The Governor’s Coal Ash Bill

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

What the Bill Does:

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

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

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

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

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

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

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

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

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

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

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

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

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

What the Bill Does Not Do:

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

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

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

Of Leaking Garbage Trucks and the N.C. Constitution

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

1. What is the controversy behind Executive Order 22?

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

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

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

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

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

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

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

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

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

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

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

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

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.

Landslide

April 7, 2014.   The recent mudslide in Oregon that killed at least 30 people  occurred in an area with a history of slides extending back to the 1940′s.  A series of studies, including  a 1999 U.S. Army Corps of Engineers report,  warned of  the potential for catastrophic failure of the slope.  After receiving another report on the landslide risk from private consultants in 2004,  Snohomish County considered  creating a program to buyout  homes in the area at greatest risk. In the end, the county chose to do a slope stabilization project instead.  (See this Seattle Times article for a history of the Oregon slide area.)

The Oregon disaster has raised (again)  questions about landslide risk and the role of  state and local government in responding to those risks. The questions about availability of landslide hazard information;  communication of risk to property owners and homebuyers;  and the need for regulation of development  on steep slopes have very recent echoes in North Carolina policy debates.

North Carolina can have  hundreds of landslides a year — most in the mountainous western part of the state.   According to this report by WSPA news, the N.C. Geological Survey  estimated 300  landslides, rock slides and slope failures in 2013. Slides in uninhabited areas may do little damage, but the state also has a history of large, dangerous landslides  causing  millions of dollars in property damage and  a number of deaths.  Rock slides periodically close interstate highways and sections of the Blue Ridge Parkway, impeding transportation in western counties for months and requiring costly repairs.

PANORAMIC PeeksCr

Panoramic photo of 2004 Peeks Creek landslide, Macon County, N.C. (noaa.gov)

In 2004, the state experienced over 100 landslides  triggered by just two heavy rainfall events associated with  back-to-back hurricanes (Frances and Ivan).  In September 2004, a slope failure following Hurricane Frances  destroyed one home in a subdivision near Boone and caused eight others to be condemned for occupancy.   The same storm caused a slope failure and debris flow that destroyed a home in Burke County and left a  home in McDowell County on  the edge of an eroded slope. A  week after  Frances, Hurricane Ivan rainfall caused slope failures and debris flows that destroyed homes in Buncombe and Macon counties. The Macon County event  (known as the  Peeks Creek landslide) began near the top of Fishhawk Mountain  and barreled 2.25 miles down the mountain at an estimated  30 miles an hour.  The Peeks Creek disaster  destroyed fifteen homes, killed five people and injured two others.  The event also  caused state and local officials to take steps toward identifying landslide risk for the first time.

PeeksCreek

Photo of Peeks Creek slide damage (N.C. Dept. of Public Safety)

For more information on the Peeks Creek disaster, see the N.C. Geological Survey report and an  analysis by the National Oceanic and Atmospheric Administration.

After the Peeks Creek slide, the N.C. General Assembly earmarked  funds from the 2005 Hurricane Recovery Act  to start a state landslide hazard mapping program focused on 19 western counties.  Five N.C.  Geological Survey employees began mapping landslide hazard areas in the counties considered to have the greatest landslide risk. By 2010, state geologists had completed landslide hazard maps for four counties (Macon, Henderson, Watauga and Buncombe), using information on historic landslide locations,  soil types and slope data.   The maps can be accessed through links on the N.C. Geological Survey homepage.  

As  state geologists worked on the first landslide hazard maps, the N.C. General Assembly considered several bills to address development on steep slopes.   The 2007 Safe Artificial Slope Construction Act (House Bill 1756)   would have required local governments to  set standards for development on artificially-created steep slopes. The bill also proposed to amend real estate disclosure laws to require notice  to a prospective purchaser of  location  in a landslide hazard area  identified on N.C. Geological Survey maps. The bill encountered resistance from some mountain-area local governments as well as realtors and developers and  never got out of committee. A 2009 bill (also titled the Safe Artificial Slope Construction Act) took a step back and simply proposed a legislative study committee to look at the need for statewide artificial slope construction standards  and disclosure of natural landslide hazards to prospective purchasers. The 2009 bill also failed to get out of committee.

Against this background of resistance to state action on steep slope construction standards and disclosure of natural landslide hazards, the 2011 General Assembly defunded the landslide hazard mapping program. The budget cut  eliminated four of the five landslide hazard mapping positions and brought state mapping efforts to an end.

As the state backed away from any role on landslide hazard mitigation, some local governments in the western part of the state  (including Macon County)  moved ahead with  ordinances on steep slope development.  A few of the 15 counties the N.C. Geological Survey mapping program did not reach have  attempted to map landslide hazard areas using other funding sources.  

The state has returned to the more limited  role of emergency response and disaster relief.   Basic property insurance does not cover landslide damage.  In the 2005 Hurricane Relief Act, the N.C. General Assembly allocated over $200 million in state funds for disaster relief largely focused on western counties that experienced flooding and landslide damage from Frances and Ivan. Uses of the disaster relief funds included “housing buyout and relocation assistance for those persons whose homes were destroyed or severely damaged by debris flows or whose homes are located in a landslide zone”.

A Preview of 2014 Environmental Legislation

March 19, 2014.  On March 12, the N.C. General Assembly’s Environmental Review Commission (ERC) met to hear reports from several  working groups created to follow up on 2013 legislative issues. [The ERC is a joint House/Senate committee that meets between legislative sessions to study and develop  legislation on environmental issues.]  The reports included recommended legislation, but the ERC did not really discuss  the  bill drafts. The ERC will vote on legislative proposals for the  2014 session  in April.  The working group bill drafts   represent a starting point for development of 2014 legislation; the ERC co-chairs indicated a willingness to consider changes to  the  proposals  before voting  on April 3 to approve  a package of  2014  ERC  bills.  With the understanding  bill drafts may change between now and April 3,  legislative proposals presented last week included:

Stormwater.  The Regulatory Reform Act of 2013 (Session Law 2013-413) changed state  stormwater  standards to  treat gravel areas as “pervious” and exclude those areas from the calculation of built-upon area on a development site.  (A pervious surface allows  water to  percolate through  to the soil beneath; an impervious surface –such as a concrete driveway –  does not.) Since the amount of built-upon area determines the level of stormwater control required, developers had asked for exclusion of gravel from the calculation of built-upon area as a way to reduce stormwater requirements. The 2013 regulatory reform provision  also directed the ERC to study state stormwater programs “including how partially impervious surfaces are treated in the calculation of built-upon area under those programs”.

Having successfully lobbied for legislation treating “gravel” as a pervious surface and intending to  push for changes  in the way partially impervious surfaces are counted toward built-upon area, supporters of the 2013 legislation encountered a complication — there was no consensus on  the definition of  “gravel”.  As a result, the ERC stormwater working group  focused  on the  gravel  controversy instead of moving  on to the  issue of partially impervious surfaces.

The working group found that gravel areas may or may not be pervious depending on the size and type of the aggregate material used and the underlying substrate. The draft  bill presented to the ERC would actually undo the 2013 legislative decision to exclude all gravel surfaces from the calculation of built-upon area and  direct the Department of Environment and Natural Resources (DENR)  to contract with N.C. State University for a study of the pervious/impervious qualities of different types of aggregate materials.

Isolated Wetlands. After several bills proposing to repeal  state rules protecting isolated wetlands failed to win passage,  the  General Assembly asked the ERC to study isolated wetlands regulation.  (See an earlier post for more background on the isolated wetlands issue.) Senator Brent Jackson  presented a recommendation for  modification, but not repeal, of state standards for development in isolated wetlands. You can find a copy of the draft legislation here.

The bill would allow developers to disturb a somewhat larger area of isolated wetlands without a water quality permit review.   Current state rules  allow  isolated wetland impacts below specific thresholds to be “deemed permitted” under certain conditions. The proposed legislation would raise those thresholds. West of Interstate 95, the “deemed permitted” threshold would be increased  from 1/10th of an acre to 1/3 of an acre; east of Interstate 95,   the “deemed permitted” threshold would increase from 1/3 of an acre to 1 acre.  (Interstate 95 has long been used as the  dividing line between wetlands-rich eastern counties and piedmont/western counties that have fewer wetlands.)

The bill also proposes to reduce the mitigation required for isolated wetland impacts.  Wetland rules only require mitigation (in the form of wetland creation, wetland restoration or preservation) for impacts to one acre or more of wetlands; for projects requiring mitigation, the rules set  a  2:1 ratio of acres of wetlands mitigation to acres of wetlands impacted by  development.  The 2:1 mitigation ratio  allows for  loss of wetland function and  potential for mitigation failure.  Current  rules also use  a sliding scale of mitigation credits — giving less credit toward meeting the mitigation requirement for preservation of existing wetlands and more credit for creation or restoration of wetlands.  The ERC working group recommendation appears to propose a flat 1:1 mitigation ratio and makes no distinction based on the type of mitigation used.

Local Environmental Ordinances.  An earlier post described legislative efforts to restrain local government adoption of environmental ordinances,  resulting in a one-year moratorium on adoption of  new city and county  environmental ordinances and an ERC study. The ERC working group on local ordinances, led by Rep. Chuck McGrady and Sen. Andrew Brock, found little  actual conflict between state environmental regulations and local ordinances.  The existence of a specific state/local conflict  apparently became the practical guideline for the working group’s proposed  legislation.  The draft bill addresses the one area of conflict the members found — local ordinances on use and application of fertilizer already regulated by the N.C. Department of Agriculture and Consumer Services.

The recommended legislation follows  the General Assembly’s  past practice  of preempting  local regulation only when necessary to meet  some overriding state interest. It is not clear how the narrowly drafted bill recommended by the  working group will be received by those pushing for stricter limits on local environmental ordinances.   In 2013, the N.C. Homebuilders Association  lobbied for the much broader restrictions on local authority in Senate Bill 112 (discussed in the earlier post).  Under the approach  proposed  in SB 112,   it would be very difficult for a local government  to adopt a  more stringent  ordinance on a subject already addressed (however narrowly) by state or federal environmental rules. For Senate Bill 112 supporters, the issue may be more about the benefits of  a single, statewide set of minimum development standards  than concern about conflict between state and local  regulation.

Reporting wastewater spills. In response to concerns about delayed public notice of the recent Haw River wastewater spill,  an  ERC working group   proposed to amend the existing notice law. You can find a copy of the draft legislation here.  The amendments would do two things –

1. Clearly require notice to DENR  of any spill of more than 1,000 gallons of untreated wastewater.   (Although notice to DENR can be implied from the existing law,  the statute only talks about published notice.)

2. Reduce the time allowed to provide notice (both to DENR and to the public) from 48 hours to 24 hours after untreated wastewater reaches surface waters.  Based on discussion at the March meeting, the ERC  may consider requiring more immediate notice to DENR.

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

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

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

These issues have come up a number of times in recent years and seem to represent several different concerns on the part of private sector engineers: questions about the engineering credentials of state and local permit reviewers; concern about professional liability for changes in engineering design required by  state/local permitting staff; time added to the permitting process; and chaffing at second-guessing of  a PE’s judgment by regulatory staff.

The working group’s legislative proposal,  can be found here. It appears to take a moderate path toward managing the tension between private sector engineers and state/local permitting staff. (A sometimes necessary tension given their different responsibilities.) One interesting part of the proposal has to do with review of innovative systems and designs. The bill  would allow a permitting agency to charge the  applicant for a third-party engineering review of an innovative system if the agency does not have a staff engineer qualified to do the review.  That seems to be a wise approach given past controversies (and litigation) over approval of innovative systems.

Historical note: There have been a number of lawsuits against state and local  permitting agencies based on  approval of  engineered innovative systems that later failed.  One of the largest lawsuits resulted from the failure of a wastewater system serving  dozens of homes in an Orange County subdivision in the 1990s.   The homeowners sued the developer, the engineering firm that designed the system and the private utility managing the system — but also sued the state  based on claims of negligent permitting. The state ultimately settled the lawsuit, paying thousands of dollars in damages to the homeowners.

Coal Ash.  ERC co-chair Rep. Ruth Samuelson  noted the high level of  public interest in coal ash,  but  indicated the ERC would not discuss coal ash  at the March meeting.  Samuelson stressed the need  for deliberation and informed decision-making. The  ERC has only one more scheduled meeting before the General Assembly convenes in May.  At the  April 3 meeting, the ERC will  vote on recommended legislation for the legislation session and there has been no discussion of potential  coal ash legislation.

Understanding the Court’s Coal Ash Order

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Dan River Coal Ash Spill and Environmental Policy

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Limiting Local Environmental Ordinances

Earlier posts here, here, and here talked about regulatory reform in North Carolina and the impact on state environmental standards.    In 2013,  a Senate regulatory reform bill (Senate Bill 112)  also proposed to  significantly limit local government authority to adopt environmental ordinances.  Although  Senate Bill 112  did not pass the House,  the Regulatory Reform Act of 2013 (Session Law 2013-413)  effectively put a one-year moratorium on adoption of  local  environmental ordinances to allow time for a legislative study.  The bill directed the  General Assembly’s  Environmental Review Commission (ERC) to study:

“the circumstances under which cities and counties should be authorized to enact  ordinances    (i) that regulate a field that is also regulated by a State or federal statute enforced by an environmental agency or that regulate a field that is also regulated by a rule adopted by an environmental agency and (ii) that are more stringent than the State or federal statute or State rule.”

Existing State Limits on Local Authority.  In North Carolina, cities and counties only have the authority granted to them by state law. But even where the General Assembly has clearly given local governments authority to act,  there are existing  limits on exercise of local regulatory authority.  For example, local ordinances  must be consistent with state law.  Cities and counties have no authority to enforce an ordinance that requires an action that would be illegal under state law or make compliance with state law difficult.  The reverse is also true — a local ordinance cannot make an act unlawful if state law clearly makes  it  lawful. But “consistent” does not mean identical and many state laws allow local governments to adopt  ordinances that go beyond  minimum state standards.

The  General Assembly can also  claim the exclusive  authority  to regulate a particular subject at the state level.  The state expressly preempts local regulation by  adopting  legislation  that  clearly   prohibits or limits adoption of local ordinances on  the same subject.  For example,  N.C. General Statute 130A-293  prohibits cities and counties from adopting ordinances regulating  transportation, storage and disposal of hazardous waste or  prohibiting construction of hazardous waste facilities.  The same statute, however,   allows local governments to apply zoning and land use ordinances  to hazardous waste facilities to the same extent  those ordinances apply to other land uses.   A general zoning or land use ordinance will not be preempted under the law unless DENR  finds that the ordinance would prohibit construction of a hazardous waste facility  needed to “serve the interests of the citizens of the State as a whole”.  The law preempts some local authority, but attempts to strike a balance between the state’s need for hazardous waste facilities and local  land use decisions.

Courts most often find that the state has implicitly preempted local government authority on a particular subject  when  a comprehensive  state regulatory  scheme forecloses the possibility of  local standards. In 2001, the N.C. Court of Appeals ruled that Chatham County could not set standards for siting swine farms because detailed state standards for siting  large animal operations (including swine farms) indicated an intent to have a single, consistent set of state standards. See Craig v. County of Chatham, 143 N.C. App. 30, 545 S.E.2d 455 (N.C. App., 2001).

In short, the General Assembly  can  preempt local regulation of a particular subject  by  saying so outright or by adopting a comprehensive state regulatory program that crowds out  local regulation.  Whether express or implied, preemption  has been directed to individual regulatory issues and only  when  necessary  because of some overriding state interest.  That may be the need for uniform regulation or  to prevent local governments from excluding unpopular land uses that serve a necessary purpose.

 Changing the balance between state and local authority.   The  approach proposed in Senate Bill 112 would completely change the balance between state and local decision-making. Instead of  assuming  local ordinances can  reflect  local  conditions and values, Senate Bill 112  would only allow a  local government to go beyond minimum federal and state environmental standards  in extraordinary circumstances.  The  circumstances listed in the bill included unique local conditions; a serious threat to health, safety and welfare; a requirement of federal or state law; and ordinances needed to qualify for discounted federal flood insurance rates.  But  even those exceptions would require approval by a super-majority of the local governing board (3/4 members) and by the Department of Environment and Natural Resources.

The risk of gaps in  nuisance, environmental and health standards.  Since federal, state and local programs don’t have the same scope, an overly broad preemption  of local environmental ordinances would leave significant gaps:

Some of the most fundamental responsibilities of local government predate state and  federal environmental laws.  Those  laws have been built  on the foundation of local nuisance, public health and land use ordinances — not to replace them.  Local governments have long had the responsibility to address nuisance conditions and regulate  land use. State and federal environmental standards  came  later and while those standards sometimes  touch on   the same subjects,  they do not  substitute for local  zoning, subdivision, nuisance, and health ordinances.    To use one example   cited   in legislative discussions last session — a city stormwater ordinance  to control nuisance flooding doesn’t become unnecessary because the  state has adopted  stormwater rules to protect water quality.  Preempting local ordinances without having a comprehensive set of state standards to  put in their place  could  leave significant holes in protection of public health, safety and the environment.

Local governments need ordinances to  manage local water, sewer,   stormwater  and waste disposal infrastructure.   To give one example, state and federal environmental rules  regulate sewer systems and wastewater treatment plants to prevent  water pollution,  but  don’t address grease disposal that may cause a sewer line to become blocked.  A local ordinance  regulating  grease disposal could easily be considered “more stringent” than federal and state standards.  The General Assembly will also find that many  local governments have ordinances  on waste collection,  waste disposal and  connection to local water and sewer systems.   Although federal and state rules  touch on some aspects of those infrastructure systems, many  local ordinances have no parallel in federal or state rules — because federal and state agencies have no  direct responsibility for providing those services and managing the infrastructure. Under the approach proposed in Senate Bill 112,  local ordinances  needed for operation and maintenance of environmental infrastructure could be prohibited unless justified under one of the exceptions in the bill and approved by the state.

Different communities have different values in terms of land use and development activity.  Many local development ordinances could be considered to overlap federal and state  “environmental” standards.   Overly broad preemption of local standards for land use and development activity would  eliminate the ability of citizens to shape their own community.  If local officials act contrary to the wishes of their constituents, they can be voted out of office.  It will be much more difficult for the residents of Wilmington, Cary, Charlotte and Siler City to have a say in how their  communities develop if much of that power shifts to officials in Raleigh and Washington D.C.

What  will be the guiding principle for further limiting local authority?  Given the different roles of local, state and federal  regulations,  very broad preemption of more stringent local environmental ordinances will create significant controversy — controversy about what it means for a local ordinance to be “more stringent”;  controversy about what should be considered an “environmental” ordinance;  and controversy about justification  of  more stringent local standards.  What seems to be missing from the debate so far is some new guiding principle for limiting local authority that could be used to answer those questions. Until now, the General Assembly has shaped local authority through  laws granting specific powers to cities and counties and  by preempting local authority when necessary to promote some broader state interest. If that set of operating principles changes, some new principle will need to be stated.

Note:  In January, the full Environmental Review Commission heard a brief discussion of the issue.   On February 17, 2014,  the ERC’s City and County Ordinance Working Group will  hear public comment in a meeting at  3:30 in Room 414 of the Legislative Office Building.

Coal Ash Problems Continued

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

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

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

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

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

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

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

Some questions and concerns raised  by the spill:

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

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

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

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

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

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

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

Budget Cuts in the N.C. Coastal Management Program

January 30, 2014.  Caught between state and federal budget reductions, the state’s Division of Coastal Management (DCM) eliminated five positions effective  December 31, 2013 including the land use planning director and federal consistency coordinator.  DCM carries out the state’s Coastal Area Management Act (CAMA)  — a joint state-local program to reduce  property damage and injury from coastal hazards; protect public access to the state’s beaches and waterways;  and manage the impacts of  development on sensitive coastal resources.  With the support of Republican Governor Jame Holshouser, the N.C. General Assembly adopted CAMA in 1974 shortly after  Congress enacted the federal Coastal Zone Management Act  to encourage creation of state coastal resource protection programs.  Over the next several decades,  North Carolina became a national leader in coastal policy even as   the state’s  coastal counties experienced an explosion of development activity.

DCM was forced to eliminate these two positions and three others (the Assistant Director for Permitting and Enforcement,  an IT support position and a policy analyst)  after several years of state and federal budget reductions. Federal grant funding under the Coastal Zone Management Act had been flat for over a decade while salaries, benefits and indirect costs increased. The last federal funding cycle  reduced the state grant by 5.9%. At the same time, state appropriations  have dropped  35% since 2009 and permit receipts  fell by  approximately  30%  as the recession slowed development activity.

More on the impact of eliminating the land use planning and coastal consistency positions:

Land Use Planning Director. One  goal of the Coastal Area Management Act  was to plan coastal development with an eye toward conditions that make the coastal area uniquely hazardous and uniquely productive. To work, it had to be a joint state-local effort and CAMA made local land use planning a key part of the state’s coastal management program.  Budget  cuts in previous years  forced the elimination of a long-standing DCM grant program that provided  financial assistance to coastal cities and towns for land use planning.  Ongoing budget cuts have now made it necessary to eliminate the  CAMA land use planning director. The director supervised  DCM’s  planning efforts and worked directly with local government planners.    Supervisory responsibilities for the  planning program has  shifted to DCM’s policy director.

Federal Consistency Coordinator. The federal Coastal Zone Management Act requires federal  activities affecting  the coastal area to be consistent “to the maximum extent practicable” with the state’s approved coastal management  program.  (To be enforced through the CZMA consistency requirement, a state program must be approved  by the  Office of Coastal Resource Management in the National Oceanic and Atmospheric Administration.) The approved North Carolina coastal management program  includes development standards adopted under CAMA, but also includes local land use  policies, water quality standards, and other state laws and rules concerning coastal resources.   As a practical  matter, the federal consistency requirement  gives the state an opportunity to review and comment on proposed federal activities and federal permit decisions affecting the North Carolina coast.   In many cases, federal consistency review is the only  way  the state  can influence the federal action.

You can find a list of  the types of federal actions and permits DCM  reviews  here.    North Carolina has most often used  consistency review to request accommodation for state needs rather than to block a federal action entirely.  The state used consistency review  to press the U.S. Army Corps of Engineers to put sand from federal navigation dredging projects back on N.C. beaches rather than dumping the sand offshore.  In 1991,  the U.S. Secretary of Interior upheld a North Carolina consistency objection to a federal  permit that would have allowed  Mobil Oil  to deposit drilling waste from an exploratory well onto a commercially important fishing ground off the Atlantic coast. The CZMA consistency requirement also became one of the most important legal tools in North Carolina’s  unsuccessful effort to prevent Virginia from constructing  a pipeline to take water from Lake Gaston to  the City of Virginia Beach.

Loss of the federal consistency coordinator comes at a particularly bad time given the increased  activity around  coastal energy development.  Offshore oil and gas  development  most often occurs in federal waters that are beyond the state’s jurisdiction. (Under the Outer Continental Shelf Lands Act, state jurisdiction  only extends  3-miles from shore.)  Without  direct permitting or enforcement authority,  the  state’s only influence over offshore energy activities may be through  consistency review of federal lease and permit decisions.  Since those federal decisions can advantage or disadvantage the different Atlantic coast states, even supporters of offshore oil and gas development may need a way to advocate for North Carolina interests.  Consistency review  also gives the state an  opportunity to influence  federal leases and permits for  onshore and offshore wind energy facilities.

In both 2012 and 2013, the General Assembly  funded new positions in  DENR’s Division of Energy, Mineral and Land Resources to support work on energy development.   At the same time,  DCM budget cuts have resulted in the loss of a position critical to the state’s influence on offshore energy development activities.    As of January 1, 2014,  federal consistency review  will be divided between two DCM staff  who  review  CAMA major development permits. If activity around offshore energy development  continues to pick up,  the state will need to  reinvest in the federal consistency process to have a voice in how that development happens.