Monthly Archives: April 2014

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.


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 photo of 2004 Peeks Creek landslide, Macon County, N.C. (

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.


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”.