Monthly Archives: February 2014

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.