over 3 million cubic yards of ash in the nearby Emory River, making it one of the largest industrial spills in American history. The cleanup cost $1.1 billion and took over four years to complete.

In response to the TVA disaster, North Carolina legislators introduced several bills in 2009 to strengthen state regulation of coal ash disposal. House Bill 1354 may have been the most comprehensive; the bill set standards for coal ash disposal, required groundwater monitoring around existing ash ponds, and prohibited construction of new wet ponds. The bill ran into opposition from the major electric generating companies and never got out of committee. The only piece of coal ash legislation enacted in 2009, Session Law 2009-390 , repealed the N.C. Dam Safety Act exemption for coal ash ponds and other utility impoundments.

Although comprehensive state legislation on coal ash disposal failed, DWQ increased efforts to use existing state laws to reduce the water pollution risk and began putting groundwater monitoring requirements in Clean Water Act permits for coal ash ponds in 2009-2010. One of the factors in DWQ’s decision: troubling results from voluntary groundwater monitoring carried out by Duke Energy and Progress Energy as part of an industry-led program started in 2006. DWQ also began work on stormwater requirements for coal ash disposal facilities. In 2013, several things happened to shine a much brighter light on the coal ash ponds in North Carolina:

Clean Water Act citizens’ suits and DENR enforcement action. In early 2013, the Southern Environmental Law Center (SELC) filed two notices of intent to sue under the Clean Water Act based on water pollution from coal ash ponds. (Under the Clean Water Act, a citizen can sue to enforce the Act only if the water quality permitting agency has failed to take effective enforcement action. The 60-day notice gives the permitting agency time to show that effective enforcement action has been taken.) One notice, filed on behalf of the N.C. Sierra Club, Western N.C. Alliance and the Waterkeeper Alliance, concerned illegal discharges into the French Broad River from ash impoundments at the Asheville Steam Electric Generating Plant operated by Duke Energy Progress. The other notice, filed on behalf of the Catawba Waterkeeper Foundation, attributed contaminants in Mountain Island Lake – a water supply for the City of Charlotte – to seeps from coal ash ponds associated with the Riverbend Steam Station in Gaston County operated by Duke Energy Carolinas.

In response to the two SELC notices, DENR filed enforcement actions against Duke Energy Carolinas and Duke Energy Progress in the spring of 2013 and immediately began work on a consent order to resolve the Asheville and Riverbend violations. The state enforcement action described illegal discharges in the form of seeps through the impoundment walls at both facilities and groundwater standard violations near the Asheville impoundments. After taking public comment on a draft consent agreement, DENR filed a revised consent agreement with the court in October 2013. You can find a copy of the proposed consent agreement here. The consent agreement would require the companies to pay civil penalties, increase groundwater monitoring and eliminate unpermitted discharges to rivers and lakes. The consent agreement has not yet been approved by the court; meanwhile, the pending state enforcement action keeps the threatened citizens suits on hold.

Drinking water well contamination near the Asheville coal ash pond. In 2012, the state water quality program found high levels of iron and manganese in one of five private drinking water wells located near the Asheville plant. When DENR retested the well in 2013, the results showed a level of contamination that made the water unsafe for use without filtration and DENR ordered Duke Energy Progress to provide the homeowner with an alternative water supply and increase off-site groundwater monitoring around the ash pond. The contaminated drinking water well added another groundwater impact to those identified in the DENR enforcement action filed earlier in the year.

Duke Energy’s agreement with Cape Fear Public Utility Authority. Last fall, Reporter Bruce Henderson wrote an article for the Raleigh News and Observer about an unusual agreement between Duke Energy Progress and Cape Fear Public Utility Authority. Cape Fear Public Utility Authority has two public water supply wells located within 2,000 feet of an impoundment holding coal ash from Duke’s Sutton Electric Generating Plant; one of the two wells supplies water to the Flemington community. Under the agreement, Duke Energy Progress will pay up to $1.8 million to extend a water line to carry treated Cape Fear River water to Flemington and the Authority will close the water supply well. The agreement is significant for two reasons:

1. In entering into the agreement, Duke has implicitly acknowledged that groundwater contamination from the coal ash pond may move offsite and contaminate the public water supply wells.

2. The agreement requires Cape Fear Public Utility Authority to close four existing water supply wells in a 17-square mile area bounded by the Cape Fear and Northeast Cape Fear rivers. The Authority also agrees not to install new public water supply wells in the area. As a result, groundwater in the entire 17-square mile area will be off-limits for public water supply for the foreseeable future because of the potential for contamination from the coal ash pond. (The agreement does not affect private water supply wells in the area, but those wells would presumably face the same risk of contamination.)

Total cost of the project has been estimated at $2.25 million and costs above the first $1.8 million will be shared between Duke Energy and Cape Fear Public Utility Authority. You can find a copy of the agreement (as presented at the October 2013 meeting of the Cape Fear Public Utility Authority Board) here.

National data on environmental harm caused by coal ash disposal. A 2007 EPA report assessed 85 instances of suspected damage caused by disposal of coal ash in landfills or in ponds. In 67 cases, EPA confirmed either “proven” damage (direct health impacts or documented harm to fish, wildlife, or water quality) or “potential” damage (contamination exceeding drinking water standards either beneath or near the waste disposal site). The 67 cases broke down into 24 proven damage cases and 43 potential damage cases. In the remaining 18 cases, EPA could not confirm a link between coal ash disposal and environmental or health risks.

In 2009, EPA surveyed electric generating companies to get more information specifically on wet ash impoundments and asked the companies to report any known spills or discharges that had occurred over the previous ten years (not including groundwater releases). The 240 companies responding to the survey reported 29 spills, breaches and discharges. There was little overlap between the incidents reported in the survey and those assessed in EPA’s 2007 report. Some of the spills reported in the 2009 survey had occurred since the 2007 assessment; others had never been reported to EPA.

North Carolina in the national data. Two of the “proven” damage cases described in the 2007 EPA report involved older incidents at North Carolina facilities. Permitted releases of water from a coal ash impoundment at the Roxboro Steam Electric Generating Plant made fish in Hyco Lake unsafe to eat for a number of years because of high levels of selenium. In 1990, Carolina Power & Light shifted to a dry ash system at the Roxboro plant to meet tighter selenium discharge limits and the fish consumption advisory was lifted in 1994. In the second “proven” damage case from North Carolina, selenium in discharges from an impoundment at Duke Energy’s Belews Creek plant entirely eliminated 16 of 20 fish species originally found in Belews Lake, including all of the major sport fish. Under state orders to reduce the selenium discharge, Duke Energy changed its method of fly ash disposal in 1985 and the state lifted the fish consumption advisory for Belews Lake in 2000. (Descriptions of the environmental damage at Hyco Lake and Belews Lake come from the 2007 EPA Coal Combustion Waste Damage Assessment Report; the link is provided above.) Duke Energy’s Allen Steam Generating Plant appears in the EPA list of potential damage cases. The Asheville and Riverbend releases cited in DENR’s 2013 enforcement action do not appear in either the 2007 EPA report or in the 2009 survey responses submitted on behalf of Duke Energy and Progress Energy.

State and federal regulatory action? In June of 2010, EPA published a new draft rule on disposal of coal combustion residuals. The rule proposed two alternative approaches to regulating coal ash disposal –1. treat the ash as a “special waste” under federal hazardous waste rules, establishing specific standards for disposal; or 2. adopt standards for disposal of coal ash as solid waste (the same broad category that covers other, non-hazardous waste). EPA has not yet decided on which path to take and in the meantime there have been several efforts to shut down the EPA rulemaking entirely. In July of 2013, the U.S. House of Representatives approved H.R. 2218 (The Coal Residuals Reuse and Management Act of 2013) which would prohibit EPA from adopting enforceable national standards for coal ash disposal and leave regulation to the states. See the Library of Congress bill summary for more on H.R. 2218. The U.S. Senate has not acted on the bill.

In North Carolina, the Regulatory Reform Act of 2013 ( Session Law 2013-413) included a provision limiting DENR’s authority to require steps to contain groundwater contamination at a permitted waste disposal facility — including coal ash impoundments. For more detail, see the section on groundwater in an earlier post on 2013 water quality legislation.

So. It seems clear that large, unlined coal ash impoundments present some risk to groundwater, surface water and fish. Recent events suggest that the risk may be greater than previously known. There was little or no groundwater monitoring around coal ash ponds before 2006 and no state oversight of groundwater monitoring until 2009-2010. It is simply a fact that groundwater contamination is much more likely to be found if someone is actually looking for it. The same is true for discharges to rivers and lakes through the walls of coal ash impoundments. The Riverbend and Asheville enforcement cases only happened after citizens documented unpermitted discharges and gave notice of intent to sue under the Clean Water Act. It is not clear that the state’s water quality program had found the illegal discharges identified in the consent order or has the resources to do adequate inspections of these large impoundments. (The Asheville impoundments alone total 91 acres.) So as new information suggests the need for frequent, careful inspection of coal ash ponds and quick, effective response to groundwater contamination, state budget and environmental policies are moving in the direction of making both more difficult.

Legislative Wrap-Up III: Solid Waste, Hazardous Waste and UST

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.

Buying Contamination

July 10, 2013: The Senate version of House Bill 94 (Amend Environmental Laws) makes so many changes to environmental statutes, that I just focused on language in Section 16 that requires Council of State approval before any state agency (including the UNC campuses and community colleges) can buy property with known contamination. (Note: The Council of State consists of the Governor and other individually elected heads of state agencies such as the Attorney General, Commissioner of Labor, Commissioner of Agriculture and State Treasurer.) Approval would be given only if the agency has a plan to use funds other than state General Fund appropriations for the purchase. See Edition 4 of House Bill 94 for the Senate version of the bill.

The bill has already passed both chambers and is now in conference to resolve differences between the House and Senate versions. The language on purchase of contaminated sites was not in the House version of the bill, but I do not know whether this is an area of controversy between House and Senate conferees.

On its face, the restriction appears to be common sense — why should state funds be used to buy contaminated property that may be expensive to clean up? In practice, completely avoiding property with contaminated groundwater may be more difficult than legislators realize. It also bumps right into the General Assembly’s repeated endorsement of limited, “risk-based” cleanup of groundwater contamination because of the lower remediation cost.

Some background —

Tens of thousands of properties across the state (urban and rural) have groundwater contamination. Most of the contamination came from past industrial and commercial uses, such as leaking underground petroleum storage tanks at gas stations, solvent contamination from dry-cleaning operations, old dump sites, and miscellaneous chemical spill or disposal sites. Some resulted from agricultural pesticide use. Recent reports from the Department of Environmental and Natural Resources provide some numbers:

372 dry-cleaning sites with known solvent contamination

3,071 chemical spill, chemical disposal and unlined waste dump sites

26,625 reported petroleum releases (17,816 from commercial underground storage tanks and 8,809 from noncommercial tanks, such as home heating oil or farm tanks)

These kinds of problems are so common that it will be difficult for state facilities and university campuses to expand without bumping into some kind of contamination. Groundwater monitoring wells have been installed near several buildings in the state government complex in downtown Raleigh — including the legislative building — because of groundwater contamination that most likely came from a dry cleaner that once operated near the current site of the Nature Research Center. The numbers provided in DENR’s reports to the General Assembly only represent the sites that state regulators already know about. New reports of contamination come in with some frequency as property is developed or redeveloped.

Many of the state’s remediation programs do not require complete cleanup of groundwater contamination, allowing some level of contamination to remain as long as it does not affect drinking water supplies or create some other health or environmental hazard. By law, both the underground storage tank and dry-cleaning solvent cleanup programs use a “risk-based” cleanup approach that often allows some level of groundwater contamination to remain after remediation is completed. Cleanup reduces the groundwater contamination enough to eliminate any immediate hazard. Risk to drinking water supplies can sometimes be eliminated by abandoning drinking water wells and connecting to a local water system. But in the end, the groundwater will continue to have some level of contamination for many years.

The General Assembly has recently expanded the kind of contaminated sites eligible for “risk-based” cleanup to also include industrial sites. Although few companies have taken advantage of the opportunity to do a risk-based cleanup yet, adding industrial sites to those eligible for “risk-based” cleanup will likely increase the number of contaminated sites where remediation will not completely eliminate groundwater contamination. (Ironically, the definition of “contamination” used in the bill comes out of the risk-based remediation law for industrial sites.)

Through the Brownfields Redevelopment Program, state law actually encourages redevelopment of contaminated sites and can allow the new owner/developer to avoid some cleanup costs. If the person who caused the contamination has the financial ability to do a clean up, that person continues to be responsible for most remediation. Even if the original polluter does not have the financial ability to cleanup the contamination (or cannot be found), the brownfields redevelopment laws provide liability protection to the new owner and allow a “risk-based” cleanup of any contamination. A number of local governments and developers have used the brownfields program to make idle, blighted industrial sites productive again.

Without modification, the Senate language may be too restrictive to allow for necessary expansion of state facilities and community college/university campuses. It also causes the General Assembly to bump into its own policies on cleanup of environmental contamination. On the one hand, the General Assembly has consistently moved to increase use of risk-based cleanups that allow some level of groundwater contamination to remain for many years after remediation is done. On the other hand, the proposed Senate language tries to avoid state purchase of property with any contamination at all. Those two policies may not be reconcilable.

Another Solid Waste Issue

July 2, 2013: The Senate Agriculture and Environment Committee took up a noncontroversial House bill concerning local solid waste planning (House Bill 321). Before approving the bill, senators amended it by adding a section that chooses sides in a specific legal dispute between a landfill operator and a local government. Sen. Fletcher Hartsell described the amendment as “grandfathering” a construction and demolition debris landfill in Union County that lost its local franchise agreement. There appears to be a bit more to the situation, including several years of litigation between the landfill operator and the local government where the landfill is located.

First, a little background on the landfill franchise requirement. Since 1994, N.C. law has required the operator of a solid waste landfill that receives household waste or construction/demolition waste to have a franchise from the local government. The franchise approach assumes that a privately-run landfill still exists largely to provide waste disposal services for a city or county. The franchise also allows the local government hosting a privately-run landfill greater influence on its operation and management.

Based on the brief description in committee (and a quick Google search), the amendment to House Bill 321 seems to involve a dispute between the Town of Unionville and Griffin Farm & Landfill, Inc. that has been going on since 2009. In 2004, Griffin Farm & Landfill, Inc. received a franchise from the Town of Unionville for a construction and demolition debris (C&D) landfill. On June 30, 2008, Griffin Farm stopped accepting waste at the C&D landfill rather than meet new state landfill standards. Both the franchise and the 5-year state permit for the C&D landfill were set to expire on February 9, 2009 and in December 2008 Griffin Farm applied to the Town of Unionville for a new franchise. The Town of Unionville denied the franchise application in April of 2009, citing Griffin Farm’s neglect of the landfill, refusal to comply with new landfill standards, and past history of state violations. Several years of litigation between Unionville and Griffin Farm followed. Griffin Farm filed suit in federal court, claiming a constitutional right to continue operating the C&D landfill. The U.S District Court for the Western District of N.C. issued a decision in August of 2012 in favor of the Town of Unionville. [Note: The background facts largely come from the August 8, 2012 federal district court decision in Griffin Farm & Landfill, Inc. & Richard S. Griffin v. Town of Unionville.]

If the General Assembly approves House Bill 321 as amended, Griffin Farm & Landfill, Inc. will be allowed to apply for a new state permit for the C&D landfill without a local government franchise. Since state law otherwise requires a franchise for operation of a C&D landfill, Griffin Farm & Landfill, Inc. would presumably become the only solid waste landfill in the state without a local government franchise. Disconnecting the solid waste landfill permit from a local franchise should not be done without considering the implications for other landfill operators, local governments and state waste management policy. At the very least, the General Assembly needs to be aware that it is both setting a precedent and intervening in a longstanding legal dispute.

Note: Like much of the state’s solid waste law, the franchise statute treats waste disposal primarily as a service to citizens rather than a commercial activity in its own right. State solid waste laws also set goals for waste reduction and increased recycling. The tension between treating landfills as a necessary service versus a moneymaking commercial activity also provides much of the back story behind Senate Bill 328 (Solid Waste Management Reform Act of 2013). In that case, the push to change the 2007 landfill standards largely comes from private waste management companies interested in a business opportunity beyond simply serving N.C. waste disposal needs. That business case is supported by a U.S. Supreme Court decision holding that movement of trash from one state to another for disposal is interstate commerce, so no state can just prohibit shipment of waste either into or out of the state. (The U.S. Supreme Court has upheld state and local regulations that support legitimate public purposes — such as environmental protection or recycling — even if the regulations affect movement of trash across state lines.)

Landfill Update

June 20, 2013: Yesterday, the Senate Finance Committee approved a revised version of Senate Bill 328 (the Solid Waste Management Reform Act of 2013). The new bill draft undoes some of the changes to existing solid waste laws proposed in earlier versions of the bill. The bill:

— Reinstates the requirement for an Environmental Impact Statement (EIS) for landfills.

— Adds a modified requirement for inspection and cleaning of leachate lines (requiring inspection every five-years and cleaning as needed in place of the current requirement for annual cleaning).

— Removes earlier bill language that would have allowed waste disposal in wetlands that are not protected under federal law; the bill still eliminates the current 200 foot buffer between waste disposal areas and wetlands.

— Returns to existing limits on landfill size, removing language that would have increased the maximum landfill height from 250 to 300 feet.

Unfortunately, the new version of Senate Bill 328 provides even less protection for endangered species habitat and other sensitive areas than the previous bill draft. The new version still repeals language in the solid waste laws that allows DENR to deny a landfill permit based on significant damage to:

“ecological systems, natural resources, cultural sites, recreation areas, or historic sites of more than local significance…[including] national or State parks or forests; wilderness areas; historic sites; recreation areas; segments of the natural and scenic rivers system; wildlife refuges, preserves, and management areas; areas that provide habitat for threatened or endangered species; primary nursery areas and critical fisheries habitat designated by the Marine Fisheries Commission; and Outstanding Resource Waters designated by the Environmental Management Commission.”

But the bill also drops earlier Senate Bill 328 language that would have prevented landfills from being located in critical habitat for a threatened or endangered species or in a historically or archaeologically sensitive site. The only protection for important natural resources appears in one provision that requires a 1500 foot setback between a landfill and a national or State park, a designated Natural and Scenic River, a National Wildlife Refuge, critical fisheries habitat or Outstanding Resource Waters.

Without any permitting standard that protects sensitive areas, information from an EIS that shows construction or operation of the landfill will significantly damage a park, wildlife refuge, endangered species habitat, historic or archaeological site will just be interesting reading. The bill will leave DENR with little or no ability to actually use that information to deny a permit or to put conditions on the permit to protect conservation areas, public recreation areas, endangered species habitat and other sensitive resources.

SmithEnvironment Blog

Environmental Law and Policy from a North Carolina Point of View