Monthly Archives: July 2013

Legislative Wrap-up I: Water Quality

July 30, 2013:  A summary of legislative action on water quality-

Budget-  The final budget directs the Department of Environment and Natural Resources (DENR) to combine programs in the Division of Water Quality (DWQ)  and the Division of Water Resources DWR) and reduces the budget for the reorganized programs by $2 million.  The $2 million cut amounts to a 12.4% reduction to the combined programs. The budget also make two specific  program cuts  that reduce appropriations for water resource and water quality programs by another $735,257.  Total reductions may go even  higher than $2.7 million if water resource/water quality  programs also share in the  2% department-wide reduction required by  the final budget.   Although both the Division of Water Resources and the Division of Water Quality deal with water, the two have very different responsibilities and little overlap in functions; it  will be  difficult for  the reorganized programs to absorb another 12.4 % cut  without hurting program delivery.

Division of Water Quality (DWQ) has responsibility for preventing and reducing water pollution in the state’s rivers, lake, streams and groundwater supplies.  By delegation of authority from the U.S. Environmental Protection Agency, DWQ  issues federal Clean Water Act permits to wastewater and stormwater  dischargers. DWQ also issues state water quality permits for animal waste management systems, injection wells, and for land application of waste.

Division of Water Resources monitors water supply – the amount of water in rivers, lakes, streams and aquifers rather than its quality. DWR has responsibility for state and local water supply planning; drought monitoring and drought response; and approval of  water transfers from one river basin to another (for example, taking water from an intake on the Neuse River to provide drinking water to a city  in the Cape Fear River basin).  The Public Water Supply section in DWR enforces the federal Safe Drinking Water Act, which regulates drinking water systems to ensure that the water coming out of the tap is safe to drink.

Both divisions have river basin planning programs –  DWR water supply plans  use data on water use to model for future water supply  and DWQ  water quality plans track data on pollutant levels,  identify sources of  pollution and provide a foundation for addressing water  quality  problems.  The two types of planning complement each other, but neither can take the place of the other.  It will be important to continue to have strong water quality and water supply planning programs if the state is to have a scientific and technical basis for good water policy decisions.

The budget will test DENR’s  ability to continue to deliver good science, timely permit reviews, compliance assistance, and enforcement with fewer resources. The department will also have to keep an eye on the effect of reduced state appropriations on  federal grants supporting programs in the two divisions. The state receives a significant amount of  federal grant money to support activities required under the delegated Clean Water Act and Safe Drinking Water Act programs.  Those grants require a certain level of state “match” money — which is often provided in the form of state-funded positions in those programs.

Jordan Lake –  Legislation delays further implementation of the Jordan Lake Nutrient Strategy for three years  (Senate Bill 515).  The General Assembly had already delayed  the original Jordan Lake compliance dates for reducing  the amount of  nitrogen and phosphorus in wastewater discharges (until 2016) and for implementing new development stormwater programs (until 2014). The practical effect of the bill will be to  push those dates out three more years.  A number of local governments in the Jordan Lake watershed have already started implementing  local stormwater ordinances and can continue with those programs. The purpose of the delay is to allow the state to “[explore]  other measures and technologies to improve the water quality of the Lake”.  A related budget provision  earmarks   $1.35 million from the 2013-2014 appropriation for the Clean Water Management Trust Fund  for a pilot project to test the use of technology to improve water quality in Jordan Lake.   The budget provision describes the technology to be tested very specifically in three pages of bill text and seems  to direct funds to a particular product.  Both in committee and on the floor of the House, legislators identified the technology as SolarBee— a technology used to aerate water tanks and raw water reservoirs.  The bill exempts the pilot project from normal state contract procedures, which means DENR will not be required to advertise for bids.

Prospects for the success of the pilot project are already in doubt. A  prominent North Carolina scientist, Professor Emeritus Kenneth H. Reckhow of Duke University, has said that aeration technologies are not effective in large water bodies like Jordan Lake.  Even if the  technology can improve in-lake conditions, the U.S. Environmental Protection Agency  has put the state on notice that  in-lake treatment cannot substitute for pollution reductions required under the Clean Water Act (7_10_2013 Letter to Rick Glazier re B Everett Jordan Reservoir TMDL-1).  If EPA holds to that position, the technology  will fail its primary purpose — which is to relieve upstream communities in the Jordan Lake watershed  of the need to  invest in wastewater treatment plant upgrades and stormwater controls on new development.

Groundwater (and possibly coal ash) – Section 46  of  House Bill 74 (Regulatory Reform Act)  seems to narrow DENR’s ability to address groundwater contamination caused by a permitted waste disposal site.  When the state issues a  permit for land application of  waste or for  waste disposal in a landfill, the permit sets a groundwater compliance boundary. Some degree of groundwater contamination will be allowed inside the compliance boundary,   but the permit holder cannot cause groundwater  standards to be violated outside the compliance boundary.   The new language in House Bill 74  continues to allow the Environmental Management Commission (EMC) to set compliance boundaries by rule and by permit, but creates  a presumption that the compliance boundary will be the property line. (By comparison, landfill permits have  generally set the groundwater compliance boundary at 250 feet from the actual waste disposal area.)

The bill then goes on to limit the circumstances in which  DENR can require  “cleanup, recovery, containment, or other response” to groundwater contamination inside the compliance boundary. Before requiring any action inside the compliance boundary, DENR would have to show that the groundwater contamination: 1. has already caused a violation of water quality standards in nearby surface waters or can reasonably be predicted to cause a water quality standard violation; 2. presents an imminent threat to the environment or to public health and safety; or 3.causes a violation of groundwater standards in bedrock (which seems to mean contamination of deep groundwater).

The presumption that the property line will be the compliance boundary  will likely create pressure on the EMC to allow much larger compliance boundaries  than in the past. Expansion of the compliance boundary carries with it the possibility of  larger areas of groundwater contamination. The new law also makes it more difficult for  DENR   to require  a permit holder to take action inside the compliance boundary –even to contain or reduce the flow of contaminated groundwater off site.   DENR could only require steps to contain contaminated groundwater by showing that the groundwater contamination had caused –or will cause — a specific water quality violation or an imminent threat to health, safety or the environment. The fact that the contamination has moved beyond the compliance boundary (and perhaps already migrated off  the property and toward a river or lake) will not be enough. The clear risk will be that  acting only  after a problem already exists will create a larger and more expensive problem to remedy in the future.

The provision appears to be linked to an ongoing controversy and threatened litigation over groundwater contamination and seeps from ponds where coal-fired power plants have disposed of coal ash. The Catawba Riverkeeper has filed a notice of intent to sue under the Clean Water Act over contamination from two coal ash disposal sites — a  Duke Energy  coal ash pond associated with the Riverbend Steam Station and a Progress Energy coal ash pond in Asheville. The Duke Energy coal ash pond is located on the banks of Mountain Island Lake and near a water intake for the City of Charlotte.  Monitoring around the coal ash pond has detected contaminants in groundwater that exceed groundwater standards, but the Division of Water Quality has not yet decided whether corrective action will be necessary. The Riverkeeper’s complaint claims that contaminants from the coal ash are reaching the lake in seepage from the impoundment and through a groundwater connection to the lake. The House Bill 74 language means that groundwater violations alone –even beyond the compliance boundary — would not necessarily require  steps  to  contain  an ongoing flow of contaminated groundwater to the lake.  DENR would first have to show that the groundwater contamination is causing or will cause an actual water quality standard violation in the lake or  an imminent threat to health, safety or the environment.

Regulatory Reform – More on regulatory reform in a later post, but House Bill 74 includes a requirement that agencies review and readopt existing rules of “substantive public interest”   every ten years.  The bill defines “substantive public interest” so broadly that it will  cover  every environmental rule of any real substance. The state’s Rules Review Commission will set the initial schedule for review of rules, but the bill directs the commission to schedule surface water and wetland standards for review in the first round of rule review.

Miscellaneous – This post only covers the most significant water quality legislative. House Bill 74 contains a number of other minor changes, including technical amendments to the laws on permitting animal waste management systems and an exemption from riparian buffer requirements for agricultural ponds.

Failed Water Quality Legislation – One major change did not happen. The N.C. Homebuilders Association had pushed legislation to eliminate state water quality permitting requirements for wetlands that do not fall under federal Clean Water Act permitting jurisdiction. An earlier post provides some background on the difference between federal and state wetlands jurisdiction.  The language first appeared in a Senate farm bill (Senate Bill 638), but was dropped from the bill once it reached the House. The Senate agreed to the change — possibly because farmers already have broad exemptions from wetland permitting requirements. During the last few days of the legislative session, the exemption language popped up again  in a Senate committee substitute for House Bill 938. The House sent the bill to committee and never took it up for a concurrence vote. The bill will still be eligible for consideration next year when the General Assembly reconvenes in May.

House Bill 74: Limiting Local Options

July 24, 2013: The House and Senate members negotiating to resolve differences over the 2013 regulatory reform bill, House Bill 74, released a conference report  this afternoon.

The twists and turns of regulatory reform over the last few years deserve a much longer discussion. For now,  it is enough to say that many members of the General Assembly hate rules (or believe it politic to sound like they do),  but the General Assembly has not  figured out how to stop state agencies and local governments from adopting rules without also preventing them from doing things that need to be done to comply with federal law or to  protect public health and safety.

That unresolved conflict surfaces  again in the conference report on  House Bill 74. The bill adds a section that puts a one-year moratorium on  adoption of  new local government ordinances that regulate  something  already  addressed  by  state or federal environmental  rules. The only exception would be for ordinances unanimously adopted by the local governing body.  No limit on local government  ordinances appeared in  the  versions of House Bill 74  that passed the House and the Senate, so its appearance in the conference report is something of a surprise. Language preempting local environmental standards did appear in a different Senate regulatory reform bill (Senate Bill 112); that  bill proposed to  permanently  restrict  local  adoption of ordinances exceeding state and federal environmental standards with only limited exceptions.  Although the conference report provision in House Bill 74  has a temporary effect, it  would prevent adoption of any local ordinance dealing with an issue regulated under state or federal rules.

I am sure that the one-year  moratorium to allow more legislative study of  local  preemption was intended to be a compromise of an issue the two chambers disagree on, but it  creates  two immediate problems for local government:

1. Many local ordinances deal with issues also regulated by state environmental  agencies  because state rules  and environmental permits issued  by the state for local government activities sometimes  require adoption of a local ordinance.

2. Some of the most fundamental responsibilities of local government — such as addressing nuisance conditions, regulating development and  maintaining public infrastructure — involve activities also  regulated to some degree by state environmental agencies. In many cases, state rules and  local ordinances use similar tools to solve entirely different problems. State stormwater rules have been adopted to protect water quality, but a local government may  find it necessary to adopt stormwater standards to manage a local flooding problem. Under the  House Bill 74 conference report, the existence of state stormwater rules  would prevent a local government  from adopting a local stormwater ordinance  unless there was unanimous agreement on the content of the ordinance.

It is difficult to predict how big a problem  the moratorium  would be given the very different circumstances in cities and counties across the state, but it seems an unnecessary gamble. The legislature needs to  take more time to understand how state environmental rules and local government ordinances relate to each other; a  legislative study makes a lot of sense. But a study  can be done without putting  permits at risk and preventing local governments from addressing local problems.

Compromise Budget: Effect on Environmental Programs

July 24, 2013: Today, both the Senate and the House will take final votes on the compromise state budget.

Money (Summary)

Although  the  total budget for the Department of Environment and Natural Resources (DENR) appears to  grow, the final budget bill actually cuts the DENR budget for existing programs by  5% over the two-year budget period.  The reductions are not evenly distributed; water quality and water resource programs will take the largest cuts — at least 12.4 % compared to the 2012 budget for those programs.

The apparent increase in the DENR budget  mostly  comes from  moving money for programs being transferred into DENR from other departments (such as the State Energy Office); creation of  a new grant program for water and wastewater infrastructure; and replacement of dedicated funding sources with year to year appropriations.

The overall 5% reduction does not  include the reduction in funds  available to  the Parks and Recreation Trust Fund by shifting deed stamp tax revenue to the General Fund and replacing the dedicated funding with an  appropriation. See an earlier post  for more detail on the amount of revenue that the deed stamp tax had generated for the Parks and Recreation Trust Fund and Natural Heritage Trust Fund.

More detail below.

Department-wide spending reductions: The budget bill requires the Department of Environment and Natural Resources to reduce department spending by 2% from 2012 spending levels ( just over  $2.227 million department-wide).  DENR  can decide where to reduce spending to meet the 2% target. DENR’s 2012  budget already represented a nearly  40%  reduction from 2008 spending levels as a result of budget cuts in earlier years.

Other Reductions: In addition to the department-wide reduction of 2%, the budget makes additional cuts to specific programs. The largest of the targeted reductions requires  DENR to cut an additional $2 million out of the budget for water resources and water quality programs in the second  year of the  two-year budget  (2014-2015). That represents a 12.4% reduction from 2012  funding for water quality and water resource programs. The budget assumes the additional savings can be found by combining water resource and water quality programs into a single division. See an earlier post for more on the water quality/water resource budget cut.

Elimination of dedicated funding sources: The budget eliminates a number of dedicated funding sources for environmental protection and conservation programs, including the earmark of revenue from the state’s deed stamp tax for parks and recreation. All revenue from the deed stamp tax will go to the General Fund and the legislature will appropriate money for parks and recreation on a year to year basis. The budget also eliminates dedicated funding sources for the Bernard Allen Emergency Drinking Water Fund, the Solid Waste Management Trust Fund and the Inactive Hazardous Sites Fund.   Replacing dedicated  revenue from the deed stamp tax with an appropriation significantly reduces funds available for parks and conservation programs.

Clean Water Management Trust Fund: $10.4 million is appropriated for the Clean Water Management Trust Fund in 2013-2014 and $13.6 million in 2014-2015.

At-Sea Observer Program (Division of Marine Fisheries): The budget provides a one-time appropriation of $1.1 million to monitor the number of endangered sea turtles caught  in commercial fishing nets. The sea turtles, which  are protected under the federal  Endangered Species Act, sometimes get caught in gill nets  used by commercial flounder fishermen. The  monitoring program  is required as a part of an agreement between the state Division of Marine Fisheries and the  National Marine Fisheries Service that allows North Carolina commercial fishermen to continue to use gill nets.

Program increases: The  budget increases funding for shale gas and offshore energy staff (+$400,000) and  for  investigation of hazardous waste contamination (+ $250,000).

Grant Funds for Water/Wastewater Infrastructure: The General Assembly appropriates $3.5 million in 2013-2014 and $5 million in 2014-2015 for water and wastewater infrastructure grants. The new grant program partially offsets the fact that the budget provides zero funding for  infrastructure grants  through the N.C. Rural Economic Development Center.

Programs Eliminated: The budget eliminates the  Fisheries Resource Grant Program,  Sustainable Communities Task Force, Uwharrie Regional Resource Commission,   Adopt a Trail program, and the Division of Water Quality’s Groundwater Investigation Unit well drilling services.

Jordan Lake Cleanup

$1.35 million from the 2013-2014 appropriation for the Clean Water Management Trust Fund is earmarked for a pilot project to test the use of technology to improve water conditions in Jordan Lake. The appropriation appears to be partner to Senate Bill 515 which (as amended in the House) delays further implementation of the Jordan Lake rules for three years to test technology  to  reduce the water quality impacts of nutrient pollution. The budget bill describes the technology to be tested very specifically and appears intended to  direct the funds to a particular product.  The bill exempts the pilot project from normal state contract procedures, which means DENR will not be required to advertise for bids.

Environment Commissions

The budget bill includes changes in appointments to the state’s major environmental regulatory commissions — the  Environmental Management Commission (water quality, air quality and water resource rules) and the Coastal Resources Commission (coastal development rules).  The bill reduces the  number of members on each commission, but the most significant change gives Governor McCrory and current legislative leadership an opportunity to replace nearly all of the members immediately. Terms for  all  Environmental Management Commission (EMC)  members will end July 31, 2013.    Four Coastal Resources Commission (CRC)  members will continue to serve until June 30, 2014 (the specific seats on the commission  are identified in the bill); the terms of  all other CRC members will end July 31, 2013. Until now, members of both commissions served staggered terms of four or six years. Each new governor and legislature had an opportunity to appoint new members as their terms ended. The changes will recreate the staggered appointments, but only after giving the current governor and legislature  unprecedented power to replace all  of the members of each commission.

The final language on EMC appointment includes conflict of interest language intended to address conflict of interest requirements in federal law.

Noncommercial Underground Storage Tanks

The bill changes state law to require owners of  noncommercial underground petroleum storage tanks to pay a deductible of $1,000 and a 10% co-payment for environmental cleanup  if the tank leaks. The bill caps the total contribution required from the tank owner at $2,000 for the combined deductible and co-payment.  Until now, the state’s Noncommercial Underground Storage Tank Trust Fund paid the full amount of cleaning up soil and groundwater contamination from a noncommercial tank and the tank owner only paid for removal of the leaking tank. (“Noncommercial” tanks include home heating oil tanks and farm or residential motor fuel storage tanks that hold less than 1,100  gallons.)


Conservation Programs:  Clean Water Management Trust Fund staff will be transferred to DENR. The bill eliminates the Natural Heritage Trust Fund (NHTF) and amends the CWMTF statute to allow that fund to be used for conservation projects previously funded by the Natural Heritage Trust Fund.  Existing NHTF obligations  will be honored and any remaining funds will be transferred to the  Clean Water Management Trust Fund.

Water/Wastewater Infrastructure Programs: The budget creates a new Division of Water Infrastructure in DENR by combining existing staff for the Drinking Water State Revolving Fund and   Clean Water State Revolving Fund and  transferring some number of infrastructure staff from the Community Development Block Grant program in Department of Commerce. (The actual number to be negotiated between the two departments.)  Infrastructure grant and loan decisions will be made by a new Water Infrastructure Authority.

State Energy Office: The State Energy Office moves from the Department of Commerce to DENR.

Compromise Budget Significantly Cuts Water Quality/ Water Resource Programs

July 22, 2013:  The House and Senate have released a compromise budget proposal to be voted on by both chambers this week. The budget comes in two pieces: 1. The report on continuation, expansion and capital budget (the “money report”) shows the proposed changes up or down in appropriations for state agencies. The money report also shows funds set aside for state capital improvement projects. You can find a copy of the money report here; 2. The conference committee report on the budget bill (Senate Bill 402) has the text of statute changes being adopted as part of the budget. Some of the statute changes are needed because of appropriations decisions; others pop up in the budget bill  for more strategic reasons and have very little relationship to budgeting. Another post will provide an overview of budget decisions affecting environmental programs. This post focuses on one of the most significant — the reorganization of water quality and water resources programs and a large budget cut associated with the reorganization.

The money report shows a $2 million cut to water quality and water resource programs beginning the second year of the biennium (2014-2015)  from  savings to be realized by combining the Division of Water Quality (DWQ) and the Division of Water Resources (DWR). The $2 million dollar reduction represents 12.4% of state appropriations to programs in the two divisions in 2012 and comes on top of a department-wide budget reduction of 2% also required in the compromise budget. An earlier post talked about DENR’s plans to reorganize the state’s water quality programs and anticipated some reduction in positions as part of the reorganization. The questions raised in the earlier post become more important given the magnitude of the cut proposed in the budget bill.

The challenge comes from the fact that the two divisions do very different things.  The Division of Water Quality  has responsibility for  the quality of water in rivers, lakes, streams and aquifers. DWQ develops and enforces state  water quality standards. DWQ also carries out federal Clean Water Act  programs, including permitting programs for wastewater discharges, stormwater discharges and development activities affecting streams and wetlands.  The Division of Water Resources deals with water quantity — the amount of water available in rivers, lakes, streams and underground aquifers;  water supply planning;   drought response;  and regulation of  public water systems. Functions of the two divisions  intersect at points (and there may well be some efficiencies there), but do not overlap. The kind of data needed to monitor water quality in a river is different from the data needed to  understand the volume of water in the same river. Water supply planning and water quality planning are not exactly the same thing – it may well make sense to marry the two, but the marriage will only work  if there are still  sufficient resources to look at both water quality and quantity. After four years of budget cuts, it will be difficult to achieve the  12.4% reduction required in the budget without compromising either the level of service provided to permit applicants or water quality/water supply monitoring and planning activities.

When the earlier post was written in June, the word on the street had been that DENR planned to transfer all of the state’s stormwater programs to the Division of Energy, Mineral and Land Resources (DEMLR) effective August 1 and move remaining Division of Water Quality programs into the Division of Water Resources. About the time word began to get out about the department’s reorganization plans, the Senate put language in House Bill 94  (and later in House Bill 74)  directing DENR to combine the Division of Water Quality and Division of Water Resources. The Senate language seemed to anticipate that stormwater programs would  go to the Division of Water Resources with other DWQ programs. (Both bills made changes to a number of state stormwater statutes to substitute “Division of Water Resources” for “Division of Water Quality”.)  Those bills are still waiting for final action and until that happens, there may be lingering questions about exactly what form the reorganization will take.

See the earlier post  for  more about the implications of moving stormwater programs to the Division of Energy, Mineral and Land Resources. Whatever the final configuration of the state’s water quality programs, the budget cut will be a challenge. The  sedimentation pollution control program  in  DEMLR  (the only water quality -related program in that division)  has already been decimated by budget cuts  that  reduced sedimentation program staff by 35% over  the last four years. As the  number of sedimentation program staff declined, the number of  open construction sites  to be monitored for sedimentation and erosion control did not.  (“Open” construction sites includes sites actively under construction  and sites where construction stopped before completion of the project.) There are now 40 state sedimentation staff to manage an inventory of 8,000 open construction sites across the state. The gap between open  construction sites and state staff to enforce the Sedimentation Pollution Control Act will only become larger as new development activity picks up.  There are no efficiencies left to wring out of  the sedimentation program and it isn’t clear that DWQ  stormwater programs  could help given other state and federal stormwater responsibilities.

The question for DENR is whether any combination of programs can absorb the additional reduction without damaging essential water quality programs. After the budget reductions of the last four years, can the department continue to do all of the things required for delegated Clean Water Act and Safe Drinking Water Act programs, maintain water quality and water supply planning functions, enforce the state Sedimentation Pollution Control Act, and provide good customer service with  another  12.4% budget cut targeting water quality and water resources programs?

NOTE: The original post was modified to make it clear that the $2 million cut begins in the second year of the biennium (2014-2015).

A Beach Bill For The Governor

July 19, 2013: The Senate accepted House changes to Senate Bill 151 (Coastal Policy Reform Act of 2013), which means the bill now goes to the Governor. The bill does two things:

1. Changes  existing law on construction of terminal groins for inlet stabilization.  The most controversial part of the bill makes changes to state law on construction of groins to stabilize inlet shorelines. After prohibiting permanent erosion control structures on ocean and inlet shorelines for nearly 40 years, state policy changed in 2011 when the General Assembly amended the Coastal Area Management Act to allow construction of terminal groins at inlets. A terminal groin is a structure built perpendicular to the beach at an inlet or at the end of an island to stabilize the shoreline;  in some cases, the groin also  traps sand moving along the shore to build up the beach behind the groin.

The 2011 legislation, Session Law 2011-387,  followed a 2010 study of terminal groins by the state’s Coastal Resources Commission (CRC). After reviewing the impact of the small number of existing inlet groins in North Carolina and similar projects in other states, the CRC issued a report concluding that terminal groins can have both positive and negative impacts and should only be allowed under very strict conditions. You can find links to the final CRC report and recommendations here.  Because of concerns identified in the report,  S.L. 2011-387 only allowed  four groin projects to be permitted coast-wide  as something of a pilot project. No projects have been permitted  yet.

In the most significant change to the 2011 law,   Senate Bill 151  redefines  “terminal groin” to include projects that could be something else entirely — including a  field of multiple groins.   The new definition of “terminal groin” no longer matches the definition used by the U.S. Army Corps of Engineers  to describe that  particular type of shoreline stabilization project.  Senate Bill 151 changes the definition in state law to include projects involving installation of “one or more” groin structures  or a single groin with  “a number of smaller supporting structures”. The expanded scope of the definition means that the Department of Environment and Natural Resources could permit projects with even greater impacts  than a simple  terminal groin — impacts that were never considered in the 2010 Coastal Resources Commission study.

2. Provides clear authority for beach communities  to address debris, damaged structures, personal property  and other obstructions on the public trust beach. This part of the bill responds to a N.C. Court of Appeals decision in Town of Nags Head v. Cherry  that concluded only the state has the authority to order removal of  nuisance structures from the public trust beach.  An earlier post provides a  more complete  discussion of the  case. Coastal towns had always assumed that their authority to enforce local ordinances –including nuisance ordinances —  extended to the public trust beach (the area between the mean high tide line and the mean low tide line).  In fact, state law specifically recognizes local authority to regulate many activities on the public trust beach and the charters for some coastal towns extend into the water. The Court of Appeals decision, however,  made a distinction between ordinances generally and those specifically intended to protect public trust rights  and held that only the state could act to protect those rights. The bill returns the law to what many in both state and local government had always believed it to be — shared state and local authority to protect public rights of access to the beach and to address conditions that create a health and safety hazard on the beach.

Jordan Lake and EPA Action to Reduce Nutrient Pollution

July 18, 2013:  As things now stand, Senate Bill 515 (Jordan Lake Water Quality Act)  will either repeal the state’s water quality rules  for Jordan Lake (Senate version) or delay implementation of the rules for another three years to investigate technologies that may reduce water quality  problems  caused by nutrient pollution (House version). With the bill still under consideration, some background on how issues of nutrient pollution are playing out nationally and where N.C. stands.

The Clean Water Act requires the state to  reduce  pollutants that cause water quality violations in a lake or stream by adopting a Total Maximum Daily Load (TMDL) for the pollutants causing the problem. In September of 2007, EPA approved the state’s Jordan Lake nutrient strategy as the TMDL for the lake. The nutrient strategy identifies the  amount  of  nitrogen and phosphorus  that  can be absorbed by the lake  without violating water quality standards and then allocates  nitrogen and phosphorus  reductions among all of the major  sources contributing nutrients to the lake to reach the target level. Sources include wastewater treatment plants, large industrial facilities that discharge wastewater, stormwater from developed areas, and agricultural activities. The part of the Jordan Lake strategy setting the maximum  level of nitrogen and phosphorus consistent with meeting water quality standards  represents the heart of the TMDL required under the federal Clean Water Act.   An earlier post  links to  a July 10, 2013 letter from EPA’s Acting Administrator for Region 4, Stan Meiburg,  saying  that EPA does not believe that  either delay or repeal of the Jordan Lake rules relieves the state of the obligation to achieve the pollution reductions called for in the  approved TMDL.

If a state fails to act on a TMDL, EPA has the ability to impose a federal TMDL.  The Jordan Lake rules share the burden of reducing nutrient  loading to the lake more broadly than EPA  could do under a federal TMDL, which would have to be focused on  federally permitted wastewater discharges.  The result would be an  increased burden on local governments and industries that discharge wastewater because the pollution reductions would no longer be shared by stormwater and agricultural sources that do not require federal permits. EPA also  accepted the  state’s timeline  for  implementing  pollution reduction measures for Jordan Lake. The original Jordan Lake rules allowed between four  years and nearly ten years  for implementation of different parts of the nutrient reduction strategy;  those timelines have already been  extended several  years by earlier legislation. A federal TMDL would likely have a shorter implementation time.

Apart from the Jordan Lake TMDL, North Carolina finds itself on the wrong side of EPA’s national policy on  permitting  nutrient discharges to all lakes and streams. EPA’s longstanding position has been that states need numerical in-stream or in-lake standards for nutrients. That would involve setting a nitrogen and phosphorus standard for each water body in the state and using those  standards to  set  permit  limits  for wastewater discharges.  The N.C.  Division of Water Quality (DWQ)  has resisted the push for numerical nitrogen and phosphorus standards. N.C.’s water quality program has supported use of  the existing  chlorophyll-a standard as a better indicator of  nutrient impairment and one less likely to  put an unnecessary burden on wastewater treatment plants and industrial dischargers.

So while  a number of states have adopted numerical nutrient standards, North Carolina has not.  (Note: DWQ and the Environmental Management Commission are due to report to EPA soon on the state’s progress on  nutrient standards.) EPA has not yet forced the issue here, but EPA has directly intervened in several other states to either press for state adoption of nutrient standards or to actually impose federal nutrient standards. In Florida, EPA  adopted federal nutrient rules for some Florida waters in 2010 and proposed additional rules in 2012.  A November 2012 EPA  document provides a history of EPA actions on nutrient standards in Florida. (Florida has since adopted state nutrient standards that EPA has approved.) EPA has also pushed several midwestern states to adopt numerical nutrient standards. Just last month, EPA ordered the state of Minnesota to  tighten nutrient limits on wastewater discharge permits  or risk having EPA take over the water quality permitting program.  See an article in Governing magazine  for an overview of the EPA action in Minnesota.

In deciding how to ease the financial and regulatory burden of  the  Jordan Lake rules, the state needs to be  mindful of  Clean Water Act requirements and  EPA’s possible response. So far, EPA has  allowed North Carolina  a great deal of flexibility  to address  nutrient pollution and has not pressed the issue of numerical nutrient standards.  It is likely that EPA  has  given some deference to the state’s good faith efforts to  develop  solutions  – like the Jordan Lake nutrient strategy — tailored to the state’s  needs. But nationally, EPA has also shown a willingness to intervene directly to enforce the Clean Water Act in the face of state inaction on nutrient problems.

There  are ways  to ease the burden of nutrient reduction on upstream communities without completely walking away from the need to reduce  nutrient pollution. One  idea (which actually came up in  development of the Falls Lake and Jordan Lake rules)  is creation of  a  cost-sharing plan so downstream communities that benefit from upstream pollution controls would  help offset the cost. There may also be modifications to the Jordan Lake rules that could ease the burden on upstream local governments without abandoning the goal of reducing nutrient pollution.  Putting state energy into improving the Jordan Lake rules and exploring innovative financing of pollution controls  would be consistent with the Clean Water Act and less likely to provoke direct EPA action. If  N.C. completely steps back from the commitment to reduce nutrient loading to Jordan Lake,  the state may lose  the ability to create a solution that  meets the state’s interests.

Delaying the Jordan Lake Rules

July 11, 2013: The House Environment Committee  took up a proposed committee substitute for Senate Bill 515 (Jordan Lake Water Quality Act).  An earlier  post  (written as the bill made its way through the Senate)  provides some background on the Jordan Lake rules. The Senate bill  proposed to repeal the rules and  study alternative solutions to the lake’s  water quality problems. At the time, Senate  bill sponsors suggested that a technological solution to the Jordan lake nutrient pollution could make additional  investment in upstream pollution controls unnecessary.

Instead of repealing the rules, the  bill approved by the House Environment Committee today delays further implementation of the Jordan Lake rules until July 1 2016.  It  allows DENR and local governments in the Jordan Lake watershed to continue with programs  already underway, but otherwise extends compliance deadlines  by another three years — affecting the timelines for upgrading wastewater treatment plants and  development of local stormwater  programs.  Discussion in committee  made it clear that legislators still hope for a technological solution  to  substitute for  the upstream pollution  reductions required under the Jordan Lake rules.   Senator Rick Gunn told House members that separate legislation would create a legislative study and provide $2 million in funding for a pilot project to test technology  and “best practices” to improve water quality in Jordan Lake.  In response to a question, Senator Gunn indicated that the funding would come out of the existing appropriation for the Clean Water Management Trust Fund. (The actual appropriation to Clean Water Management Trust Fund is still in question since differences between the House and Senate budget bills have not been resolved.)

Although the bill itself does not identify a particular technology,  one committee member mentioned  Solar Bee — a technology used to aerate water tanks and lakes. Since the new bill draft  does not include language actually describing the study or the pilot project, it is not clear how broadly the legislature will look for technological solutions to Jordan Lake’s pollution problems.

The vote to approve the bill in committee was surprisingly close and at least two Republican members spoke against the bill.  Some  of the opposition focused on  the proposal to take  $2 million from the already diminished Clean Water Management Trust Fund budget to pay for the pilot project. There was also  concern that the pilot project may direct state money to a single technology.

Although less radical than the Senate version, the House bill still sets up an unnecessary choice between  reducing pollution coming from sources upstream of Jordan Lake or using technology to improve conditions in the lake. However effective a technology may be, it is unlikely to  offset  increasing levels of  nitrogen and phosphorus flowing downstream into the lake. The only certain thing about the  bill is that it  will allow  three more years of development in the upper watershed without comprehensive stormwater controls and three more years without tighter nitrogen and phosphorus limits on  wastewater discharges.  The three year delay in implementing the rules does not maintain the status quo — it allows nitrogen and phosphorus loading to Jordan Lake to  increase. In the end,  delay may  also  increase the cost of addressing the water quality problem.

In the meantime, the U.S. Environmental Protection Agency has responded to a question from Rep. Rick Glazier about the impact of Senate Bill 515 on the state’s delegated Clean Water Act program. A July 10, 2013 letter from  EPA’s Acting  Administrator in Region 4, Stan Meiburg,  makes two important points:

1.  In more blunt language than you will often find in an EPA letter,  Meiburg  expressly  says that federal law does not allow use of treatment technology as a substitute for actually reducing the pollutants being discharged to Jordan Lake. When  a water body   cannot meet a  water quality standard, the  Clean Water Act requires the state to limit  discharges of the pollutant causing the  problem  to levels that will  eliminate the  violation.  In Clean Water Act terms, the  state must set  a “total maximum daily load” (TMDL) for the pollutant. The TMDL  acts as  a cap; each individual wastewater treatment plant or industrial discharger  feeding into the impaired water body  has  a permit limit  for the TMDL pollutant and  the sum of all the permitted discharges  cannot exceed the cap.

2.  Since the state’s Jordan Lake nutrient strategy is the federally approved TMDL for Jordan Lake, Meiburg makes it clear that EPA  expects the state to continue implementing the nitrogen and phosphorus reductions in the nutrient strategy whatever happens legislatively. That means EPA will hold the state to the total level of nitrogen and phosphorus reductions called for in the Jordan Lake rules.  If EPA finds that the state has failed to  carry out  some part of the strategy  — such as stormwater controls on new development —  EPA will expect the state to offset the loss of those nitrogen and phosphorus reductions by increasing the reductions from other nutrient sources.

The full text of the letter:  7_10_2013 Letter to Rick Glazier re B Everett Jordan Reservoir TMDL-1

House Environment was the only committee referral for  Senate Bill 515, so the new version of the bill will next go to the House floor. If approved, the bill will have to go back to the Senate for concurrence in the changes made by the House.

Buying Contamination

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

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

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

Some background —

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

372 dry-cleaning sites with known solvent contamination

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

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

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

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

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

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

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

Environmental Legislation: Where Things Stand

July 8, 2013: Just coming off the Fourth of July holiday and an odd legislative week  may be a good time to check the status of some of the more important environmental bills.

Environmental legislation that — one way or the other — is done:

House Bill 488 (Regionalization of Public Utilities) transfers ownership of the Asheville water system to the Metropolitan Sewage District of Buncombe County. The City of Asheville strongly opposed the legislation, which provides no compensation to the city for transfer of assets associated with the water system. The city immediately sued to challenge the law and a superior court judge has issued an order  stopping  the transfer while the fight moves through the courts. There are lots of issues in play — including the constitutionality of the law and allegations that one of the bill sponsors has threatened Asheville with more retaliatory legislation if the lawsuit isn’t dropped.

House Bill 628 (Protect/Promote Locally Sourced Building Materials) was signed into law after a major rewrite in the Senate.  The  original House bill would have prohibited state building projects from seeking Leadership in Energy and Environmental Design (LEED) certification under Green Building Council standards.  The Senate rewrote the bill to allow construction of state projects under “green” building standards that  give credit for use of local building materials — which LEED standards do.  (Background on the LEED controversy and the Senate compromise language can be found here.) The Senate also added a new provision  calling  for study of the energy efficiency standards for state buildings that were adopted in 2007. The House agreed to the changes and the bill has become law.

House Bill 706 (Preserve Landfill Space) allows for on-site disposal of demolition debris from manufacturing facilities and decommissioned electric generating stations. The bill exempts disposal of these materials from landfill standards and allows the debris to be buried on site under environmental standards set in the bill. (Any hazardous waste in the debris must still be disposed of under standards set in state and federal hazardous waste rules.)

Senate Bill 638 (N.C. Farm Act of 2013) is significant for what it doesn’t do; the bill was signed into law without the controversial wetlands provision discussed in an earlier post.  The House removed a section of the Senate bill that eliminated state water quality permitting requirements for wetlands that do not fall under federal Clean Water Act permitting jurisdiction. The Senate accepted the change.

House Bill 298/Senate Bill 365  (Affordable and Reliable Energy Act) died for this session Both bills proposed to repeal the state law requiring major electric utilities to generate an increasing percentage of power from renewable energy sources (such as wind turbines and waste-to-energy facilities). Neither bill made it to a floor vote by the May 15 deadline for bills to pass at least one house of the General Assembly to stay alive for the session. Background on the renewable energy portfolio standard controversy can be found in an earlier post.

House Bill 983 (Fisheries Economic Development Act) died in the House without ever coming to a vote.  Commercial fishermen opposed the bill designating red drum, spotted sea trout and striped bass as coastal game fish because it  would have put the fish off-limits for fishermen using large nets and trawls.

Bills in conference to resolve differences between the House and the Senate:

House Bill 94 (Amend Environmental Laws): The Senate took a final vote last Wednesday on the Senate version of House Bill 94 (Amend Environmental Laws). The Senate added a number of entirely new sections to the bill that came over from the House. One of the most controversial new sections would allow oil and gas operations to withhold information on “trade secret” chemicals used in hydraulic fracturing  from the Department of Environment and Natural Resources unless the department needed the information to respond to an environmental or health emergency. See earlier discussion of the Senate’s intervention on behalf of the oil and gas industry  here.  The Senate also added a section limiting groundwater cleanup requirements at permitted waste disposal sites.  The groundwater cleanup language appears to respond to legal action by N.C. Sierra Club and the Waterkeepers Alliance over groundwater contamination at sites where Duke Energy and Progress Energy  disposed of coal ash. With only a few exceptions, the Senate language would make groundwater cleanup unnecessary as long as the contamination is confined to the property where the waste disposal site is located.

Senate Bill 76 (Domestic Energy Jobs Act):  The Senate bill made a number of changes to the 2012 law that set the stage for adoption of rules on hydraulic fracturing. One of the most controversial sections of the bill would repeal a longstanding state law that prohibits underground injection of waste. The Senate bill also repeals a  requirement that agents engaged in the acquisition or leasing of land for energy development must register with the Department of Environment and Natural Resources. The House made significant changes to the Senate bill; an earlier post talks about the differences between the House and the Senate. The bill has been in conference  since June 19.

Bills approved by one chamber of the legislature and waiting for action in the other:

House Bill 74 (Periodic Review and Expiration of Rules) passed the House and is sitting in the Senate Rules Committee. As described here, the bill requires state agencies to review and readopt existing regulations or  the rules automatically expire.

House Bill 300 (Cities/Public Trust Rights) passed the House and has been sent to the Senate State and Local Government Committee. The bill would allow coastal cities to take action  to address nuisance conditions on the public trust beach. For background on the lawsuit that led to the legislation, see this post.

House Bill 938 (Improve Wetlands Mitigation Programs) legislatively sets mitigation requirements for impacts to isolated wetlands and intermittent streams, overriding mitigation rules adopted by the state’s Environmental Management Commission. The bill passed the House and is waiting for a hearing in the Senate’s Agriculture and Environment Committee.

House Bill 1011 (Government Reorganization and Efficiency Act)  has  the House proposals for reorganization of boards and commissions, including changes in appointments to the Environmental Management Commission, Coastal Resources Commission and Wildlife Resources Commission. The House  passed this bill after the original board and commission reorganization bill (Senate Bill 10) died when the House refused to accept the compromise bill negotiated by House and Senate conferees.  House Bill 1011 is being held in the Senate Rules Committee; in the meantime, the Senate put its changes to Environmental Management Commission and Coastal Resources Commission appointments in the Senate budget bill. The House and Senate are also in conference over different budget bills.

Senate Bill 151 (Coastal Policy Reform Act) makes a number of changes to fisheries laws; includes a section (similar to House Bill 300) that allows coastal cities to address nuisance conditions on the public trust beach; and amends a 2011  law allowing limited use of terminal groin structures for erosion control on inlet shorelines. The Senate  bill eliminates the existing cap on the number of terminal groin structures that  can  be permitted and weakens some of the permitting requirements. This is another issue with a long history.  For about  forty years, state environmental rules completely prohibited use of hard erosion control structures like groins, jetties and seawalls on the state’s ocean and inlet shorelines. The General Assembly opened the door to construction of terminal groins on inlet shorelines in 2011 legislation after a  contentious legislative battle. The 2011 legislation allowed DENR to issue permits for no more than four terminal groins as part of a pilot project and put strict conditions on groin construction. The Senate would remove any restriction on the number of terminal groins and also repeal some of the permitting standards enacted just two years ago. The House received the Senate bill on May 16 and referred it to the House Environment Committee, which has not yet brought the bill up for discussion.

Senate Bill 328 (Solid Waste Reform Act of 2013) passed the Senate and has gone over to the House. The bill  repeals  a number of  landfill siting and construction standards adopted by the General Assembly  in 2007 following a study of landfill permitting. An earlier post described the Senate’s proposed changes. The bill  has been referred to the House Environment Committee and then to the House Finance Committee.

Senate Bill 341 (Amend Interbasin Transfer Law) simplifies approval of some new interbasin transfers (generally in the coastal area) and modifications to  existing interbasin transfers. The House received the bill from the Senate on May 2; the House Environment Committee has not yet brought the bill up for discussion.

Senate Bill 515 (Jordan Lake Water Quality Act) repeals water quality rules designed to reduce nutrient pollution in the Jordan Lake reservoir and calls for a legislative study. A short version of the long history of the Jordan Lake rules can be found here.  The House received the bill on May 16 and referred the bill to the House Environment Committee; the committee has not yet scheduled the bill for discussion.

Senate Bill 612 (Regulatory Reform Act of 2013) follows up on 2012 legislation designed to make rulemaking (and particularly environmental rulemaking) more difficult. The bill requires state environmental agencies to rewrite state rules that  are  more strict than corresponding federal rules. An earlier post talks about the possible result. Senate Bill 612 would also prevent local governments from adopting ordinances that are more strict than state environmental rules — with some of the same unintended consequences.   Section 3 of Senate Bill 612  limits requirements for groundwater cleanup at permitted waste disposal sites. The House received the bill from the Senate on May 6, but has not yet  brought the bill up in the House Environment Committee. In the meantime,  the Senate  added the groundwater cleanup  language to House Bill 94,  which is now in conference to resolve  differences between the House and Senate versions.

Cautionary Note: To quote Yogi Berra,  “It ain’t over ’till it’s over”. So the fact that a controversial   proposal appears to have died with a bill that didn’t make cross-over or has been removed from a bill that went on to be adopted does not mean that it  won’t appear again. Sometimes it will appear more than once — in the budget, in another bill, or possibly in both — and  “it’s deja vu all over again”. (Yogi one more time.)

Another Solid Waste Issue

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

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

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

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

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