Category Archives: Water

Discussion of water pollution, water supply and the law of water rights

N.C. Enacts Coal Ash Legislation

August 21, 2014.  After two weeks of drama in which the House and Senate had a falling out over one critical provision  and threatened to adjourn without voting on a final bill, the N.C. General Assembly enacted coal ash legislation by strong bipartisan margins in both chambers.  The  final bill now goes to Governor Pat McCrory for signature.  Senate Bill 729  follows eighteen months of controversy over the environmental impacts of the 33 coal ash impoundments located at 14  electric generating facilities  in North Carolina and the McCrory administration’s response to the problems.   Coal ash became an urgent  legislative priority after  a stormwater pipe under an  impoundment in Rockingham County ruptured and spilled more that 30,000 tons of coal ash into the Dan River. (Earlier posts on N.C. coal ash impoundments  and the Dan River spill here and here.)

What Senate Bill 729  Does:

♦ Sets timelines for  conversion from  wet to dry ash handling;  an  end to deposition of  coal combustion residuals (CCRs)  in wet impoundments; and final closure of  all 33 impoundments under  environmental standards.  Nothing in existing state or federal law otherwise requires any of those actions. Under current law, the state  can take enforcement action  to require a utility to address  unpermitted  wastewater  discharges or groundwater standard violations associated with an impoundment, but it is more difficult to effect comprehensive policy change through individual enforcement cases.

Under prior N.C. law, CCRs in a wet impoundment had been considered “wastewater residuals” and  exempt from the state’s solid waste disposal laws.  Senate Bill 729   requires CCRs removed from a wet impoundment  to be disposed of as solid waste.  Unless put to an approved reuse, the  bill requires disposal in a landfill that meets the most current standards  for  industrial landfills (including a liner system, leachate collection,  groundwater monitoring, and financial assurance).

♦  Sets  timelines for groundwater assessment and remediation  for all 33 CCR impoundments.  The state would otherwise have to seek assessment and remediation through enforcement cases. Even in response to enforcement action, existing state  rules generally allow the person (or company) responsible for the contamination to propose a schedule for assessment and remediation.

[Note:  In  litigation over  how state groundwater remediation rules apply to  pre-1984 CCR impoundments, a superior court judge recently interpreted the rules to require “immediate” removal of  coal ash causing  groundwater contamination beyond the compliance boundary. Senate Bill 729 reverses that decision;  see  “Controversies” below.]

♦ Requires the utilities to  identify drinking water wells within one-half  mile down-gradient of each CCR impoundment; test  wells potentially affected by groundwater contamination from the impoundment;  and provide  an alternative water supply if  testing finds a contaminant associated with  CCRs at levels exceeding the groundwater standard.  Under existing law, DENR can use enforcement authority to require a person responsible for groundwater contamination  to  identify and test wells for contamination.  Enforcement actions  focus on conditions at individual sites and the groundwater assessments tend to be more incremental, gradually working out from the known source of contamination and continuing  only as far as testing  shows high levels of contamination. The  comprehensive requirements of Senate Bill 729 may provide more information on well contamination more quickly.

The bill requires the utilities to provide  alternative water supply to any well owner whose drinking water well shows high levels of a contaminant associated with coal combustion residuals.  Without this kind of statutory remedy, a well owner may have to sue for damage to the water supply well — bearing both the upfront costs of  litigation and the burden of proving the impoundment caused the  well contamination. Senate Bill 729  requires  the electric utilities to provide an alternative drinking water supply within 24 hours  and alternative water supply for other purposes (such as bathing) within thirty days based  simply on data showing  that the well water exceeds the  groundwater standard for any constituent associated with CCRs.

♦ Requires the utilities to inspect all CCR impoundments;  report on all wastewater discharges (permitted and unpermitted) ;  and take action to eliminate unpermitted discharges to surface waters on a timeline set in the law. DENR has existing authority to take enforcement action in response to an unpermitted discharge of wastewater to surface waters, but would  normally have to take those actions on a site by site basis. Senate Bill 729 may prompt earlier identification and correction of the violations.

♦  Establishes stricter design, construction and siting standards for large projects  using coal ash as fill for construction projects and puts a moratorium on smaller structural fill projects. (Any project using more than 8,000 tons of coal ash per acres or more than 80,000 tons  total will be considered a “large” structural fill.) Existing  state rules  governing use of coal ash as structural fill have significant gaps. The new law fills a number of those gaps by requiring large structural fill projects to be lined;  have leachate collection systems;   monitor for groundwater impacts and provide financial assurance.  The bill also  establishes new siting criteria for large structural fills, including  setbacks from streams, wetlands, wells and property boundaries.

The bill puts a one-year moratorium on smaller structural fill projects while DENR studies  the adequacy of standards for those projects. The bill allows for two exceptions to the moratorium on small structural fills: 1. voluntary compliance with the new, stricter standards applied to large structural fill projects; or 2. use of CCRs as structural fill for a  public road  project.

♦ Amends the state Dam Safety Act to require Emergency Action Plans for all  high or intermediate hazard dams (including CCR impoundments) and  sets specific inspection requirements for CCR impoundments.

♦ Amends water quality laws to require  earlier notice to DENR and to the public following a wastewater spill that reaches surface waters. Prior law had been unclear about notice to DENR and allowed 48 hours  for notice to the public. Senate Bill 729 requires notice to DENR as soon as practicable  (and no later than 24 hours after the spill reaches surface waters) and to notify the  public within 24 hours. The new notice requirements apply to all wastewater spills and not just those associated with CCR impoundments.

♦ Repeals  much  of a 2013 regulatory reform provision dealing with groundwater contamination. Senate Bill 729   repeals two significant parts of the 2013 law: 1. a  presumption that the groundwater compliance boundary should be at the property line;  and 2.  restrictions on  DENR’s ability to require action inside the compliance boundary to control  groundwater contamination. (See the section on groundwater legislation  in an earlier post  for  more explanation of  what the 2013 provision did and Senate Bill 729 now undoes.)

♦ Imposes a new fee on electric utilities that own CCR impoundments to support implementation of the law. The bill allocates funds for 25 new  positions in DENR to work on coal ash and 5 positions in the Department of Public Safety to support the Coal Ash Management Commission.

Weak Points:

Creating a  new Coal Ash Management Commission in the Department of Public Safety with  authority to overrule DENR decisions on prioritization of impoundments for closure and approval of closure plans — but without the expertise or staff support to make those decisions. The Department of Public Safety has no experience with implementation of state and federal environmental laws and the bill authorizes a small staff of five to support all of the commission’s activities.  Commission appointment criteria do not require any member to have expertise in  groundwater hydrology or water quality  –  likely to be critical in prioritizing sites for closure and approving closure plans.

The bill provides few guiding standards for classifying impoundments based on risk. Risk classification will be one of the most important decisions required under the law  because the classification determines whether coal ash has to be removed from the site or can potentially be capped in place. The bill lists a number of factors to be considered, but provides no guidance on how to translate the  factors into high, intermediate and low risk classifications. Existing state programs that use similar classification systems to guide remediation work  have gone through rulemaking to  adopt specific criteria for defining high, intermediate and low risk. In the absence of rulemaking, the lack of legislative guidance could lead to inconsistent and arbitrary decision-making. Senate Bill 729   identifies four sites for immediate closure and in debating the bill a number of legislators questioned  the basis for prioritizing those four over others with similar environmental problems. Those kinds of question aren’t going to go away when the prioritization process shifts over to DENR and the new commission.

The bill authorizes  the Coal Ash Management Commission to issue variances from the impoundment closure deadlines, although the final version of the bill  allows only one variance of no more than three years for an individual impoundment.

Controversies:

In debate on the final bill, Democratic lawmakers again raised concerns about  the impact on ratepayers if  utilities  try to recover assessment and cleanup costs in a rate case. Senate Bill 729 prevents  utilities from recovering costs associated with an illegal spill (like the one on the Dan River), but only puts a  brief moratorium on recovery of  costs associated with assessment, cleanup and closure of coal ash impoundments.  The moratorium ends January 15, 2015 — before the utilities are likely to have incurred significant costs.  Some  legislators  would clearly prefer to leave the cost recovery issue entirely to the N.C. Utilities Commission; others  suggested  the General Assembly will  have time to revisit the cost recovery issue next session.

A number of environmental organizations have criticized the bill for potentially allowing use of capping in place to close impoundments that have CCRs  in  close proximity to  groundwater. This  issue  nearly derailed the bill completely  as House and Senate conferees tried to reach agreement on a final bill.     Both House and Senate versions of the bill required removal of CCRs from impoundments classified as high or intermediate risk.  Although worded differently, both versions of the bill allowed low risk impoundments to be closed by dewatering the coal ash and  installing an impermeable clay cap over the ash under standards  applied to closure of solid waste landfills  — the practice known as  “capping in place”.   Neither version of the bill  addressed  the concern  that a “low risk” impoundment may  be in close proximity to groundwater, allowing  CCRs to be a continuing source of groundwater contamination even after installation of a cap.

House  members  raised the issue for the first time in conference and proposed  new language to bar  “capping in place” if any part of the impoundment was located below the seasonal high water table. See an earlier post for more on the conflict between House and Senate conferees and the cost concern in the background of  debates over capping in  place. The final bill did not include the language proposed by House conferees, but added a sentence  barring approval of  a “cap in place” closure

…unless the Department finds that the proposed closure plan includes design measures to prevent, upon the plan’s full implementation, post-closure exceedances of groundwater quality standards beyond the compliance boundary that are attributable to constituents associated with the presence of the impoundment.

The new language would allow the utilities to cap in place  CCRs  in close proximity to groundwater as long as the closure plan  includes other measures (such as engineered groundwater remediation systems) to  prevent groundwater standard violations  beyond the compliance boundary.   The language clearly does not provide as high a level of protection  as a separation between the  coal ash  and groundwater — but  would   be consistent  with existing state  rules allowing DENR to approve a groundwater remediation plan based on use of engineered systems  to treat or control the contamination source and prevent groundwater violations beyond the compliance boundary. The question may be the level of confidence in DENR’s review and approval of remediation measures and the utilities’ commitment to long-term maintenance of remediation systems.

A final (related) controversy has to do with  language in Senate Bill 729  to   overrule a recent superior court decision interpreting state groundwater rules to impose more rigid remediation requirements  on waste disposal systems permitted before 1984. An earlier  post discusses the issue and Judge Ridgeway’s decision (now on appeal to the N.C. Court of Appeals) in more detail. In brief, the judge interpreted  state rules to require  immediate removal of the contamination source at any pre-1984 waste disposal site where contamination has caused a exceedance of a groundwater standard beyond the compliance boundary.   At a waste disposal facility, the contamination source usually turns out to be the waste disposed of in the facility  — which  could  be garbage  put in  a landfill or coal ash placed in an impoundment. The judge’s interpretation does not allow the alternative of using engineered groundwater remediation systems to treat or control the source of contamination at these older facilities — something the rules  allow for newer  facilities.

Senate Bill 729 reverses the effect of Judge Ridgeway’s decision by requiring groundwater remediation rules to be applied consistently to all waste disposal facilities without regard to the date of permitting.  Legislative intervention  seemed to be driven  by  some combination of concern about completely foreclosing the possibility of capping coal ash in place  and the impact of the decision on county and municipal waste disposal sites permitted before 1984.

The bill now sits  on the Governor’s desk, waiting for signature or veto.

Rushing Stormwater

July 26, 2014. House Bill 201 (Building Reutilization for Economic Development Act) left the House as a  bill exempting restored buildings from the most recent state energy efficiency standards. The bill returned from the Senate with the addition of significant changes to state stormwater standards and a new exemption from  environmental review under the state Environmental Policy Act (SEPA). The bill received final House approval on July 24  without review by an  environment committee in either chamber.  The House approved the new measure on a vote of 66-42 and the bill will go to the Governor for signature.

The stormwater amendments   affect  a number  of existing state water quality  programs, including rules for development in water supply watersheds; coastal stormwater rules to protect the quality of shellfish waters; and nutrient management strategies adopted to restore water quality in rivers and reservoirs already degraded by excess nutrients. In the last 20 years,  stormwater controls have become increasingly important in reducing the amount of pollution running off developed areas into rivers, lakes and streams  The  bill raises two questions — 1. Will higher intensity development with significantly reduced stormwater controls be consistent with maintaining  water quality (particularly  in sensitive areas near shellfish waters  and drinking water supplies)? and 2. Are the changes consistent with federal Clean Water Act requirements?

What the stormwater provisions  do:

♦ A new definition of “development” excludes  existing built-on area from the calculation of stormwater requirements.

♦  The bill  prohibits the Environmental Management Commission (EMC)  from requiring private property owners to install new or increased stormwater controls on existing development “except as required by federal law” — a savings clause that will raise more questions than it answers.

Excluding existing development from the built-on area calculation for a site   could  allow redevelopment with seriously under-designed stormwater controls. Under existing rules for  water supply watersheds,  low density development (defined as no more than 12% built-on area) does not require engineered stormwater controls; projects exceeding 12% built-on area do.   H 201 would allow a  developer  in a  water supply watershed to  increase existing built-on area  by another 12% before being required to install any engineered stormwater controls. If the added built-on area exceeds  12%, the developer will  only have to provide stormwater controls for the added built-on area.

Using redevelopment of a property in a water supply watershed (but outside the water supply critical area) as example: If  the property  already has 50% built-on area,  H 201  allows the developer to  expand the built-on area by another 12%  with no engineered stormwater controls. The developer could add up to 30% additional built-on area (the maximum allowed under the rules) — for a total of 80% built-on area —  and only provide stormwater control  for 30%. The end result could be  a  property in a water supply watershed that is  largely impervious, but has either no stormwater controls  or stormwater controls designed  for only  a fraction of the stormwater generated by the development.  The EMC’s coastal stormwater rules and rules for municipal storm sewer systems also use the low density/high density approach  (with  different high-density  thresholds), so the bill will have similar results in  those programs.

It is less clear how the bill will affect  stormwater requirements  under nutrient management strategies for impaired waters (including the  Neuse River, Tar-Pamlico River, Falls Lake and Jordan Lake).  The nutrient management strategies address  the stormwater impacts of new development ( including  redevelopment that adds built-on area) by limiting nitrogen and/or phosphorus loading associated with the development activity.  Developers   usually  meet those load limits by either limiting built on area or installing stormwater controls, but the nutrient management rules do not directly link stormwater requirements  to percentage of built-on area.  The  question is whether the provision in  H 201  prohibiting the EMC from requiring a private property owner to provide stormwater controls for existing development would also affect the calculation of  nutrient loading on a redevelopment site where some part of the loading comes from  existing built-on area.   Nutrient management strategies will also be affected to the extent  those rules  loop in other stormwater standards (like those for water supply watersheds) in areas  with specific water quality classifications.

H 201 may not have a significant effect on the existing development rules included in the Falls Lake and Jordan Lake nutrient strategies. Depending on the success of other parts of those  nutrient management strategies,  local governments in the two watersheds could be required to  achieve additional reductions in nutrient loading from  existing developed areas.  Although stormwater retrofits will be one way to meet the reduction targets, the rules give local governments  flexibility  to use a number of strategies to achieve the load reductions and those may or may not include requirements on private property owners.

The savings clause  in H 201  allowing  the EMC to require stormwater controls on preexisting development to the extent required by federal law raises the question of what it means to be “required by federal law”. The  federal Clean Water Act  creates  a framework, but  allows the state to develop  water quality standards appropriate for state waters.  The U.S. Environmental Protection Agency (EPA) has delegated implementation of most federal Clean Water Act programs to North Carolina’s Department of Environment and Natural Resources (DENR),  but   subject to EPA approval and continuing oversight.  Federal law does not dictate the content of state water quality rules, but does require the state to have standards adequate to protect  water quality.  In the programs described above, stormwater controls have played an important role in those standards.  The question  is  whether state water quality  standards  will still be  adequate to  meet the goals of  the Clean Water Act  given  the restrictions  imposed by H 201.

The federal Clean Water Act also requires the state to establish a Total Maximum Daily Load (TMDL) for any pollutant contributing to impaired water quality. The  TMDL caps pollutant discharges  to an impaired water body at a level that will allow the waters to meet water quality standards.  TMDLs must be approved by EPA . State nutrient management strategies for the Tar-Pamlico River, Neuse River, Falls Lake and Jordan Lake have been designed (and approved by EPA) to meet the TMDL requirement for those nutrient-impaired water bodies. Each of those nutrient strategies relies in part on stormwater controls to reduce nutrient loading from new development. By significantly changing stormwater requirements as applied to existing development, H 201 has also changed the TMDLs previously approved by EPA.

Amendments to the Clean Water Act in the 1990s extended wastewater permitting requirements to municipal stormwater discharges, requiring municipalities to get National Pollutant Discharge Elimination System (NPDES) permits for storm sewer systems.  To have permit coverage, federal  rules require  municipalities to put  stormwater controls on new development. The EMC’s  urban area stormwater rules, which  set the minimum requirements for coverage under a federal NPDES stormwater permit, will also be affected by H 201.  It isn’t immediately clear whether the changes required by H 201 will be consistent with federal NPDES stormwater rules.

The  EIS exemption  in H 201 will likely have limited impact (positive or negative).  Under the  exemption, a state Environmental Impact Statement (EIS) would not be required for expansion or new construction that does not increase the footprint of a building or facility to more than 150% of the  previous footprint. (In other words, the total footprint of the expanded facility could be 50% larger than the existing facility without triggering an environment document.)  The State Environmental Policy Act, N.C.G.S. 113A-1, et seq.,  only requires an  EIS for a project that requires a state approval and involves expenditure of public funds or use of public lands. As a result,  SEPA  has a limited impact on private development projects.

For projects  meeting the  SEPA triggers,  DENR   rules already exempt many construction projects. The difference is that   H 201 grants an EIS exemption based  on the size of the expansion project alone and without regard to natural resource impacts. To the extent H 201 has an effect on SEPA reviews, it may be to exclude from review some construction projects that  would otherwise require an environmental document   because of the  sensitive location or amount of stream and wetland disturbance.  Note: some projects  will still trigger an EIS under federal law; the National Environmental Policy Act (NEPA) applies to both public and private projects and the H 201 exemption would have no impact on federal environmental review requirements.

The N.C. House on Coal Ash

July 7, 2014. Last week, the N.C. House approved a  revised version of Senate Bill 729 (Coal Ash Management Act of 2014).  See the 5th edition of the bill on the General Assembly website.   The bill now goes to a conference committee to resolve differences between the House and Senate  bills.   There is little or no disagreement between the House and Senate on the most important requirements of S729.  Usually — although not always —  uncontroverted sections of a bill appear in the final bill.   Only a handful of the House changes  are likely to meet opposition from the Senate and some of those have more political than policy significance.   Under Senate rules,  the  conferees can consider any change  germane to the original bill. House rules allow conferees to consider provisions not in controversy between the two chambers to the extent the Senate rules allow, but require entirely new provisions to go back through a House committee before adoption of the conference report. In any case, comparison of the Senate and House bills should give a fairly clear picture of  the final bill.

 House/Senate Agreement. The House and Senate agree on:

♦  Barring electric utilities from recovering the cost of addressing an illegal discharge to surface waters from a CCR impoundment through a rate case.

♦  Timelines for  assessing all  CCR impoundment sites for groundwater contamination and unpermitted discharges to surface waters. House and Senate bills also have identical  corrective action requirements based on existing state groundwater rules.

♦  Deadlines for final closure of CCR impoundments.   Both bills have the same  deadlines for  converting all N.C. coal-fired power plants from wet to dry ash handling; ending disposal of ash in wet impoundments;  and completing final closure of all 33 CCR impoundments in the state. The bills require final closure of  all impoundments by the end of  2029, but set earlier deadlines for closure of high and intermediate risk impoundments. (Final closure  involves dewatering the impoundments  and taking additional steps — which may include removal of the CCRs from the site — to prevent future groundwater and surface water contamination.)

♦   Priority  for closure. Both the House and the Senate  direct DENR to give four  impoundments  highest priority for closure (Riverbend, Asheville, Dan River and Sutton). Like the Senate, the House voted down a number of amendments attempting to add sites to the immediate closure list. Both bills direct DENR and the Coal Ash Management Commission to prioritize the other 10 CCR impoundment sites for closure based on risk. Neither  bill  provides guidance  on how to translate  risk factors listed  in the bill  into high, intermediate and low risk classifications. Uncertainty about how the risk factors will be used to  prioritize impoundments for closure has caused concern on the part of both the electric utilities and environmental organizations since risk classification also determines the allowable closure methods.

♦  The link between prioritization for closure and the method of final closure.  Under both House and Senate bills,  high and intermediate risk impoundments  must  be closed by permanently  removing the coal combustion residuals from the impoundment for disposal in a permitted facility; removing the CCRs for use in structural fill or another beneficial reuse  allowed under the law; or temporarily moving and storing the CCRs  for disposal in an industrial landfill to be built on the old impoundment site.  Both  bills allow low risk impoundments to be closed by  capping the CCRs in place under closure standards that apply to municipal solid waste landfills.

Duke Energy  has openly worried  about the number of impoundments  that may be classified   as high or  intermediate risk and require  more costly closure plans. Environmental organizations see no assurance in either bill that “low risk” impoundments will necessarily be appropriate for capping in place.

♦ Giving the Coal Ash Management Commission final authority to approve  prioritization of impoundments for closure and the final closure plan for each impoundment. Under both bills, the commission would be  directed to approve a closure plan based on consistency with the law; technological feasibility; and a determination that “benefits to public health, safety, and welfare; the environment; and natural resources outweigh the negative impacts on electricity costs and reliability”.  The last part of the standard — weighing public benefits against impact on electricity costs and reliability — suggests that even a technologically feasible closure plan  approved by DENR as consistent with the law  could be disapproved by the commission based on the impact to electric utilities. The bill  doesn’t  seem to set any  minimum  requirement for protection of public health, safety, the environment and natural resources  to put a floor under the commission’s weighting of public benefits versus utility costs.

♦ Expanding “structural fill” use of CCRs to include mine reclamation, construction of embankments, and greenscapes. Existing state rules allow use of CCRs as fill material to support  a building foundation or other structure (such as a  roadbed or airport runway). Both the Senate and House bills  expand the concept of “structural fill” to include  uses unrelated to  construction, such as reclamation of open pit mines;  embankments; and  greenscapes.  The idea of using CCRs  as  fill material for an open pit mine  would be a particularly significant departure from past structural fill uses because of the volume and depth of the fill project.

♦ More stringent standards for large structural fill projects. New standards require liners; leachate collection systems; financial assurance;  groundwater monitoring; and establish setbacks from surface waters, wetlands, water supply wells and other features.  As noted  below,  the bills differ on the dividing line between large projects and smaller structural fill projects that will be deemed permitted under less protective standards.

♦  A moratorium on new structural fill projects that do not meet the more stringent standards for large projects and a moratorium on construction of coal combustion product landfills on top of old CCR impoundments  under standards in  the 2007 Solid Waste Act. The  structural fill moratorium will be linked to a DENR study of structural fill and other beneficial uses of CCRs. The bills also require a study of the 2007 coal combustion product landfill standards.

♦  Earlier notice  to DENR and to the public when untreated wastewater is discharged to surface waters,  picking up on  a recommendation of the legislature’s Environmental Review Commission. This provision would apply  to all wastewater spills and not just  spills  associated with CCR impoundments

♦  Requiring  an emergency action plan for high hazard and intermediate hazard dams. The emergency action plans would be required for both CCR impoundments and other dams regulated under the state Dam Safety Act.   The House and Senate also  agree on specific inspection requirements for CCR impoundments and a  process for decommissioning CCR impoundments under the Dam Safety Act.

♦  Assessment of a fee on electric utilities that own CCR impoundments to fund DENR and Coal Ash Management Commission activities under the law.

♦  Transfer of rulemaking authority for state solid waste programs from the Commission for Public Health to the Environmental Management Commission.

House/Senate Differences.  Some of the more significant differences that will need to be resolved in conference between the two chambers:

♦  The length of a moratorium on cost recovery for expenses related to CCR impoundment assessment, remediation and closure.   The Senate moratorium would end on January 15, 2015; the House extends the moratorium to December 31, 2016.

♦  Makeup and organization of the Coal Ash Management Commission.  The General Assembly would continue to make a majority of appointments to the 9-member commission, but the  House bill gives the Governor  authority to appoint the chair.   The House also made very minor changes to criteria for appointment to the commission. One of the most significant differences between the House and Senate  may  be the administrative location of the commission. The Senate put the commission under the Department of Public Safety; the House  moved the commission under the Department of Environment and Natural Resources.

♦  A shorter deadline for providing alternative drinking water supply when a CCR impoundment causes well contamination. Both the Senate and the House require the electric utility to provide an alternative water supply  when a water supply well has become unsafe because of groundwater contamination associated with a  CCR  impoundment. The House bill added a requirement that  an alternative supply of drinking water must be provided within 24 hours after DENR confirms that contaminants associated with a CCR impoundment have caused exceedance of  a groundwater standard in  a drinking water well. Alternative water supply for other purposes must be provided within 30 days consistent with the Senate bill.

♦   More alternatives for final closure of  “low risk” CCR impoundments.   The  House bill  allows low risk impoundments to be closed using any of  the methods approved for high and intermediate risk impoundments (removal of ash for landfill disposal; removal of ash for beneficial reuse;  or conversion of the impoundment to an industrial landfill)  or  by capping the coal ash in place under standards for closure of a municipal solid waste (MSW)  landfill. The Senate  restricted closure of low risk impoundments  to the “cap in place” option.

♦  Opportunity for electric utilities to request  a variance from CCR impoundment closure deadlines.  The Senate and House bills  have the same deadlines for final closure of CCR impoundments, but the House bill allows the Secretary of Environment and Natural Resources to grant variances from the deadlines. To get a  variance the electric utility must show that : “compliance with the deadline cannot be achieved by application of best available technology found to be economically reasonable at the time and would produce serious hardship without equal or greater benefits to the public”.   The variance standard  requires a cost-benefit calculation  that weighs cost to the electric utility against the public health and environmental benefits of closure.  In that respect, it is similar to the standard for Coal Ash Management Commission approval of closure plans.  As a standard for granting variances from environmental or public health rules, it is unusual in not requiring any minimum level of protection for  public health, safety and natural resources.  There  seems to be no floor under the Secretary’s authority to give  greater weight to electric utility cost than to the public benefit of closure. The provision also puts no limit on the  extension of time allowed by variance.

♦  The threshold for requiring more stringent structural fill standards.  The House bill lowers  the threshold between structural fill projects that will be deemed permitted and those requiring an individual permit under more stringent standards. Under the House bill, any project using 8,000 tons or more  of coal combustion residuals per acre or  a total of 80,000 tons or more for a single project would trigger an individual permit under more protective standards. The Senate bill set the thresholds at 10,000 tons or more per acre and 100,000 tons or more total.

♦ Addition of  a criminal enforcement provision. The House added a criminal enforcement provision, making it a Class 2 misdemeanor (maximum penalty of $10,000) to make a false statement, representation or certification in any application, report or other document required under the law.

♦  Protecting some information in Dam Safety Emergency Action Plans.  The House bill adds a confidentiality provision  excluding “sensitive public security information” from disclosure under the state’s Public Records Act. The bill specifically protects information that is protected from disclosure under Federal Energy Regulatory Commission rules as “Critical Energy Infrastructure Information”.

♦  Groundwater Compliance Boundaries: The Senate bill repeals  most of a 2013 regulatory reform provision  concerning groundwater compliance boundaries around permitted waste disposal sites. For an explanation of the 2013  legislation, see an earlier post. The Senate  bill   repeals everything except a provision clarifying that each individually permitted waste disposal site should have a groundwater compliance boundary without regard to the date the facility first received a water quality permit. The House  adds new language on groundwater corrective action to the Senate provision.

According to one House bill sponsor, the new corrective action language  intends to reverse a recent superior court decision concerning remediation of groundwater contamination caused by CCR impoundments.  Superior Court Judge Paul Ridgeway reversed a declaratory ruling by the  Environmental Management Commission (EMC) interpreting the  groundwater corrective action rule,  15A NCAC 2L.0106, as applied to CCR impoundments.  Judge Ridgeway concluded that the rule does not give older waste disposal systems  (those first permitted under water quality laws before 1984) the alternative of treating or controlling the groundwater contamination source.  Judge Ridgeway  interpreted the rule to require immediate removal of the contamination source in every case involving groundwater contamination associated with a pre-1984 waste disposal  system.

Most CCR impoundments fall into the pre-1984 category and the Ridgeway decision  seems to require immediate removal of coal combustion residuals that are the source of groundwater contamination beyond the compliance boundary.  See this post for more on Judge Ridgeway’s decision. Since the  rule  applies to all waste disposal sites first permitted before  1984,  Judge Ridgeway’s decision  has  also created  concern among local governments  because of the potential impact on some county and municipal waste disposal sites.

It isn’t possible  to fully analyze the  implications of the House language as compared to the  current groundwater corrective action rule;  the Senate provision; and Judge Ridgeway’s order in this post.   But House bill sponsors have clearly  indicated an intent to reverse  the part of the Ridgeway  decision requiring  the owner of a pre-1984 waste disposal facility to immediately remove a source of groundwater contamination that has migrated beyond the groundwater compliance boundary and allow greater flexibility in measures used to  address ongoing groundwater contamination.

Ecological Flows: Round 3

June 30, 2014. Last week, the House approved a new  version of  House Bill 1057 (originally a study of interbasin transfer issues).  The House  added a new section requiring the Environmental Management Commission (EMC) to study the method used for establishing minimum stream flows necessary to protect stream ecology  — or “ecological flows”. In the meantime, the bill would prevent the Department of Environment and Natural Resources (DENR) from developing river basin hydrologic models based on the recommendations of an ecological flow study just completed in late 2013 — work the  General Assembly itself directed in 2010 legislation.

The state’s Division of Water Resources (DWR) has been  working on  river basin hydrologic models for more than a  decade. The models turn information like  water volume; seasonal flow;  user demand (such as drinking water intakes); and permitted wastewater discharges  into a tool for predicting how water supply will  respond  to different conditions.  Federal relicensing of North Carolina’s hydropower dams prompted development of some of the earliest hydrologic models;  those models became  the basis for new hydropower license conditions.  DWR has completed models  for most of the state’s major river basins; the piece missing from the models has been a placeholder for  water needed to maintain aquatic ecosystems.

State and federal permit reviews for large water supply projects  (like reservoirs and new drinking water intakes) have long required analysis of impacts on aquatic life as well as downstream water users. The analysis has generally been done by the permit applicant on a project by project basis.   Session Law 2010-143 required DENR to characterize the ecology of the state’s river basins; identify the flow needed to maintain the integrity of those ecosystems;  and incorporate the “ecological flow” into each  river basin hydrologic model.     S.L. 2010-143 did not give the “ecological flow” component any regulatory effect; the law simply set in motion a process for looking more systematically at the impact of stream flows on aquatic ecosystems. Even though the law had no immediate regulatory impact,  it immediately encountered opposition from some municipalities  — led by the City of Raleigh —  out of concern that development of ecological flows would  lead to greater limits on public water supply projects.

As required under S.L. 2010-143,  DENR  convened a science advisory board to  recommend a  method for identifying the minimum stream flow necessary to maintain ecosystem integrity in each of the state’s river basins.  The science advisory board included representatives of agriculture, local government, electric utilities, conservation organizations and both state and federal regulatory agencies. The advisory board’s 2013 report titled “Recommendations for Estimating Flows to Maintain Ecological Integrity in Streams and Rivers in North Carolina” just became available in November 2013. The report recommends a   minimum “flow-by” (the percentage of  flow that remains in a stream after allowing for withdrawals ) of 80-90%.  Based on the recommendation, DENR intends  to use 85% flow-by as a planning tool, but will not  change  existing permitted flows or individually determined flow regimes.  DENR  has also indicated  that  more data will be needed before implementing other recommendations in the report. You can find a DWR presentation on use of the science advisory board’s report here .

House Bill 1057  appears to reject outright the work done by the science advisory board and requires the  EMC to do a new review of methods used to establish ecological flows — again based on the provisions of  S.L. 2010-143. The bill also allows the EMC to  create another scientific advisory panel. It isn’t clear what would be accomplished other than a further delay in consideration of ecological needs in river basin wear supply modeling.

In some ways, the ecological flows controversy parallels the earlier (successful) effort to limit use of sea level rise projections in state planning.  Opposition to possible policy changes no longer waits for the actual policy discussion — instead, the opposition has organized to limit use of the  underlying scientific or technical information.

Recycling Wastewater for Drinking Water — Without a Permit

June 19, 2014. In one of many quick changes over the last few legislative days, Senate Bill 163 (“Protect Landowner’s Water Rights”)  entered the telephone booth of the House Environment Committee yesterday and emerged as an entirely different bill entitled “Reclaimed Water as Source Water”.  The House adopted the new version of S 163 today,  making a significant change to state water quality  and drinking water laws with little debate.

The bill endorses the use of highly treated wastewater, classified under  state water quality rules as “reclaimed” water, to supplement drinking water supplies.  The policy makes sense  under the right conditions.  Treated wastewater  already indirectly supplements  drinking  water supplies; many wastewater treatment plants discharge to streams and rivers that also serve as  water supply sources for downstream communities. State reclaimed water rules also allow direct  use of reclaimed water for many non-potable purposes, including  landscape irrigation, easing demand on the drinking water supply.

Senate Bill 163,  as adopted by the House, goes further and  for the first time allows reclaimed wastewater to be used to directly supplement a drinking water supply. The problem — the bill appears to allow a water system to add reclaimed wastewater to a drinking water reservoir without a water quality permit.  If that is the  effect of the bill, it represents a significant change in the way the state protects the quality of drinking water supplies and  likely conflicts with the federal Clean Water Act.

Under the bill,   “notwithstanding any other provision of law, a local water supply system may combine reclaimed water with source water treated to provide potable water supply”  in an impoundment controlled by  the  water system.  The bill does not define “impoundment”,   but under state drinking water rules an “impoundment” means a reservoir.  That interpretation would also be consistent with  other  Senate Bill 163 language describing the addition of reclaimed water  as occurring before the water goes to the water treatment plant.

An impoundment used as a  public water supply source  would  usually be considered a “water of the state” under water quality laws. Most impoundments  have  been created by damming a river or stream segment to store water for  water supply and continue to release water through the dam to maintain downstream flows.  Wastewater  (even treated wastewater) can only be discharged to a water of the state under a  permit that  insures the discharge  will not result in violation of a water quality standards.  Under G.S. 143-215.1, it is unlawful to:

Cause or permit any waste, directly or indirectly,  to be discharged to or in any manner intermixed with the waters of the State in violation of the water quality standards applicable to the assigned classification.

An impoundment used as a drinking water source has specific water quality standards (adopted in state rules) to protect its  use as a water supply. Discharge of treated wastewater to a water supply source can be allowed,  but only  under permitted limits.  Unfortunately, the “notwithstanding” language in Senate Bill 163  seems to sweep away both the requirements of state  water quality permitting laws and the N.C.  Drinking Water Act.  Nothing in the bill itself requires the addition of reclaimed wastewater to be done under a water quality permit  or in compliance with water quality standards for public water supplies. Instead, the conditions in the bill read like a self-contained set of standards that rely on a 20% limit on the proportion of reclaimed water to total water produced by the impoundment  and a minimum  5-day holding time in the impoundment as a substitute for meeting water quality standards.

If — as it appears — the bill allows discharge of reclaimed water to a “water of the state” without a permit, it also  conflicts with federal  law. Many impoundments that are  “waters of the state”  would also be considered “waters of the United States” under the federal Clean Water Act.  Federal law  makes it unlawful to discharge a pollutant into waters of the United States without a Clean Water Act permit — a requirement that state law cannot waive.

Senate Bill 163 will now go back to the Senate for approval or disapproval of the new  House version of the bill.  If the Senate rejects the House rewrite, the bill will have to go to a conference committee to work out the differences between the two chambers.

If the House did not intend to allow the discharge of treated wastewater to a water supply reservoir without meeting state and federal water quality laws, it would be  helpful to clarify  the bill  before final adoption.

NC Senate Debates New Coal Ash Bill

June 16, 2014. The Senate Agriculture and Environment Committee began debating a revised  version of Senate Bill 729 (Governor’s Coal Ash Action Plan) that makes significant changes to legislation proposed by Governor Pat McCrory. The most important new  provisions  are described below.

End disposal of coal ash in wet impoundments. The bill would prohibit construction or expansion of surface impoundments for disposal of coal combustion residuals (CCRs) after June 30, 2014. The bill requires all electric generating facilities in the state to convert to “dry” fly ash disposal or be retired by December 31, 2018 and to convert to “dry” bottom ash disposal or be retired by December 31, 2019. The bill also sets interim deadlines  for ending CCR disposal and stormwater discharges to surface impoundments at facilities that no longer produce coal combustion residuals.

Groundwater assessment and corrective action. The bill sets timelines for groundwater assessment, survey of drinking water wells, and groundwater corrective action similar to those in the Governor’s Coal Ash Action Plan, but  the bill goes on to  require the corrective action plan to restore groundwater in conformance with the requirements of North Carolina’s groundwater rules. (See, Title 15A NCAC Subchapter 2L).

Structural fill. The bill revises the definition of “structural fill” to allow use of CCRs in mine reclamation and construction of embankments. The bill also sets new standards for structural fill projects. Smaller structural fill projects (those using less than 10,000 tons per acre or less than 100,000  total tons) could be “deemed permitted” without an individual permit review based on meeting design and construction standards set in the bill. For these smaller projects, the bill applies standards  essentially identical to those already in state rules. Larger projects would need an individual permit and be required to meet more stringent design/construction standards including: use of an encapsulating liner system; leachate collection; a cap liner; groundwater monitoring and financial assurance.

In a somewhat confusing turn, the bill then puts a one-year moratorium on some structural fill projects. The moratorium has two  exceptions: 1. projects that meet the new standards for large structural fills (i.e. a liner system, leachate collection, cap liner, groundwater monitoring and financial assurance); and 2. use of CCRs as the base for a public road constructed of asphalt or concrete. As a result, some very large structural fill projects could go forward during the moratorium, but smaller projects would be delayed for additional study of the standards that apply to those projects.

Closure of impoundments. The bill creates a new 9-member Coal Ash Management Commission in the Department of Public Safety and gives the commission final authority over decisions about closure of existing surface impoundments. Six of the nine members would be required to have experience or knowledge of engineering; waste disposal; manufacturing; use of CCRs in structural fill; economic development; and electric co-op management. The other three members would be a state resident (no other qualification required); a doctor or person with public health expertise; and a representative of a conservation organization. More on prioritization and closure:

♦ Prioritization for closure. The bill requires all of the existing coal ash impoundments to be prioritized for closure based on a list of factors in the bill and then ties the risk classification (high, intermediate or low risk) to deadlines for closure and to allowable closure methods.  Although DENR would propose priorities for closure, the Coal Ash Management Commission would make the final decision on prioritization of sites. Since the prioritization factors listed in the bill are not weighted in any way, it is not possible to know how many (or which) sites would fall into each risk category.

♦ Alternatives for closure. Understanding how sites will be prioritized for closure becomes important because low risk sites will be given the option of  dewatering and capping the coal ash in place. The bill also requires the Coal Ash Management Commission to study whether it may be appropriate to allow  some low risk impoundments to  remain in their current condition (without either dewatering or capping) if the CCRs have no contact with groundwater or surface water and the site has returned to a “natural” state. A report on the no further action alternative would be due October 1, 2015. Even if  recommended by the commission, additional legislation would still be needed to authorize use of the alternative.

High and intermediate risk impoundments would have to: 1. convert the surface impoundment to an industrial landfill; or 2. remove all  coal ash to a permitted disposal facility off-site; or 3. remove  all coal  ash for use in structural fill or another beneficial reuse. Conversion to an industrial landfill would require temporary removal and then replacement of the CCRs after bringing the disposal facility up to industrial landfill standards. Those standards generally require installation of a liner system, although  current state rules allow the owner/operator to request approval of a different design that would be equally protective of groundwater. The Senate bill goes beyond existing industrial landfill standards in one way; an industrial landfill created on an impoundment site would require a 300-foot setback from surface waters as compared to the 200-foot setback required for other industrial landfills. The bill also requires high and intermediate risk sites to meet the same closure and post-closure requirements applied to municipal solid waste landfills. Those requirements include post-closure groundwater monitoring and financial assurance.

♦ Role of the Coal Ash Management Commission. The commission would have the final word on both prioritization for closure and approval of closure plans.  The bill  directs the commission to approve  a closure plan only if it finds that the plan meets the requirements of the law; is technologically feasible; “and that the benefits to the public health, safety, and welfare; the environment; and natural resources outweigh the negative impacts on electricity costs and reliability”. Under the last criteria, the commission could reject a closure plan based solely on the cost to the electric utility or impact on reliable power generation. Applying the criteria could be extremely complex and unlike the N.C. Utilities Commission, the new commission will have few resources to put toward cost analysis.  The bill does not require any commission member to have expertise on electric utility cost structures and only authorizes a  staff of four.

Preemption of local ordinances. Using language very similar to the preemption section in the most recent fracking legislation (Session Law 2014-4), the bill would limit the ability of local governments to regulate disposal of CCRs. Although local governments could potentially apply development regulations that apply uniformly to all types of development (such as setbacks and stormwater control standards), the Environmental Management Commission would have the authority to determine whether state law preempts a local ordinance regulation affecting coal ash disposal.

Next steps:  The  Senate Agriculture and Environment Committee did not vote on  the bill today. The committee  noticed another meeting for tomorrow at 11:00 and the bill will be back on the agenda for further discussion and possible amendment then. The bill could go to the Senate floor by the end of the week.

First Legislative Response to CTS Corp. v. Waldburger

June 13, 2014.  The recent U.S. Supreme Court decision in CTS Corp. v. Waldburger  effectively denied the North Carolina plaintiffs the ability to seek compensation for property damage and health problems  caused by contamination of their drinking water wells. As noted in an earlier post, the decision  means that a North Carolina law barring  tort claims filed more than ten years after the last act giving rise to the claim will continue to be a significant obstacle for plaintiffs injured by environmental contamination. [See N.C.G.S. 1-52(16)]

The N.C. House of Representatives quickly responded to the CTS decision with proposed legislation. The House  gutted  a Senate bill on appearance bonds, replacing the original bill language with a provision excluding  some tort claims  “caused or contributed to by the consumption, exposure, or use of water supplied from groundwater contaminated by a hazardous substance, pollutant, or contaminant” from the 10-year  statute of repose in  G.S. 1-52(16).   Yesterday, a  House judiciary committee approved the new version  of Senate Bill 574; with no other committee referrals, the bill can go directly to the House calendar.

The bill would clearly benefit plaintiffs in  some  pending  toxic tort cases  — including  Marines who have  filed suit  over contaminated  drinking water at Camp Lejeune.   Presumably, the bill  intends to preserve the nuisance action filed by the plaintiffs in the CTS case.  The only question may come in interpretation of the bill’s effective date clause; the bill applies the exclusion to a pending  action “if there has been no final disposition with prejudice against that plaintiff issued by a court of competent jurisdiction as to all the plaintiff’s claims for relief to which this act otherwise applies”. The Supreme Court decision in CTS v. Waldburger  confirms the dismissal of the plaintiffs’ entire nuisance action based on the state statute of repose, which would certainly be considered a final disposition. If the intent of the bill is to resurrect the CTS plaintiffs’ claims, the effective date language may need to be clarified.

Unfortunately, the current bill draft does not fix the fundamental problem  created  by a 10-year statute of repose for toxic tort claims because it only provides relief to claimants whose last exposure to  contaminated groundwater occurred on or before June 19, 2013.   The bill  keeps  the 10-year statute of repose for damage claims based on exposure to environmental contamination that continues beyond that date or first occurs after that date. The limited exclusion from the statute of repose sunsets completely in 2023.

The same circumstances that made it impossible for the CTS plaintiffs to bring a damage claim within the 10 year statute of repose still exist — groundwater contamination may only be detected years after the last act that caused the contamination; limited state enforcement resources mean  delays  in fully assessing many contaminated sites; and  some of the health effects of groundwater contamination only develop over decades.  Pending cases don’t represent the universe of environmental contamination injuries in the state. New contamination incidents   continue to be discovered with some regularity as development moves into areas with groundwater contamination from past industrial activity or old waste disposal sites.  As noted in the earlier post, it is not unusual for the last act contributing to property damage or health effects from environmental contamination to have occurred more than a decade before discovery of the problem. As long as those conditions exist,  the  10-year statute of repose will  continue to  prevent people who have been harmed by environmental contamination from seeking compensation for personal injury and property damage.

One more piece of background information. Bloomberg News quoted John Korzen (director of the Appellate Advocacy Clinic at Wake Forest University School of Law, which represented the plaintiffs in the CTS case) as saying that only Connecticut, Oregon, Kansas and North Carolina have generally applicable statutes of repose.

Closing the Courthouse Door on Pollution Victims

June 11, 2014. In a case out of North Carolina, the United State Supreme Court has ruled that a state can  cut off the time allowed for someone injured by environmental contamination to sue the person responsible  —  in many cases, closing off any legal remedy before  the  plaintiff even knows about the contamination and the damage it has caused.  The decision in CTS Corp. v. Waldburger   leaves the plaintiffs in that  case without any recourse against the  company alleged to be responsible for unsafe levels of industrial solvents in their drinking water wells.  But unless either Congress or the N.C. General Assembly acts,  the decision also closes the door on many others injured by  environmental contamination.

The facts (as stated in the lower federal appeals court decision).  CTS operated an electroplating facility on Mills Gap Road in Asheville, N.C. from 1959 to 1985 and used a number of toxic chemicals in the manufacturing processes including trichloroethylene (TCE), cyanide, chromium VI and lead. In 1987, CTS sold much of  the 54-acre site to a realty company that in turn sold  the property for residential development.  Twelve years later,  plaintiffs David Bradley and Renee Richardson learned that their home drinking water well  had high levels of two solvents,  TCE and cis-1, 2-dichloroethane (DCE),  associated with increased cancer risk and other health effects.    In 2011,   Bradley, Richardson and 23 other property owners filed a nuisance action against  CTS   seeking  remediation of  the contamination and damages for current and future harm  including reduced property values and potential health impacts.

The legal issue.   Under North Carolina law, there is a three year statute of limitation for personal injury or property damage claims ( in legalese, “torts”).  The statute of limitation only begins to run after the plaintiff knows or should have known of the injury.  But the same law  bars the filing of a tort  claim more than 10 years  after the  last act of the defendant that gives rise to the damage claim  even if the plaintiff did not know of the injury until later.  This kind of outer limit on  tort claims, known as a “statute of repose”,   cannot be suspended even for good cause.  Although the plaintiffs in the CTS case filed suit within three years after first learning of the well contamination as required by the statute of limitation, CTS Corporation’s  “last act” had been the sale of the Mills Gap Road property in 1987 — 22 years earlier. In federal district court, CTS successfully moved to dismiss  the plaintiff’s nuisance action based on  North Carolina’s 10-year  “statute of repose”.

The issue on appeal was whether the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA)   preempts  the state’s 10-year “statute of repose”.   CERCLA sets a federal  framework for response to environmental contamination  caused by hazardous substances,  but Congress  elected to rely on state  laws to provide a remedy for individuals harmed by environmental contamination.   Since environmental  contamination can go undetected for long periods of time and cause injury — such as cancer — that only develops  over  decades,  CERCLA provides that the time allowed to bring a  claim under state tort  law only begins to run when the plaintiff learns or should have learned  of the damage or injury.  CERCLA  § 9658  expressly preempts state laws that use a different starting point for time limitations on  toxic tort claims.

The U.S. Supreme Court decision. The Fourth Circuit Court of Appeals  concluded  that  CERCLA § 9658 preempts both  statutes of limitation and statutes of repose, allowing the plaintiff’s lawsuit against CTS to go forward. The U.S. Supreme Court (after a long discussion of  the differences between statutes of limitation and statutes of repose and the history of CERCLA § 9658) reversed the  appeals court decision and held that CERCLA § 9658 only preempts statutes of limitation.  As a result, North Carolina’s  10-year statute of repose bars property owners near the CTS site from suing the company for  contamination of their drinking water wells. One of the two dissenting U.S. Supreme Court justices, Stephen Breyer, noted the clear implication of the CTS decision, saying that it

 allows those responsible for environmental contamination…to escape liability for the devastating harm they cause, harm hidden from detection for more than 10 years. Instead of encouraging prompt identification and remediation of toxic contamination before it can kill, the Court’s decision gives contaminators an incentive to conceal the hazards they have created until the repose period has run its full course.

Others affected by the CTS decision.   There have been a number of contamination incidents in North Carolina that follow the pattern of late discovery and delayed understanding of human health effects. Two examples:

U.S. Marine Corps Base Camp Lejeune.  In 1982, the Marine Corps discovered  that drinking water from two of the eight water treatment plants on base had high levels of contaminants.   The Tarawa Terrace water system had high levels of  the dry-cleaning solvent PCE (perchloroethylene or tetrachloroethylene).  PCE has been associated with increased cancer risk;   kidney and liver damage; and  reproductive effects.  (The PCE came from an off-base dry-cleaner that had improperly handled its waste.)    The Agency for Toxic Substances and Disease Registry (ATSDR) has estimated that PCE concentrations in water produced by the Tarawa Terrace water treatment plant exceeded the current federal drinking water standard for much of the 30-year period between  November 1957-February 1987. The most contaminated wells were shut down in February 1985.

In 1985,  Camp Lejeune  also  confirmed contamination in wells supplying  the  Hadnot Point water treatment plant.  The primary contaminant was TCE,  but testing also showed elevated levels of  PCE, benzene and other chemical compounds  produced by degradation of TCE.   The Hadnot Point well contamination came from several different sources —  leaking petroleum underground storage tanks, industrial  spills, and old waste disposal sites. ATSDR  has estimated that water from the Hadnot Point system  exceeded current drinking water standards  for at least one contaminant  from  August 1953 until  January 1985.

Between 500,000 and 1 million Marines and family members may have been exposed to contaminated drinking water at the base before the contaminated wells were shut down in 1985.  Information about the contamination and its possible health effects developed slowly.   ATSDR just published the results of a health  study  of Camp Lejeune Marines on February 19, 2014. The study, reported in Environmental Health,  found a 10% higher incidence of certain cancers among Marines stationed at Camp Lejeune  between 1975-1985 as compared to Marines stationed at Camp Pendleton during the same time period.

Nearly 30 years went by between the initial contamination of the Camp Lejeune wells and discovery of the contamination in 1982. Another 30 years  passed between closure of the most contaminated wells and development of information  on  the potential health effects on a large, but transient, population of service members and their families.  Given the many different parties potentially involved — the owners and operators of several different contamination sources and the Marine Corps  as the water system operator — it may be difficult to pinpoint the timing of every “last act” contributing to injury.  But given the 60-year history of events at Camp  Lejeune, the CTS decision may well remove any legal remedy for Marines harmed by the drinking water contamination.

Stony Hill Road TCE Contamination, Wake Forest. In 2005, the Wake County Health Department found TCE in a drinking water well serving a home on Stony Hill Road in Wake Forest.  DENR’s Division of Water Quality tested six nearby wells, but  found no additional contamination.  The the  one contaminated well was closed and DENR  shifted its efforts to finding the person (or company) responsible for the contamination. Soil tests suggested that a property next door to the one contaminated well  had been the  source of the TCE contamination; two  circuit board assembly companies had operated on the property.  When DENR received no response to repeated requests  for the   owner  to  assess the extent of the groundwater contamination coming from the property,  DENR initiated another round of state well  testing in 2012. The 2012 tests revealed another contaminated well, triggering a broader  well testing program carried out with the help of the U.S. Environmental Protection Agency. The 2012 tests  ultimately found TCE in 21 residential wells; 14 wells  had levels of TCE over the federal drinking water standard.

Seven years had passed between identification of the first contaminated well on Stony Hill Road and confirmation that  contamination had spread to nearly two dozen other wells.  Since the 2005 testing found only one contaminated well located immediately next door  to the likely contamination source, Stony Hill Road had been considered low risk and fell down the list of hazardous sites competing for  the attention of  DENR’s  Inactive Hazardous Sites program. The state’s Inactive Hazardous Sites Act, N.C. General Statute 130A-310 et seq.,  also has weaknesses that  make it possible for a polluter to simply wait  — taking no action to fully assess and remediate contamination until DENR forces the issue through an enforcement order.  Given limited state resources and a need to prioritize sites based on known risk,  ten years can easily go by before  a contamination incident is fully assessed.

Response to the CTS decision. The U.S. Supreme Court decision dealt with a narrow issue — interpretation of  the CERCLA provision on statutes limiting the time to file a damage claim based on environmental contamination. Seven justices concluded that Congress had not intended for the provision to affect state statutes of repose; the two dissenting justices disagreed.  Congress has the power to make the intent of the federal law more clear and remove any doubt about the impact on statutes of repose. Closer to home, the N.C. General Assembly has the power to amend state law to remove the 10-year limitation on damage claims arising out of environmental contamination. Otherwise, North Carolina citizens will continue to be caught in a Catch-22 — too few state resources to insure  that people potentially damaged by environmental contamination will  know  in time to use the legal remedies available and state laws that encourage polluters to wait until the clock runs out.

Beyond Coal Ash – Other Environmental Bills

For those of you making scorecards and tracking sheets for  2014 legislation, a list of other bills on energy and the environment filed  so far; some  bills have already  been  introduced in both chambers:

Environment. The first six bills listed below   were recommended by the House/Senate Environmental Review Commission (ERC).    The last, House Bill 1105,  came out of a House/Senate legislative study commission on land development.

House Bill 1081 (Senate Bill 765)  addresses several  concerns about  state and local permit review of engineering plans.  An engineer submitting an innovative design proposal to a state or local permitting agency will have the opportunity to elevate the  permit review to a supervising engineer.  The bill also allows the permitting agency to charge the applicant for a third-party engineering review if the agency does not have a staff engineer qualified to review the innovative design.  The bill makes other less significant changes. The bill requires  permit reviewers to clearly distinguish necessary design changes  from suggested changes and  cite the law or rule that makes a design change necessary for permit  approval. The bill also directs permitting agencies to review working job titles for permit reviewers  to insure only PEs have “engineer” job titles. For more on the history of these proposals, see an earlier post.

House Bill 1057 (Senate Bill 757)  requires the Department of Environment and Natural Resources (DENR) to study several  issues related to transfer of water from one river basin to another  or “interbasin transfer” (IBT):  1.  Whether  temporary and emergency interbasin transfers, including transfers to relieve water shortages caused by drought, should be regulated differently  than long-term interbasin transfers; 2. Whether interbasin transfers between river sub-basins should be regulated differently  than interbasin transfers between major river basins. and 3. Whether there are types of interbasin transfers that should be exempt from state approval or  other regulatory requirements.

Interbasin transfers  usually  involve piping water from a drinking water source in one river basin to  a water system in another, although some large water systems cross river basin boundaries  and need an IBT just to serve  system customers. An  IBT  of  2 million gallons per day or more requires a certificate of approval from the Environmental Management Commission (EMC). Rather than using the boundaries of the  17 major state river basins,  the  IBT law requires  a certificate for any transfer among  38 sub-basins.  Over the last seven years, a series of legislative changes have made the IBT approval process increasingly difficult.   The House and Senate IBT bills signal an interest in reexamining some of the restrictions.

House Bill 1058 (Senate Bill 756) directs the General Assembly’s Program Evaluation Division (PED) to study: 1.  the benefits of combining water and sewer systems into larger, regional entities; 2. potential incentives for systems to merge; and 3. the possibility of  allowing one system to apply for grants  on behalf of  a less efficient  system  based on a commitment to purchase, interconnect  or enter into a joint management agreement with the less efficient system. The idea of encouraging merger of  small water systems and wastewater  systems into larger, more efficient utilities  has popped up in just about every legislative session for a decade or more.  The biggest obstacles tend to be local resistance and the financial burdens  associated with the takeover of  a small, inefficient system often badly in need of capital investment.  The last of the three PED study issues (allowing one system to apply for grants on behalf of a system targeted for takeover) may be focused on removing the financial disincentives.

Senate Bill 737 (Amend Isolated Wetlands Regulation). “Isolated wetlands”  fall outside the federal Clean Water Act permitting program for wetland impacts because the wetlands do not have a connection to navigable waters.  (Congress adopted the Clean Water Act  under its  authority to regulate interstate commerce and  limited federal regulatory jurisdiction to navigable waters used in interstate commerce.)   In response to pressure from realtors and developers to eliminate state  protection of isolated wetlands,  S737  allows additional  impacts  to isolated wetlands without  prior state permit review.  State water quality rules  now allow  development impacts  to  isolated wetlands below specific thresholds to be “deemed permitted”.  S737 raises those thresholds from 1/10th of an acre to 1/3 of an acre west of Interstate 95 and from 1/3 of an acre to 1 acre east of Interstate 95.  (I-95 has long been used as the  dividing line between the wetter eastern counties and drier piedmont/western counties.)  DENR has expressed concern that raising the  threshold to 1 acre east of I-95 will effectively eliminate review of projects impacting isolated wetlands in the eastern part of the state. S737 also reduces the amount of mitigation required for isolated wetland impacts (from a 2:1 ratio to 1:1) and eliminates the  practice of giving more mitigation credit for creation or restoration of wetlands  than  for preservation of existing wetlands.

Senate Bill 738 (Clarify Gravel Under Stormwater Laws). In 2013, the N.C. Homebuilder’s Association successfully lobbied for legislation directing  the state stormwater  program to  treat gravel areas as “pervious” (meaning the surface allows water to percolate through to the soil beneath) and exclude  them  from the calculation of built-upon area on a development site.  The amount of built-upon area determines the level of stormwater control required for the project, so excluding gravel areas from the calculation  potentially  reduces stormwater costs.  The 2013  provision  (included in  Session Law 2013-413)  also directed the ERC to study “how partially impervious surfaces are treated in the calculation of built-upon area under [the stormwater] programs”.    Ironically, the ERC study found: 1.  no consensus on  the definition of  “gravel”; and 2. evidence that permeability is a function of several factors, including the nature of the substrate and method of installation as well as the surface material itself.  Instead of further weakening stormwater control requirements,   the  ERC bill recommends repeal of the 2013  provision declaring  gravel areas to be pervious and  funds a study of the permeability of different surface materials to be done by the North Carolina State University Department of Biological and Agricultural Engineering.

Senate Bill 734  (Authority to Adopt Certain Ordinances).  The  Regulatory Reform Act of 2013 (Session Law 2013-413)  put  a one-year moratorium on local environmental  ordinances and directed the ERC  to study  local authority to adopt environmental ordinances. The  moratorium/study  provision represented a compromise  between the House and the Senate after the Senate  passed  a bill (Senate Bill 112) putting significant restrictions on local environmental ordinances.

An ERC working group looked at the issue  of local authority through the lens of actual conflict between local ordinances and state or federal environmental  rules.  The legislators identified only one  conflict — local ordinances on use of fertilizers regulated by the N.C. Department of Agriculture and Consumer Services.  Based on the working group recommendation, the ERC  proposed  a limited bill addressing state  versus  local authority to regulate fertilizer use. The bill also  directs  DENR and the Department of Agriculture to  report back in  November 2014  and again one year later on any  local ordinances that  “impinge on or interfere with” state rules.  Supporters of S112   almost certainly want something more.  It seems clear the intent of S112 was to prevent  local government from imposing  additional environmental requirements on developers  and not simply  to avoid conflict with state rules.

House Bill 1105  amends the section of the  state Sedimentation Pollution Control Act that allows DENR to delegate  authority to a local sedimentation program. The amendment transfers responsibility for enforcement of previously approved erosion and sedimentation control plans from DENR to the local government when DENR approves a local program.

Energy

House Bill 1055   would appropriate a total of  $5 million to North Carolina State University and UNC-Charlotte  for research on renewable energy, energy storage, and coal ash reuse.  The bill sponsor,  Rep. Mike Hager,  spent much of the 2013 session   in an unsuccessful effort  to repeal  the state’s renewable energy portfolio standard (REPS).  (You can find the first of several  posts on the 2013 REPS repeal bill here.)  Some of the 2013 combatants  have already signaled an intent to  continue the battle for  repeal  of the REPS standard.    That  very fresh legislative history makes  Rep. Hager’s  proposal to  fund research on renewable energy  somewhat surprising.

Senate Bill 786, (The Energy Modernization Act).  The bill proposes so  many changes to state law on  oil and  gas exploration and development that it merits a separate  post. (To follow.)

ERC Recommends Environmental Legislation for 2014

April 10, 2014. In March, the N.C. General Assembly’s Environmental Review Commission (ERC) provided a first look at legislative proposals for the 2014 session. See an earlier post for more detail on the draft bills  presented to the ERC on March 12, 2014.  Yesterday, the ERC  voted to  approve a legislative package that included all of the proposals first presented in March.  There had been few changes  since  then;  the  bill on state review of engineering plans was the only environmental bill that had revisions. The ERC also approved one additional bill to remove small  areas currently included in several state parks and natural areas.

A few notes from yesterday’s discussion of the draft bills.

Stormwater: The ERC  endorsed a bill to repeal a 2013 legislative provision  that required the state’s water quality program to exclude gravel areas from the calculation of  impervious surfaces on a development site. (See the  March 19  post for more on impervious surfaces and  stormwater requirements.) Repealing the 2013 provision will again allow water quality staff  to make individual judgments about the permeability of  different combinations of aggregate material, substrate and installation method. ERC co-chair Ruth Samuelson noted a  DENR  concern about lack of funding for a  study required by the bill and suggested funding could be  addressed during the legislative session.

Isolated wetlands: The ERC also approved a  bill to allow somewhat greater development impacts to “isolated” wetlands without a state water quality permit. (Isolated wetlands fall outside federal Clean Water Act permitting jurisdiction.) The ERC bill would raise the thresholds for triggering prior state review of isolated wetland impacts and  reduce  mitigation requirements for larger projects  that require  an individual state permit.  The March 19 post provides more detail on the isolated wetlands bill draft; the bill has not changed since then.

Rep. Samuelson mentioned a  DENR  concern about raising the permitting threshold for wetlands in the eastern part of the state to one acre, but there was no further  explanation or discussion of the department’s concern.  (No one from DENR spoke during the meeting.) Rep. Samuelson also noted  a question from the  N.C. Homebuilder’s Association  about the relationship between the  ERC bill and  review of surface water and wetland rules under the Regulatory Reform Act of 2013.  Samuelson suggested the ERC may need to  think more about how the two fit together.   (More on the rule review and re-adoption requirements here.)   The N.C. Homebuilder’s Association has pushed unsuccessfully for  legislative  repeal of the state’s isolated wetlands rules in the past and sees the rule review process as another way to remove the rules.  The real question being asked by the Homebuilder’s Association is whether the ERC bill (a compromise that reduces isolated wetland permitting requirements without eliminating  protection completely) may stand in the way of complete repeal of the rules.

Review of engineering work: Since March, legislators made  some  technical and clarifying changes to the proposed bill on state and local permit review of engineering plans. Those changes largely involve definition or clarification of  terms used in the bill.

Local environmental ordinances: The bill draft approved by the ERC  remained unchanged since March. The bill immediately repeals a 2013  moratorium on local environmental ordinances  that impose stricter standards than  federal or state environmental rules. (The 2013 provision sunsets on October 1 2014 in any case.) The bill  approved by the ERC continues to focus on a narrow set of circumstances where a local ordinance actually conflicts with state or federal standards and identifies one  specific conflict between local fertilizer ordinances and rules adopted by the Department of Agriculture and Consumer Services. Otherwise, the bill directs  state environmental agencies to continue  to review new local ordinances for actual conflict with state rules and report back to the General Assembly in the fall of 2014 and again in 2015.

See an  earlier post for more on the controversy over local environmental ordinances;  the relationship between federal, state and local standards; and a 2013 Senate bill supported by the N.C. Homebuilders Association  that proposed much tighter limits  on local authority. Discussion in the ERC meeting suggests members may be making different assumptions about the scope of the proposed ERC bill. Legislators  who had worked on the bill draft consistently talked about identifying local ordinances that “infringe” on state authority; questions from other ERC members sometimes talked in terms of local ordinances that “overlap” state rules.

Reporting wastewater spills:  This  bill draft also remained unchanged since the March meeting. The bill requires reporting of a wastewater spill to DENR and to the public within 24 hours after the spill reaches surface waters — clarifying the duty to report to DENR and reducing the time for public notice from 48 hours to 24 hours.   At the March ERC meeting, Rep. Pricey Harrison  suggested requiring immediate reporting to DENR; that change was not made.

“Terminating” executive orders.  The ERC also approved a bill to “terminate” an executive order issued by Governor McCrory concerning  enforcement of standards for vehicles transporting solid waste.  Co-chair Samuelson indicated the bill may also become a vehicle for legislative action on executive orders issued by previous governors.   A future  post will go into greater detail on  the  controversy surrounding  the McCrory executive order and constitutional issues raised by a legislative attempt to “terminate” executive orders.

Removal of land from state nature and historic preserves: The  one new bill considered by the ERC yesterday makes adjustments to  lands included in several state parks and natural areas.  The General Assembly sometimes removes areas from state parks, natural areas  and historic sites to reflect  boundary adjustments or to accommodate road rights of way. The ERC bill would delete a total of  just under 1 acre from  Crowder’s Mountain State Park; the deletions appear to be boundary adjustments.   The bill removes  approximately 1/4 acre from Jockey’s Ridge State Park, referencing a surveyed easement for the Town of Nags Head.  The bill also deletes  7.26 acres from Gorges State Park for a state highway project and  3.39 acres from Lumber River State Park for a secondary road project. The final deletion would remove an unspecified  acreage  in the Lower Haw  State Natural Area in Chatham County. (The bill references the tract by deed book and page number, but has placeholders for both the acreage and specific property description.)  For the Lower Haw  State Natural Area deletion, the  bill  simply refers to removal under G.S. 113-44.14.  The  statute allows DENR to recommend removal of a state park if  “the major purposes of a park are not consistent with the purposes of [the State Parks Act]”.

Note: All of the the bill drafts recommended by the ERC  can be found  in the ERC  handouts for April 9.

To be continued:  The ERC did not take up any legislation related to coal ash. A special ERC meeting has been schedule for 1:30 p.m. on April 22 to receive an update on coal ash, but ERC co-chair Ruth Samuelson could not say whether legislation would be considered at that meeting.