Category Archives: Groundwater

Groundwater Standards for PFAS — Public Health and Regulatory Relief

July 11, 2024. Yesterday, the Environmental Management Commission’s Groundwater and Waste Management Committee voted to recommend against moving forward with groundwater standards for five of eight per and poly-fluorinated substances (PFAS) included in a Department of Environmental Quality (DEQ) rulemaking proposal. It may be an unprecedented decision to reject health-based standards that would also provide regulatory relief to business and protect property values.

DEQ has proposed two sets of PFAS rules for EMC adoption. One rule package proposes groundwater standards for eight per and poly-fluorinated substances (PFAS) prevalent in the state — PFOS, PFOA, GenX, PFBS, PFNA, PFHxS, PFBA, and PFHxA. The second rule package proposes parallel surface water standards for the same substances. Both sets of rules establish health-based standards for ingestion of the substances in drinking water. The surface water standards also take fish consumption into consideration since PFAS can bioaccumulate in fish tissue. Scientific research has documented that these substances are toxic; accumulate in the human body; and persist in the environment for long periods of time. Some have been identified as a likely cancer risk in humans.

Surface water standards would largely be enforced through discharge limits on industrial and municipal wastewater systems identified as potentially significant PFAS sources. The groundwater standards would be used as to set remediation goals for cleanup of PFAS contamination in groundwater; limit permitted releases of PFAS to groundwater; and as the health threshold for providing alternative water supplies to the owners of contaminated wells.

The two sets of rules have moved slowly through the EMC committee process. Yesterday, the EMC’s Groundwater and Waste Management Committee debated whether to recommend that the full EMC send the entire groundwater rule package of eight PFAS standards out to public notice as the next step in rule-making. The committee declined to do that and instead voted to recommend that the EMC move forward with only three of the eight standards — those for PFOA, PFOS and GenX. The committee recommendation would have the paradoxical result of rejecting health-based standards for the other five substances even though the new standards would actually reduce regulatory burden on business and potentially benefit private property owners who have detectable levels of PFAS in their groundwater.

Background on N.C. groundwater standards. First some background on how N.C. groundwater standards work. The EMC has adopted specific health-based groundwater standards for a number of contaminants. In the absence of a specific standard for a contaminant, EMC rules provide that the groundwater standard will be the “practical quantification limit” (PQL) for the contaminant. In lay language, the PQL means the level of the contaminant that can be detected using existing technology.

Today, PFAS detected in groundwater is regulated based on the detection limit for each substance; the EMC has not adopted a specific health-based groundwater standard for any PFAS. Release of PFAS to groundwater above the detection limit without a permit is a violation of the groundwater rules and the detection limit serves as the goal for remediation of PFAS- contaminated groundwater. The rules proposed by DEQ would establish health-based groundwater standards for the eight PFAS substances listed above. If adopted by the EMC, those health-based standards would replace use of the detection limit as the enforceable groundwater standard for purposes of remediation, permitting, and public health response.

Comparison of the proposed health-based standards to detection limits. DEQ has calculated numerical health-based standards for each of the eight PFAS substances based on toxicity and/or increased cancer risk associated with ingesting the substance in drinking water. For two of the substances — PFOS and PFOA — DEQ proposed a health-based standard that is lower than the current detection limit. As a result, the detection limit for PFOS and PFOA would continue to be the enforceable groundwater standard since it isn’t possible to enforce a standard below detectable levels. (The health-based standards for PFOS and PFOA could become enforceable in the future if technology advances to detect lower levels of those substances.)

For the other six PFAS substances, the proposed health-based standard would be higher than the detection limit for each substance — in some instances, significantly higher. Adoption of those standards would protect public health, but actually result in a less stringent regulatory standard than using the detection limit. That would benefit a business required to remediate contamination by one of those PFAS substances in groundwater because the ultimate groundwater cleanup goal would be relaxed by comparison to a goal based on the detection limit.

Using the proposed health-based standard for those substances could also benefit the owners of private wells with PFAS levels above the detection limit but below the proposed health-based standard. Those well owners would be reassured that the level of PFAS in their well does not pose a health risk that requires an alternative water supply. It would also remove a cloud over their property that could affect its value since PFAS in the groundwater would no longer exceed the state regulatory standard.

Committee action. The majority in committee today voted to recommend that the full EMC move forward with health-based standards only for PFOS, PFOA and GenX. It was difficult to discern from the discussion any clear rationale for the recommendation to abandon adoption of health-based standards for the other five PFAS when those standards would have provided greater clarity on health risk; reduced the regulatory burden on business; and protected property values.

Next steps. The committee asked DEQ to provide a revised fiscal analysis of the rule package based on adoption of standards for just three of the eight PFAS. The full EMC could then vote (possibly in September) on whether to send the groundwater rule-making package out to public notice. The EMC can accept the committee recommendation or decide to go out to notice with the larger package of groundwater standards proposed by DEQ. The EMC would make a final decision on adoption of some or all of the proposed groundwater standards after considering comments received in response to the public notice.

GenX in the State Budget

June 18, 2018. Instead of acting on the GenX bill described in an earlier post, the legislature inserted GenX provisions into the state budget bill (Senate Bill 99). The provisions adopted in the budget differ from those in House Bill 972/Senate Bill 724 in several key ways:

♦ The budget provision expressly makes a Governor’s order appealable through an administration hearing. (The earlier post noted that a Governor’s order would likely be appealable under the state’s Administrative Procedures Act even if the bill did not specifically mention appeal rights.)

♦ Language has been added to c;larify that the grant of new enforcement power to the Governor does not prevent DEQ and the Environmental Management Commission from also using their existing enforcement power under other state laws to address PFAS. The new language eliminates confusion about the impact on DEQ’s ongoing enforcement cases against Chemours and confirms that DEQ can still go directly to court in future enforcement cases if necessary.

♦ The budget provision reduces the funds appropriated to the UNC Environmental Policy Collaboratory from $8 million to just over $5 million and limits the scope of funded water quality research. Instead of supporting non-targeted monitoring for a broad range of unregulated pollutants, the funds could only be used for monitoring of PFAS.

♦ Funding for monitoring of Cape Fear Public Utility Authority’s water supply has similarly been limited to monitoring for PFAS.

♦ The budget dropped funding for additional resources in the Department of Health and Human Services to evaluate health risks associated with unregulated water contaminants. The earlier House and Senate GenX bills had earmarked over $500,000 for DHHS; under the budget bill, DHHS receives no funding for toxicology and epidemiological study of contaminants in North Carolina’s water supply sources.

Funding proposed for DEQ did not change. DEQ will receive $1.3 million in new funding related to PFAS contamination, although new staff positions created with the funding must be time-limited rather than permanent. The budget also provides funding for a mass spectrometer to be used in analyzing water samples for PFAS. The budget provision, however, specifies a particular type of mass spectrometer that does not have as much technical capacity to identify other unregulated contaminants as DEQ had recommended.

The budget provision continues to require a person (or company) responsible for PFAS contamination to provide an alternative water source to the well owner. The responsibility only exists if releases of the pollutant caused the well contamination. Requiring a causal connection between the pollution release and the well contamination follows the approach taken under existing state groundwater protection rules. It is different from 2016 coal ash legislation that required Duke Energy to provide alternative water supply to well owners within a 1/2 mille perimeter around every coal ash pond even if coal ash disposal had not been proven to be the cause of the well contamination.

What do the changes mean? Since the new Governor’s authority can trigger an administrative appeal (which may take a year or more to reach a final decision), it doesn’t provide a more direct or effective remedy than DEQ’s existing authority to request a court order. As a result, it isn’t likely the new authority will be used often if at all.

Narrowing the focus of the water quality monitoring funded through the UNC Environmental Policy Collaboratory to PFAS has a mixed effect. Investigation of PFAS contamination will receive more resources, but none of the appropriated funds will go to identification of other unregulated contaminants in N.C. water supplies.

Removal of the DHHS funding leaves the department with extremely limited staff resources to evaluate human health risk when regulatory agencies or researchers identify a new unregulated contaminant in a water supply source.

Status. Governor Cooper vetoed the budget bill on several grounds. The House and Senate have overridden the veto, allowing the bill — including the revised GenX provisions — to become law.

GenX Legislation and Unintended Consequences

May 18, 2018. Yesterday, the N.C. House and Senate introduced identical bills in another attempt to legislatively address the impact of GenX (a perflourinated compound) on the Cape Fear River and drinking water wells. See an earlier post for background on the GenX issue. In September of 2017, the Department of Environmental Quality (DEQ) filed a lawsuit against The Chemours Company under existing water quality laws and reached a partial consent order that requires Chemours to end all wastewater discharges of GenX to the river from its Fayetteville facility. The consent order reserves DEQ’s right to ask the court to order Chemours to take additional actions related to GenX groundwater contamination and other violations. DEQ has also reviewed Chemours’ air emissions, which may be another source of surface and groundwater contamination as GenX returns to the ground in rainwater. Based on monitoring results, DEQ has notified Chemours of an intent to modify the plant’s air quality permit. Copies of documents related to the enforcement actions can be found on DEQ’s Chemours enforcement webpage.

The two new bills, House Bill 972 and Senate Bill 724, appropriate money to address GenX and other per- and poly-fluoroalkyl substances (PFAS), but also change environmental enforcement law and require specific steps to address GenX groundwater contamination. This post focuses on the possible unintended consequences of provisions in the bill that affect environmental enforcement and remediation.

Section 1 of each bill creates a specific enforcement provision for contamination caused by GenX or other PFAS by adding a new paragraph to an existing enforcement law, G.S. 143-215.3, authorizing the Governor to order a facility to stop operations resulting in release of GenX or other PFAS. Although the intent may be to provide a quick response to PFAS pollution, the provision may actually slow or undercut DEQ’s ability to pursue enforcement actions against Chemours or a future source of PFAS pollution.

Under existing water and air quality laws, DEQ can direct a facility to stop an illegal wastewater discharge or emission of air pollutants by issuing a Notice of Violation or compliance letter. If the violator fails to comply within the time allowed or DEQ believes the violation creates an imminent threat, DEQ can file a lawsuit and ask for a court-enforced injunction requiring compliance. Last year, DEQ used that authority (see G.S. 143-215.6C) to file an action in superior court against Chemours. The lawsuit has already resulted in a partial consent order to end all wastewater discharges of GenX to the Cape Fear River. Since then, DEQ has continued to investigate the scope of GenX groundwater contamination and has issued compliance letters to Chemours requiring initial steps to address sources of groundwater contamination (such as stormwater drainage). DEQ has the ability to go back to court if Chemours fails to follow through. As the permitting agency DEQ can also address both water and air quality impacts by changing the terms of the Chemours’ permits. DEQ has already notified Chemours of the department’s intent to modify the facility’s air quality permit, presumably to reduce air emissions of GenX.

The new provision in H972 and S724 would allow the Governor to issue an administrative order to shut down releases of GenX or other PFAS. On its face, a Governor’s order sounds like a quicker and more direct way to stop the release of these pollutants. In reality, any order could be appealed in an administrative hearing and the administrative law judge has the power to prevent the order from going into effect until there has been a final decision on the appeal. Although the bills don’t mention the possibility of an administrative appeal, the state’s Administrative Procedures Act (APA) creates that right. (See G.S. 150B-23 for the law on appealing state actions.) An administrative appeal can take as much as a year, slowing enforcement. Under existing water and air quality enforcement laws, DEQ can go directly to court for an injunction instead of issuing an order potentially leading to an administrative appeal hearing.

The new provision raises questions about both the path forward on existing Chemours enforcement actions and the impact on future state enforcement actions in response to release of PFAS from other facilities.

With respect to DEQ’s ongoing Chemours enforcement actions, one question is whether the legislature intends the new provision to be the exclusive remedy for Chemours’ violations, overriding DEQ’s ability to go directly to the courts for an injunction. In the absence of clear legislative language to the contrary, courts can interpret more recent and more specific laws to override earlier and more general laws. The risk would be that a court may interpret the new enforcement provision specifically addressing PFAS pollution to override existing but more general water/air quality enforcement laws. At the very least, the legislation needs to be clear about the relationship between the Governor’s new power and DEQ’s existing authority to go directly to court for an injunction. If the new provision becomes the only enforcement path, the legislation could slow rather than accelerate enforcement against Chemours.

There may also be a need to harmonize the Governor’s power with DEQ’s permitting authority under the Clean Water Act and Clean Air Act. An order affecting wastewater discharges or permitted air emissions will likely require modification of facility permits. Under federal delegations of permitting authority to DEQ, significant modification of a permit usually triggers requirements for public notice and EPA review.

The new provision also limits issuance of a Governor’s order in several ways that don’t apply when DEQ exercises its existing water quality and air quality enforcement authority:

♦ An order could only be issued for a facility that has an NPDES (wastewater discharge) permit. The order could not be used for a completely unpermitted source or to address air emissions causing PFAS pollution if the source doesn’t also have an NPDES permit.

♦ An order could not be issued unless the facility had received more than one Notice of Violation in the previous two years.

♦ DEQ has to make efforts to eliminate the unauthorized discharges for at least a year before an order can be issued.

The conditions were clearly written to cover Chemours. But if a PFAS pollution problem arises at another facility, the provision could hamstring DEQ’s ability to act unless and until all three conditions have been met. Again, this creates a significant problem if the new provision becomes the only enforcement remedy for addressing PFAS pollution.

Many of the concerns raised by Section 1 could be addressed by clarifying that existing environmental enforcement laws/rules implemented by DEQ continue to apply, making the new provision an additional tool rather than the only remedy for PFAS pollution. Even then, it may be necessary to provide guidance on how issuance of a Governor’s order affects both pending and future DEQ enforcement actions under those existing laws.

This section of H972 and S724 has a sunset date of December 31, 2020, which means it would be automatically repealed on that date unless the legislature acts to extend it.

Sec.4(a) Directs DEQ to develop a plan to assess and remediate groundwater and surface water contamination associated with PFAS. Again, the legislation doesn’t explain how the provision affects DEQ’s existing authority especially with respect to groundwater contamination. State groundwater rules require the person who caused the contamination to develop under DEQ supervision – and pay for – a plan to assess and remediate groundwater contamination. The bill language does not mention state groundwater rules or the polluter’s responsibility for assessment and remediation; it appears to put the entire responsibility for an assessment and remediation plan on DEQ. This is likely another unintended result that could be fixed by cross-referencing existing rules describing the polluter’s responsibility for assessment and remediation.

As a practical matter, this is a bigger issue for groundwater assessment and remediation than for surface water pollution. DEQ can often assess surface water impacts by taking in-stream samples and eliminate the impact by simply stopping or reducing the discharge. Determining the extent of groundwater contamination and implementing a groundwater cleanup plan can be much more time, labor and money-intensive.

One other note. Section 2 of the bill authorizes DEQ to order a person responsible for contaminating a drinking water well with GenX or another PFAS to provide a permanent alternative water supply to the well owner. The language looks very similar to the alternative water supply provision in 2016 coal ash legislation. The difference: the coal ash provision required Duke Energy to provide an alternative water supply to every well owner within 1/2 mile of a coal ash impoundment; the GenX provision applies to individual wells on a case by case basis. DEQ would need to order Chemours to provide alternative water supply to an individual well owner based on data linking the well contamination to Chemours as the source. Again, the GenX provision doesn’t mention existing state groundwater rules that already require the person who caused groundwater contamination to “mitigate any hazards resulting from exposure to the pollutants” and restore groundwater to meet state standards. (15A NCAC 2L.0106). On a quick review, the GenX alternative water supply provision seems to be consistent with existing state groundwater rules but does not necessarily provide a speedier path to alternative water supply. In either case, the burden is on the state to establish the cause and effect link between Chemours’ activity and contamination of individual wells.

GenX: The State Enforcement Case

November 14, 2017. An earlier post discussed some of the issues surrounding detection of a perflourinated compound known as GenX in the Cape Fear River and in water systems using the river as a drinking water source. On September 7, 2017, the Department of Environmental Quality (DEQ) issued a Notice of Violation and filed a legal complaint against the Chemours Company alleging violations of the federal Clean Water Act and state groundwater rules related to GenX. This post looks at the specific allegations in the state enforcement case. ( A copy of the entire complaint can be found on DEQ’s GenX webpage.)

One piece of background information — Dupont began manufacturing GenX at the Fayetteville Works in 2009, but transferred the operation and associated environmental permits to the Chemours Company in 2015. The sequence of events surrounding GenX begins under Dupont management, but the enforcement case names only the Chemours Company — the current owner and permit holder — as defendant.

The enforcement case against Chemours makes two basic claims:

1. Chemours violated the Clean Water Act by discharging GenX to the Cape Fear River under a water quality permit that did not authorize any discharge of GenX. The state claims neither Dupont nor Chemours told DEQ that wastewater discharged from the Fayetteville Works to the Cape Fear River would contain GenX and other perflourinated compounds. According to the complaint, state water quality staff understood that the GenX manufacturing plant opened in 2009 would use a “closed loop” system and dispose of all wastewater off-site. In fact, a consent agreement between the U.S. Environmental Protection Agency (EPA) and Dupont under the Toxic Substances Control Act (TSCA) only allowed manufacture of GenX under conditions requiring Dupont to effectively eliminate GenX from both the wastewater discharge and air emissions associated with the manufacturing process.

The complaint alleged that Chemours, in applying for its most recent National Pollutant Discharge Elimination System (NPDES) permit under the Clean Water Act, did not tell DEQ that other operations at the Fayetteville Works generated wastewater containing GenX as a byproduct. (The implication is that Dupont had also failed to disclose the presence of GenX as a byproduct when applying for earlier water quality permits.) Chemours discharged wastewater from those operations to the Cape Fear River.

DEQ alleges Chemours violated the Clean Water Act by failing to tell state permit writers that wastewater from the Fayetteville Works contained GenX (and other perflourinated compounds) and by discharging GenX to the Cape Fear River under an NPDES permit that did not authorize discharge of those compounds.

2. Chemours violated state groundwater standards. According to the DEQ complaint, Chemours’ hazardous waste permit has required groundwater monitoring since at least 2003 and included sampling for PFOA (the older perflourinated compound replaced by GenX ). After detection of PFOA in the Cape Fear River in 2015, DEQ required supplemental groundwater monitoring to determine whether groundwater at the Fayetteville Works could be the source. It isn’t clear from the complaint whether the hazardous waste permit required monitoring for PFOA from the beginning and expanded the scope in 2015 or first required PFOA in 2015. DEQ did not specifically require monitoring for GenX until August of 2017. The initial sampling detected GenX in 13 of 14 monitoring wells on the grounds of the Fayetteville Works.

Under state rules, the groundwater standard for any contaminant that does not occur naturally is the lowest measurable level (the “practical quantification level” or “PQL”) unless the rules set a higher standard based on evaluation of health and environmental risk. Since GenX does not occur naturally and state rules set no other standard, the allowable concentration of GenX would be the PQL of 10 nanograms/liter (equivalent to 10 parts per billion). The 2017 monitoring detected levels of GenX ranging from 519 ng/ltr to 61,300 ng/ltr. All five wells located adjacent to the Cape Fear River had levels of GenX exceeding 11,800 ng/ltr. DEQ found the test results documented widespread groundwater contamination on the Fayetteville Works site exceeding both the 10 ng/ltr groundwater standard and the threshold for human health effects identified by the state Dept. of Health and Human Services (140 ng/ltr level).

Status of the enforcement case. The DEQ complaint asked, in part, that Chemours immediately stop any discharge of GenX and related compounds to the Cape Fear River. On September 8, 2017 (the day after filing the enforcement case), DEQ entered into an agreement with Chemours to resolve the discharge issue. Under a partial consent agreement, Chemours agreed to continue voluntary measures undertaken early in the summer to prevent discharge of process wastewater containing GenX to the Cape Fear River. The partial consent agreement also required Chemours to take similar steps to prevent discharge of two other perflourinated compounds from the “single source of significance” of those compounds at the Fayetteville Works.

The partial consent agreement did not resolve all potential violations at the Fayetteville Works. The consent agreement did not address any of the groundwater standard violations alleged in DEQ’s September 7, 2017 complaint. DEQ also expressly reserved the right to take additional enforcement action in the event of future unpermitted discharges or violations associated with other chemicals. In fact, DEQ issued a new Notice of Violation to Chemours today based on a previously unreported spill at the Fayetteville Works. That NOV alleges that Chemours violated its NPDES permit by failing to notify DEQ of an October 6, 2017 spill of dimer acid flouride ( a precursor to GenX) from the manufacturing line.

Still to come. With respect to the groundwater violations, DEQ’s September complaint asked the court to order Chemours to:

♦ Remove, treat or control any source of perflourinated compounds at the Fayetteville Works that could contribute to groundwater contamination. Consistent with state groundwater rules, that would need to be done under a plan approved by DEQ.

♦ Fully assess the extent of groundwater contamination and develop a plan to address the groundwater contamination. (Again, both the assessment and corrective action plans would be subject to DEQ approval).

It does not appear that Chemours has an approved groundwater assessment plan yet and the groundwater corrective action plan can only be developed once the assessment has been done. In the meantime, DEQ has directed Chemours to provide an alternative source of drinking water to 50 households near the Fayetteville Works whose water supply wells have been contaminated by perflourinated compounds.

DEQ’s September complaint focused on actions necessary to stop the discharge of GenX to the Cape Fear River and address groundwater contamination, but state law also authorizes DEQ to assess civil penalties for these violations. The maximum civil penalty for each violation of state water quality laws or rules is $25,000 and if a violation continues over a period of time, state law authorizes DEQ to assess daily penalties. (N.C. General Statute 143-215.6A.) The actual penalty amount per violation depends on a number of factors set out in the law, including the extent of harm and whether the violation was intentional. In the case of a continuing violation, DEQ would also have to decide what time period merits daily penalties. DEQ usually develops the penalty assessment separately from legal action to obtain compliance and has not yet proposed penalties for the Chemours violations.

Changing Cleanup Standards for Leaking USTs

Oct. 26, 2016. In June, the Department of Environmental Quality (DEQ) released new guidance on remediation of groundwater contamination caused by leaking petroleum underground storage tanks (USTs). The guidance document significantly changes the approach to remediation of high risk UST sites. Under rules adopted by the Environmental Management Commission (EMC), groundwater contamination at high risk UST sites must be remediated to meet state groundwater quality standards if that is feasible. 15A NCAC 2L.0407(b).

The new guidance directs environmental consultants to assume the cleanup standard for most high risk sites will be “Gross Contaminant Levels”, which represent contamination at levels as much as 1000 X the groundwater protection or drinking water standards. The guidance raises a number of questions about the impact of more limited cleanup on groundwater and property owners; consistency with EMC rules; and whether the new guidance should have gone through rulemaking to allow for public comment and adoption by the EMC.

UST Rules. The UST program operates under “risk-based” remediation rules that allow less groundwater remediation on sites posing a low risk to public health, safety and the environment and require more extensive remediation on high risk sites. Existing UST rules require petroleum-contaminated sites to be classified as high, intermediate or low risk based on site conditions and assign a cleanup standard to each risk classification. High risk sites must be remediated to meet the state’s groundwater protection standards to the extent feasible. The groundwater standards set limits for individual contaminants at the level safe for unrestricted use of the groundwater — including use as a drinking water supply. Intermediate risk UST sites only have to be remediated to “Gross Contaminant Levels”, which allow contamination at levels as much as 1000 X the groundwater protection standard or drinking water standard to remain at the end of remediation. Low risk sites may not require any remediation even though contaminant levels greatly exceed groundwater protection standards.

Under existing rules adopted by the Environmental Management Commission, UST risk classifications are based on a snapshot of conditions around the petroleum release and the likelihood that petroleum contamination will reach water supply wells or create some other imminent health, safety or environmental hazard. Under EMC rules (15A NCAC .0406), a UST site is considered “high risk” if:

(a) a water supply well… has been contaminated by the release or discharge;

(b) a drinking water well is located within 1000 feet of the contamination source;

(c) a water supply well not used for drinking water is located within 250 feet of the source;

(d) the groundwater within 500 feet of the contamination source could be a future water supply source because there is no other source of water supply;

(e) the vapors from the discharge or release pose a serious threat of explosion due to accumulation of the vapors in a confined space; or

(f) the discharge or release poses an imminent danger to public health, public safety, or the environment.

New DEQ guidance on high risk sites.
North Carolina Petroleum UST Rel ease Corrective Action Phase Project Management: A Calibrated Risk-Based Corrective Action Decision & Implementation Guide, effective June 1, 2016, moves away from the principle of remediating groundwater at high risk UST sites to meet state groundwater protection standards. Instead, the guidance assumes most sites classified as “high risk” can be remediated only to Gross Contaminant Levels (GCLs).

The guidance document cites data indicating that groundwater contamination plumes contract over time, reducing risk to nearby wells that have not already been contaminated. Based on state laws directing DEQ to consider factors that limit risk to nearby wells, DEQ has directed remediation companies to assume older high risk UST sites can be remediated to Gross Contaminant Levels. Under the new guidance, the key factor will be the stability of the contaminant plume. If the plume has stabilized or become sufficiently predictable for DEQ to conclude the contamination does not represent an expanding threat, the cleanup will largely rely on “monitored natural attenuation” of the contamination (natural reduction in contaminant concentrations over time) and the cleanup standard will be based on the GCLs.

A few observations about the new guidance:

♦ The guidance document acknowledges the new remediation guidelines have been driven by a lack of sufficient state funds to fully remediate even high risk UST sites.

♦ The idea of reviewing high risk classifications based on the age of the site and stability of the plume makes sense, but the new guidance appears to focus on just one risk factor — proximity of the UST’s petroleum release to existing water supply wells. The guidance shifts to much more limited cleanup as long as the plume has stabilized and/or alternative water supply is available to well owners affected by petroleum contamination.

The guidance does not appear to consider another factor listed in the Environmental Management Commission’s risk classification rule — whether groundwater within 500 feet of the UST release may be needed as a future water supply. In areas where groundwater represents the only local water supply source, the EMC risk classification rule intended to protect the groundwater as a potential water supply even in the absence of existing water supply wells. The new guidance document seems to focus solely on the potential impact to existing wells.

♦ Reliance on GCLs as the final cleanup standard means higher levels of petroleum contamination remain in the groundwater at the completion of remediation. In the absence of extended monitoring, making GCLs the default remediation standard for plumes close to existing water supply wells or in areas where water supply wells may be installed in the future transfers risk from the UST owner to nearby property owners. UST risk classifications rely on a snapshot of conditions around the petroleum release. A change in conditions can lower risk (as the guidance document assumes), but conditions can also change in ways that increase risk. Installation of a new water supply well or changed use of an existing well can affect the behavior of the contaminant plume, exposing well users to petroleum contamination. Given that possibility, greater monitoring of high risk sites remediated only to gross contaminant levels may be needed.

♦ Since the guidance document changes implementation of the UST rules, it likely would be considered a “rule” under the state’s Administrative Procedure Act. In addition to creating a presumption that gross contaminant levels will be the cleanup standard for all UST sites — a departure from the existing EMC rule — the guidance document establishes specific triggers for reexamination of an existing site classification. The new DEQ guidance may or may not be good policy, but any policy generally applicable to UST owners and operators would be considered a rule and the Environmental Management Commission has rule-making authority over the UST program. Failure to use the rule-making process also sidesteps any opportunity for comment by UST owners/operators, remediation companies, adjacent property owners or other members of the public on the potential impact of the changes.

♦ The change in UST remediation standards is only the latest step back from protection of groundwater as a water supply resource important to the state’s future. A significant number of North Carolinians rely on groundwater for water supply either; around 50% of the population drinks water from private water supply wells or well-based water systems. Farms often rely on water supply wells for irrigation and water supply for animals. In recent years, the direction of state policy has moved consistently toward less remediation of groundwater contamination because of the cost to the state or the cost to the polluter. The question is whether those cost/benefit calculations given enough consideration to the long-term costs of groundwater contamination.

The Ongoing Controversy Over Coal Ash and Well Contamination

August 21, 2016. The controversy over changing state advice to well owners near Duke Energy’s coal ash impoundments has exploded again over conflicting accounts — within the McCrory administration — of the basis for “do not drink” letters sent in 2015 and later withdrawn. Two earlier posts here and here provide background on groundwater and drinking water standards for vanadium and hexavalent chromium (the contaminant of greatest concern).

In 2015, the N.C. Department of Health and Human Services (DHHS) sent health advisory letters to the owners of wells with concentrations of hexavalent chromium (chromium 6 or Cr-6) above 0.07 ppb. The 0.07 ppb threshold represented the concentration of Cr-6 associated with an increased cancer risk of 1:1 million. In early 2016, the McCrory administration rescinded most of the letters and advised well owners that water meeting the federal drinking water standard for total chromium (100 ppb) should be considered safe to drink. The total chromium standard covers both chromium-3 and the more toxic chromium-6.

Within the last two weeks, the conflict between DHHS and the Department of Environmental Quality (DEQ) over the content of the health advisory letters again made headlines. This post describes the roles of DHHS and DEQ in groundwater contamination incidents; explains the criteria for developing groundwater standards; and makes a few observations on the implications of the conflict for future groundwater contamination incidents.

The role of DHHS in groundwater contamination incidents and development of groundwater standards. When contamination affects drinking water wells, DHHS toxicologists often advise on the potential health effects. If there is no existing drinking water or groundwater standard for the specific contaminant, the toxicologists use established protocols to assess the contaminant’s short-term and long-term health effects. Acute health effects include organ damage, skin rashes, respiratory problems and other short to intermediate term problems. Long-term health effects often focus on increased cancer risk. DHHS may also work with the Department of Environmental Quality (DEQ) to develop a health-based groundwater standard for a contaminant that has no existing numeric standard in state or federal rules. DHHS toxicologists advise rather than regulate. DEQ has responsibility for enforcement of state groundwater standards and oversight for groundwater cleanup.

Cancer risk as a factor in setting groundwater standards and assessing groundwater contamination. Both state and federal environmental agencies consider increased cancer risk as a factor in assessing groundwater contamination and setting goals for groundwater cleanup. North Carolina’s groundwater rules list a 1:1 million increased cancer risk as a primary criteria for setting groundwater quality standards. In 15A NCAC 2L.0202(d), the rules require a state groundwater standard to be based on the lesser of the

(1) Systemic threshold concentration calculated as follows: [Reference Dose (mg/kg/day) x 70 kg (adult body weight) x Relative Source Contribution (.10 for inorganics; .20 for organics)] / [2 liters/day (avg. water consumption)];

(2) Concentration which corresponds to an incremental lifetime cancer risk of 1×10^-6;

(3) Taste threshold limit value;

(4) Odor threshold limit value;

(5) Maximum contaminant level[the federal drinking water standard]; or

(6) National secondary drinking water standard.

Based on recent public statements by DHHS scientists, DHHS and DEQ staff in the Division of Waste Management calculated increased cancer risk associated with Cr-6 exposure using a standard protocol. The two agencies concluded that 0.07 ppb represented the break-point for the 1:1 million increased cancer risk. The DEQ/DHHS calculation of increased cancer risk associated with > 0.07 ppb of Cr-6 then became the basis for “do not drink” letters sent to well owners in 2015.

Health advisories based on groundwater contamination. DHHS has long worked with DEQ staff to advise well owners on health risks associated with groundwater contamination. Both DHHS and DEQ report to the Governor, creating a strong incentive for the agencies to agree on assessment of public health risk. Environmental and public health experts may debate the appropriate standard for a contaminant, but public conflict between the two agencies is extremely unusual and may be unprecedented.

The split between DHHS and DEQ over advice to well owners. According to DHHS scientists, the 0.07 ppb standard for CR-6 based on increased cancer risk reflected the consensus of DHHS public health experts and staff in DEQ’s Division of Waste Management. DEQ leaders, however, encouraged DHHS to advise well owners that water exceeding the 0.07 standard should still be considered safe to drink as long as Cr-6 levels did not exceed the federal drinking water standard of 100 ppb. DEQ publicly raised concerns about the DHHS health advisories in a January 2016 presentation to a legislative committee. The presentation compared the 0.07 ppb standard to the federal drinking water standard and to standards adopted by other states. Within a month after the legislative presentation, DEQ and DHHS sent new letters advising well owners that well water with Cr-6 levels below 100 ppb should be considered safe to drink because the water meets federal drinking water standards. Recent statements by state toxicologist Ken Rudo and state epidemiologist Megan Davies (who has resigned over the issue) make it clear that DHHS public health experts did not believe the existing state and federal standards for total chromium sufficiently protected human health and objected to the revised letters. The 100 ppb standard for total chromium represents an increased cancer risk orders of magnitude higher than the 0.07 ppb standard — 1:700 increased risk of cancer versus 1:1 million increased risk.

Some observations:

♦ The state’s groundwater standard remains 10 ppb for total chromium and the Coal Ash Management Act of 2014 directs DEQ to use state groundwater standards in assessing drinking water wells around coal ash impoundments. DEQ has not proposed a specific state groundwater standard for Cr-6 based on the DEQ/DHHS cancer risk calculation. As a result, the 0.07 ppb standard remains a health advisory rather than an enforceable groundwater standard. The federal drinking water standard of 100 ppb does not apply to either groundwater assessment or evaluation of well safety near coal ash impoundments.

♦ According to Secretary Donald van der Vaart, DEQ does not question the DHHS calculation of increased cancer risk associated with Cr-6. Given the gap between the total chromium standard of 10 ppb and the 0.07 ppb threshold for a 1:1 million increased cancer risk associated with chromium-6, the total chromium standard does not meet a basic criteria for a N.C. groundwater standards — which requires a groundwater standard to be based on the 1:1 million increased cancer risk — and should be reviewed.

♦ State and federal agencies routinely use the 1:1 million increased cancer risk as a criteria for developing health-based standards for permitting and to set environmental remediation goals. Both state and federal programs also recognize that there may be a need to move off the 1:1million cancer risk criteria in individual cases because it is not technically or economically feasible to meet the standard. In those instances, the agency can adjust a groundwater cleanup goal (for example) to reflect the limits of available technology.

Going forward. As a practical matter, the difference between the DHHS health-based standard and the state groundwater standard has no direct enforcement consequences for Duke Energy. For the time being, the applicable state groundwater standard continues to be the total chromium standard of 10 ppb. Under 2016 amendments to Coal Ash Management Act, Duke Energy must provide a permanent alternative water supply to all well owners within 1/2 miles of a coal ash pond which makes both the cancer risk threshold and the state groundwater standard irrelevant to decisions about alternative water supply.

Assuming no change in the state groundwater standard, the 10 ppb total chromium standard will also drive development and approval of groundwater remediation plans for areas surrounding the coal ash impoundments.

The cancer risk threshold for Cr-6 does raise questions about the adequacy of the state’s total chromium standard. The DHHS calculation of cancer risk suggests the existing total chromium does not meet one of the basic criteria for state groundwater standards — protection against a 1:1 million increase in cancer risk.

The public conflict between DEQ and DHHS raises two other questions —

Should state environmental and public health agencies inform citizens of the health risk associated with contamination that meets existing regulatory standards? DHHS public health officials felt an obligation to inform well owners of the higher cancer risk potentially associated with elevated levels of CR-6; DEQ took the position that the warnings were unnecessarily alarming if the well water met federal drinking water standards.

The other question is more technical and would inevitably come up in any reevaluation of the groundwater standard for chromium: Is there any economic or technical reason not to use the more stringent 0.07 ppb standard as the basis for assessing risk of human exposure to Cr-6 in groundwater and setting groundwater remediation goals? The choice of a standard has implications beyond the immediate controversy over coal ash impoundments and so far there has not been a practical critique of the 0.07 ppb threshold based on technology or cost. The reason behind DEQ’s objection to the DHHS 0.07 ppb threshold as a basis for health advisories still isn’t entirely clear since it appears most public water systems in the state meet the DHHS health-based standard. Those that don’t meet the 0.07 ppb standard come much closer than a number of the wells DEQ argued should be considered safe because the water meets the federal drinking water standard of 100 ppb.

Fact-Checking the History of Coal Ash Regulation in N.C.

July 27, 2016. Misunderstanding history makes it more likely the same mistakes will be made again. In that spirit, a fact-check of recent DEQ statements¹ about the history of coal ash regulation in North Carolina:

“In 2007, a previous administration changed landfill laws and specifically exempted coal-ash ponds from many environmental requirements.”

The statement seems to be referring to the Solid Waste Management Act of 2007 which amended landfill siting and construction standards. Two provisions related to coal ash landfills, but nothing in the law directly addressed coal ash ponds. Coal ash was not the main focus of the 2007 law, which responded to several controversial applications to construct new landfills for household waste and construction debris. As a result, the law focused on concerns specific to those proposals — impacts on wildlife refuges and parks; the size and height of waste disposal areas; separation from groundwater; and guarantees the landfill owner could pay for environmental remediation.

The first of two provisions in the 2007 law affecting coal ash allowed utilities to construct a lined coal ash landfill on top of an old coal ash disposal site under specific standards. The second provision exempted coal ash landfills on the site of a coal-fired power plant from some of the new landfill siting requirements. Coal ash landfills located on power plant sites continued to be regulated as industrial landfills under standards that required liners; groundwater monitoring; and setbacks from waters and wetlands. The Department of Environment of Environment and Natural Resources (“DENR”) did not request either coal ash provision.

“In 2009, the state exempted Duke Energy from having to show that its coal-ash ponds were structurally sound. If that information had been required, the corroded pipe under the Dan River coal ash pond might have been found and the spill avoided.”

In 2009, the General Assembly actually repealed a state Dam Safety Act exemption for coal ash impoundments. See Session Law 2009-390. Before 2009, coal ash ponds had been entirely exempt from the dam safety law. Repeal of the exemption made coal ash impoundments subject to the dam safety law for the first time — requiring compliance with dam safety standards; regular state inspections; and DENR review/approval of plans for expansion or repair.

DEQ’s statement may be focused on language in the 2009 legislation that allowed existing coal ash impoundments to “… be deemed to have received all of the necessary approvals from [DENR] and the Commission for Dam Safety for normal operation and maintenance”. In effect, the law allowed impoundments built before repeal of the exemption to continue to operate as if the state had permitted the original construction. Those impoundments, however, would be inspected going forward and required to comply with dam safety orders to address structural deficiencies. On balance, the 2009 legislation greatly increased rather than diminished state oversight of coal ash impoundments under the Dam Safety Act.

The Dam Safety Act amendments did not cause state and federal regulators to miss critical information about the Dan River stormwater pipe that later ruptured. Both the U.S. Environmental Protection Agency (EPA) and DENR dam safety staff became aware of the stormwater pipes at the Dan River impoundment in 2009-2010. Before inspecting N.C. impoundments as part of the federal response to the TVA coal ash disaster, EPA asked electric utilities to provide information on structural conditions at each impoundment site in the state. Maps of the Dan River site that Duke Energy provided to state and federal inspectors incorrectly identified the stormwater pipes as concrete rather than corrugated metal. The error meant state and federal inspectors did not have complete and accurate information as background for the inspections, but not because the 2009 law allowed electric utilities to shield information about the impoundments — it didn’t.

Note: It later became clear that internal Duke Energy inspection reports had flagged the metal pipes at Dan River for attention as early as the 1980s. In accepting a plea deal to a large federal penalty for the Dan River spill, Duke Energy acknowledged a pattern of neglect that included failure to take the advice of its own engineers in 2011 and 2012 to do camera inspections of the stormwater pipes.

“In 2010 federal regulators required leaks from all coal ash ponds to be evaluated. No action was taken in North Carolina for three years.”

By 2010, EPA had taken several steps to get a better handle on coal ash impoundments. In 2009, EPA launched the nationwide effort to assess the structural integrity of coal ash impoundments. Based on information provided by the electric utilities, EPA did on-site inspections of eight higher risk N.C. impoundment sites in 2009-2010 including the Dan River facility. Inspectors from the state’s water quality, waste management and dam safety programs accompanied EPA on most of those inspections. Also in 2009-2010, state dam safety inspectors did an initial dam safety inspection of every coal ash impoundment as the first step in bringing those impoundments under the Dam Safety Act.

On a different track, EPA provided new guidance to states on permitting discharges from coal ash impoundments under the Clean Water Act ; the new guidance recognized that discharges could result from seeps and leaks through impoundment walls. In 2010-2012, the state water quality program began increasing groundwater monitoring requirements for coal ash ponds and revising stormwater permits for impoundment sites. It may be that state programs gave higher priority to structural impoundment problems, groundwater contamination and stormwater permitting in 2010-2012 and lower priority to addressing the water quality impacts of leaks. It is difficult to know without more information.

“In 2011 the state gave Duke Energy approval to use Sutton lake, a recreational area in Wilmington, as a dumping ground for coal ash.”

Sutton Lake has not been used for coal ash disposal. Coal ash from the Sutton Power Plant went into one of two coal ash impoundments; outlets release water from the impoundments to Sutton Lake. Another outlet releases water from Sutton Lake to the Cape Fear River. The earliest Clean Water Act permit for the Sutton Plant accessible on the DEQ website (from 1996) treated the outlet to the Cape Fear River as the permitted discharge point and applied effluent standards there. Although the permit also put water quality limits on discharges from the coal ash impoundments to Sutton Lake, the lake was regulated as a cooling pond — part of the wastewater treatment system — rather than as “waters of the State” protected under the Clean Water Act. Every renewal of the 5-year Clean Water Act permit from 1996 through 2011 continued that approach. Apparently water quality staff revisited the question of whether Sutton Lake should be treated as a cooling pond or as “waters of the State” in 2011, but decided to maintain the approach used in earlier permit renewals. In 2014, the department (now the Department of Environmental Quality) looked at the issue again and concluded — correctly, I think — that the permit should be modified to treat Sutton Lake as “waters of the State” and put effluent limits on discharges to the lake. It isn’t clear why the water quality program and the Environmental Management Commission reached a different conclusion in issuing and renewing earlier permits.

“For many years Duke Energy monitored the water under its ponds and found hundreds of samples that did not meet groundwater standards. Again, no action was taken. In fact, the prior administration created a policy instructing regulators not to fine Duke if the company said it would correct the problem.”

The state water quality program first began requiring comprehensive groundwater monitoring for coal ash constituents in 2009-2010, imposing new groundwater monitoring conditions as Clean Water Act discharge permits for the impoundments came up for renewal. The new conditions covered key contaminants associated with coal ash and required groundwater monitoring to be done under a state-approved plan to insure monitoring wells would be appropriately placed to detect violations. Given the time required to install monitoring wells and collect a full cycle of monitoring results, little data showing a groundwater standard violation related to coal ash would have been available before 2010. None of the groundwater violations cited in DEQ’s 2014 enforcement action concerning the Sutton Power Plant predate 2009; most come from the period between 2010 and 2014.

Before 2009-2010, most of the state’s coal ash impoundments operated without significant groundwater monitoring for decades. Electric utilities built many of the impoundments in the 1960s and 1970s before any environmental regulations applied. In the late 1970s, the state began issuing federal Clean Water Act permits for discharges from the impoundments to rivers, lakes and streams. Environmental regulation focused on the quality of water discharged from the upper layers of the ash ponds to surface waters rather than the coal ash itself. In the 1980s-1990s, the state began putting groundwater monitoring conditions on the discharge permits, but the monitoring focused on very basic parameters. For the Sutton Plant, those parameters were: water level, pH, chlorides, iron, arsenic, selenium and total suspended solids. Groundwater concerns had not yet focused on contaminants specifically associated with coal ash.

Groundwater concerns increased after 2000 as EPA continued to lay the groundwork for a federal coal ash disposal rule. In 2006, electric utilities began voluntarily monitoring for contaminants associated with coal ash in the face of pressure from environmental organizations and expected federal rulemaking. Most of the data from the voluntary monitoring could not be used in state enforcement actions. Under state groundwater rules, a violation exists only if the impoundment causes an exceedence of groundwater standards at or beyond a compliance boundary around the pond. (For most N.C. impoundments, the compliance boundary is set 500 feet from the edge of the pond.) Wells used by the utilities for the voluntary groundwater monitoring had not been placed to document groundwater standard violations at the compliance boundary. But based on the voluntary monitoring results, the state water quality program put broader groundwater monitoring conditions on impoundment permits and required monitoring to be done under a state-approved well-siting plan to insure the data could be used for future enforcement.

The enforcement policy mentioned in the DEQ statement refers to 2010 groundwater enforcement guidance developed by water quality staff. Since the expanded groundwater monitoring requirements applied to facilities that had operated for many years without monitoring, the water quality program developed a policy that put the enforcement emphasis on remediation of contamination rather than assessment of penalties for activities that had been unregulated or lightly regulated for much of the facility’s history.

What the fact-checked history suggests:

It is difficult to contain environmental impacts 20 to 40 years after the fact. Both state and federal regulators struggled to understand and address problems associated with a method of coal ash disposal electric utilities had already invested in and become reliant on by the time environmental impacts became a concern.

The basic arc of state and federal regulation looks like this: In the 1970s, state and federal regulators focused on discharges from existing coal ash ponds to surface waters. There was a quiet period between issuance of the first Clean Water Act discharge permits for coal ash impoundments in the late 1970s through the 1990s. Regulators assumed the electric utilities were maintaining the impoundments properly and indicators of groundwater contamination associated with coal ash had not reached critical mass. EPA began working on a federal coal ash disposal rule in the late 1990s, but abandoned the proposed rule in 2000 in the face of strong political opposition. Between 2000 and 2008, troubling data on groundwater and surface water pollution associated with coal ash ponds accumulated and the 2008 TVA spill undermined confidence in the electric utilities’ maintenance of impoundments. Both state and federal regulatory efforts accelerated in 2008-2009, leading to state permitting changes and renewed efforts to adopt a federal coal ash disposal rule. (EPA finalized the federal rule in 2015.)

The issues surrounding coal ash have not been the responsibility of any one administration or a single branch of government. The history spans multiple governors of both political parties and legislative as well as executive action. Coal ash provisions in the 2007 Solid Waste Management Act came out of direct negotiation between the electric utilities and legislators. In 2009, the General Assembly repealed the Dam Safety Act exemption for coal ash impoundments, but did not move a bill to set comprehensive state standards for coal ash disposal out of committee.

Leaps in state law on coal ash management followed specific crises — the coal ash impoundment exemption from the Dam Safety Act survived until the 2008 TVA spill put a spotlight on poor maintenance. In 2009, the General Assembly had no interest in moving comprehensive coal ash disposal legislation; that only changed after the 2014 Dan River coal ash spill .

By 2009, accumulating evidence of groundwater contamination and other water quality concerns led the state water quality program to use existing permitting authority to require more groundwater monitoring around coal ash impoundments and increase stormwater requirements. Those efforts to use existing permitting tools more effectively laid the foundation for later groundwater enforcement actions.

¹The statements in bold appeared in a recent letter by DEQ Assistant Secretary Tom Reeder to the Raleigh News and Observer.

A Senate Proposal on Coal Ash and Commissions

June 29, 2016. The N.C. Senate quickly brought to committee and then to the floor a new bill attempting to resolve the separation of powers conflict over appointments to the Coal Ash Management Commission, the Mining Commission and the Oil and Gas Commission. (The Governor had vetoed an earlier bill to address the separation of powers issue; see this post for background on the previous bill and the Governor’s objections.)

The new bill, a repurposed House Bill 630 , represents a compromise between the Governor’s Office, the Department of Environmental Quality (DEQ), and Senate leaders. House leaders did not participate in the negotiation and will have to vote to accept the changes for H 630 to become law. A summary of H 630 as it passed the Senate below:

The Commissions. The bill eliminates the Coal Ash Management Commission, leaving implementation of the Coal Ash Management Act entirely to DEQ. The Mining Commission and the Oil and Gas Commission remain, but those laws have been amended to give the Governor power to appoint a majority of the commission members subject to confirmation by the legislature. The bill also slightly modifies the Governor’s power to remove a commission member, adding “for good cause” to existing provisions that allow the Governor to remove a member for misfeasance, malfeasance or nonfeasance. (It isn’t clear how much “for good cause” adds to the Governor’s removal power.)

The bill previously vetoed by the Governor had amended the appointment provisions for all three commissions and clarified the Governor’s power to remove commission members. In vetoing that bill, the Governor’s Office argued that commissions operating outside the Governor’s full direction and control cannot constitutionally make executive decisions. The Governor’s Office also rejected the idea of legislative confirmation of appointees as another violation of separation of powers. Agreement to H 630 suggests the Governor’s Office has softened on those positions, but the price of the agreement may have been elimination of the Coal Ash Management Commission.

Implementation of the Coal Ash Management Act. H 630 also makes significant changes to the 2014 Coal Ash Management Act (CAMA).

♦ H 630 requires Duke Energy to provide a permanent alternative water supply to well owners within 1/2 mile of the compliance boundary around a coal ash impoundment and to well owners in areas where groundwater contamination associated with the impoundment is expected to migrate based on hydrogeologic studies.

♦ By eliminating the Coal Ash Management Commission, the bill gives DEQ complete control over the risk classification of impoundments and approval of final closure plans.

♦ The process for assigning final risk classifications to each impoundment has changed significantly:

— The bill eliminates the list of specific risk classification criteria in the 2014 law, leaving only general language on consideration of “risks to public health, safety, and welfare; the environment; and natural resources”.

— The number of impoundment sites with predetermined risk classifications has expanded from the four sites designated as High Risk in the 2014 Coal Ash Management Act to include an additional 3 sites designated by H 630 as Intermediate Risk. Impoundments classified as High Risk or Intermediate Risk under CAMA must be excavated and the coal ash removed for disposal in a lined landfill or beneficial reuse. Citizen’s suits over coal ash at the three sites designated as Intermediate Risk had ended in settlement agreements requiring excavation and removal of the coal ash in those impoundments.

— H 630 allows every other impoundment site (seven total) to be classified as Low Risk as long as Duke Energy: 1. provides a permanent alternative water supply to potentially affected well owners as required under the bill; and 2. resolves all structural dam safety issues. Under CAMA, Low Risk sites can potentially be closed by dewatering and capping the ash in place instead of removing the ash for disposal or reuse. For those seven sites, a final classification decision can remain open until Nov. 30 2018 (or Nov. 30 2019 if DEQ grants an extension) to allow Duke Energy time to complete alternative water supply projects and dam safety improvements. Impoundments that fail to meet the Low Risk criteria by those dates would automatically be classified as Intermediate Risk.

Having reduced the criteria for Low Risk classification to just the two, the bill provides no opportunity for additional public input before DEQ finalizes those impoundment classifications.

♦ The bill gives DEQ more power over final closure plans. In addition to removing oversight by the Coal Ash Management Commission, the bill allows DEQ to determine the final closure plan rather than simply approving or disapproving a plan proposed by Duke Energy. Theoretically, DEQ could reject a Duke Energy proposal to excavate an impoundment rather than cap the coal ash in place. The bill doesn’t provide criteria for DEQ to apply in making final closure decisions. (The 2014 CAMA had directed the Coal Ash Management Commission to consider economic and technical feasibility; protection of public health, safety, welfare, the environment and natural resources; and potential impact on cost to ratepayers.)

♦ H 630 keeps existing CAMA language prohibiting approval of a cap in place closure plan unless the plan will “prevent…post-closure exceedances of groundwater quality standards beyond the compliance boundary”, but adds an alternative closure standard that may be less protective of groundwater.

Under the new alternative, DEQ could also approve a cap in place closure plan under standards in federal coal ash disposal rules. Unlike CAMA, the federal rule does not explicitly bar use of capping in place if the capped coal ash would be a continuing source of groundwater contamination, saying only that the closure plan must:

Control, minimize or eliminate, to the maximum extent feasible, post-closure infiltration of liquids into the waste and releases of CCR, leachate, or contaminated run-off to the ground or surface waters or to the atmosphere…

[40 CFR 257.100(b). This rule applies to closure of inactive coal ash impoundments, but similar language appears in closure standards for active impoundments.]

The standard in the federal rule does not clearly require a cap in place closure plan to prevent post-closure groundwater standard violations. Allowing use of the federal closure standard could be interpreted to give DEQ discretion to authorize capping in place as long as leaching of contaminants to groundwater will be “minimized” — a lesser requirement than preventing post-closure groundwater contamination beyond the compliance boundary. The challenge will be how to square application of the federal closure standard with groundwater corrective action requirements in other sections of the Coal Ash Management Act.

♦ A new section on coal ash reuse requires Duke Energy to identify three coal ash sites that would each be capable of processing 300,000 tons of ash for cement products — two sites to be identified in January 2017 and a third by July 2017. The bill directs Duke Energy to begin work on contracts/permit applications as soon as possible after identifying the sites and to begin operation within 24 months after receiving permits.

The Senate version of H 630 has now gone back to the House for a concurrence vote.

Coal Ash, Contaminated Wells and Providing a Safe Drinking Water Supply

May 31, 2016. The previous post discussed legislative efforts to resolve the separation of powers conflict still hovering over implementation of the 2014 Coal Ash Management Act. The same piece of legislation, Senate Bill 71, also attempts to fix other problems that have developed around coal ash cleanup efforts. One of the most significant changes in Senate Bill 71 responds to concerns about contaminated drinking water wells near coal ash ponds. The final version of Senate Bill 71 approved today by both the House and Senate gives more well owners the certainty of an alternative water supply. A comparison of Senate Bill 71 to the original Coal Ash Management Act below.

2014 Coal Ash Management Act:

♦ Guaranteed an alternative water supply only to well owners located within 1/2 mile and down-gradient of the coal ash impoundment. Well testing and groundwater assessment done around the impoundments since 2014 have detected high levels of one or more contaminants associated with coal ash, including hexavalent chromium, in wells located up-gradient or side-gradient of the impoundments. Although groundwater usually follows surface topography, the underlying geology and human activity can alter the direction of flow. The alternative water supply provision in the Coal Ash Management Act did not apply to those wells.

♦ The requirement for Duke Energy to provide an alternative water supply was contingent on well sampling showing a contaminant associated with coal ash above the level allowed under state groundwater standards. The lack of a state groundwater standard for some contaminants (including venadium and hexavalent chromium) led to confusion, conflicting advice to well owners, and lack of clarity on the standard DEQ would use to require Duke Energy to provide an alternative water source. For background on the controversy over the groundwater standards see an earlier post here . Many well owners have received bottled water for months because of documented well contamination, but remain uncertain whether DEQ will require Duke Energy to provide a permanent alternative water supply.

♦ The provision on alternate water supply enacted in 2014, G.S. 130A-309.209(c), did not specifically require a permanent solution — such as connection to a public water system — rather than bottled water.

♦ Under the 2014 law, owners of contaminated wells located up-gradient and side-gradient of a coal ash impoundment might receive alternate supplies under the state’s groundwater corrective action rules,. The rules (referenced in the 2014 Coal Ash Management Act) apply to all groundwater contamination incidents and require a company responsible for groundwater contamination to address health risks created by the contamination. The corrective action rules, however, only apply to a person/company shown to be 1. responsible for contamination that 2. exceeds state groundwater standards. Two years after enactment of the Coal Ash Management Act, controversy surrounds the standards for some contaminants and groundwater studies have not yet been sufficient to determine whether the coal ash ponds caused contamination found in up-gradient and side-gradient wells.

Senate Bill 71:

♦ Requires Duke Energy to provide an alternative water supply to the owner of every well located within 1/2 mile of the compliance boundary surrounding a coal ash pond. (The compliance boundary — either 250 feet or 500 feet from the edge of the impoundment depending on its age — is the point at which exceedance of a state groundwater standard would be a violation.)

♦ For wells within 1/2 mile of the compliance boundary around an ash pond, alternative water supply would be required without regard to the location of the well in relation to the impoundment (down-gradient, up-gradient or side-gradient) or demonstration of a groundwater standard violation.

♦ The bill also requires Duke Energy to provide alternative water supply to well owners located outside the 1/2 mile perimeter, but located in an area at risk of contamination because of the projected migration of groundwater contamination.

♦ The bill expressly requires Duke Energy to provide a permanent alternative water supply source and creates a preference for connection to a public water system. The bill allows installation of a filtration system instead if extension of a water line would be cost-prohibitive. The State Water Infrastructure Authority would review Duke Energy’s alternative water supply plan for each impoundment site and make the final decision on the type of permanent water supply.

Several things are notable about the Senate Bill 71 approach. First, the bill provides certainty to well owners that would not have been possible as clearly or as quickly any other way. But the bill is also a reminder that property owners affected by groundwater contamination from other sources have a longer, more difficult and less certain road to a safe drinking water supply.

A Proposal: Insure owners of wells near coal ash sites aren’t exposed to greater health risks as a result

April 18, 2016. An earlier post discussed the confusion over “do not drink” advisories issued — and later withdrawn — for a number of wells near coal ash sites. There continues to be confusion among legislators, state agencies and the public about the correct response to high levels of hexavalent chromium (Cr-6) and vanadium in drinking water wells near coal ash impoundments. This post attempts to clarify some misconceptions and offers a proposal.

First, a clarification about individual contaminant standards. Some legislators understood presentations by the Department of Environmental Quality (DEQ) and the Department of Health and Human Services (DHHS) to mean that there are multiple, inconsistent standards for a contaminant. In fact, the state uses one standard for each contaminant to determine health risk and require groundwater remediation. But as the earlier post explained, the standard may come from Safe Drinking Water Act standards or state groundwater rules. Drinking water standards address a narrow set of contaminants likely to be found in public water systems; groundwater standards cover a broader range of extremely hazardous substances that may become a health threat because of a specific pollution incident.

State groundwater rules list health-based concentration limits for many hazardous substances, but also recognize that a pollution incident may involve a contaminant that does not yet have a groundwater standard. For those contaminants, the rules set the default standard at “non-detect” — any detectable concentration of the contaminant would be a violation. But the rules also create a process for setting an interim groundwater standard that would allow concentrations above detection levels based on an evaluation of health risk. DHHS used that process to develop the interim standards for vanadium and hexavalent chromium (CR-6) that led to “do not drink” advisories for a number of wells near coal ash facilities.

Gaps in the changing state response. DEQ and DHHS offered a two-part explanation for withdrawal of the “do not drink” letters. The two points and some additional context for each:

Levels of vanadium and Cr-6 in the wells do not violate state or federal drinking water rules. Since there is no drinking water standard for either vanadium or Cr-6, this is true as far as it goes. But the lack of a drinking water standard does not imply safety. State and federal agencies have never relied solely on drinking water standards to make decisions about mitigation of health risks at contaminated sites because drinking water standards do not cover many extremely hazardous substances. That is why the process for asking DHHS to set interim state groundwater standards exists. The question should be whether concentrations of vanadium and Cr-6 in the wells represent a significant additional health risk that can be minimized by either providing an alternative water source or remediating the groundwater.
A number of large N.C. public water systems also do not meet the DHHS interim standards for vanadium and Cr-6. The implication has been that the well water is as safe as water supplied to customers of public water systems. In recent weeks, media and public interest organizations have looked more closely at the levels of vanadium and Cr-6 in public water systems as compared to the wells near coal ash facilities. Although some N.C. water systems exceed the DHHS interim standards for vanadium or hexavalent chromium, most water systems appear to meet the DHHS standards. A WRAL news story includes a chart showing both maximum and average concentrations of Cr-6 in public water systems across the state here. DHHS set the interim standard for Cr-6 at 0.07 parts per billion, representing a 1:1 million cancer risk over a lifetime. WRAL’s analysis found that only about one-third of N.C.’s public water systems have average concentrations of Cr-6 exceeding 0.07 ppb. More importantly, those public water systems come much closer to meeting the DHHS standard than a number of the tested wells. The public water systems with the highest average concentrations of Cr-6 had concentrations less than half that of some wells tested near Buck Steam Station.

A proposal: Issuance of health advisories and steps to provide alternative water supply to well owners should be based on comparative health risk.

The discussion of health advisories issued to well owners around coal ash sites has become focused on whether public water systems meet the DHHS recommended standards for vanadium and Cr-6. That is the wrong question. Many (most) North Carolina water systems meet the DHHS standards; those that do not still provide water that is safer than water in a number of the tested wells. Environmental remediation programs exist in part to reduce health risks created by a pollution incident. To the extent well owners will be exposed to greater health risk as a result of groundwater contamination, the additional risk should be eliminated or minimized to the extent possible. The question is not whether all public water systems meet the DHHS standards. The question is whether groundwater pollution has exposed these well owners to greater health risk — and one way to answer that question is to compare contaminant levels in the well water to the nearest public water system. If the public water system provides water with lower contaminant concentrations that translate into lower additional cancer risk and less risk of acute toxicity, the well owner should be provided with advice on the higher risk of drinking the well water. And any person responsible for the contamination should be required to provide an alternative water source.

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Environmental Law and Policy from a North Carolina Point of View