First Meeting of Coal Ash Management Commission

November 10, 2014. The N.C. Coal Ash Management Commission will meet for the first time at 9:00 a.m. on Friday, November 14 at the Friday Center in Chapel Hill.  The agenda for the first meeting will be orientation for the new commissioners, including presentations on open meetings  and public records law;  the Coal Ash Management Act (Session Law 2014-122);  and   issues surrounding coal ash disposal. You can find a copy of the meeting agenda on the State Government Radio website here.

The Coal Ash Management Act gave the commission two tasks to complete in the next year:

1. A report to the legislature’s Environmental Review Commission (ERC) on ways to “promote, incentivize and prioritize  beneficial use of coal combustion products”  by  December 1, 2014.   (Expect a request for additional time.)

2.  By October 1, 2015, the commission must report on the potential for closing some coal ash ponds with no further action or natural attenuation. Natural attenuation relies on long-term, natural degradation of  contaminants rather than active  remediation.  It isn’t clear how legislators plan to use the report.  DENR’s Division of Water Resources  has responsibility for implementing  existing state groundwater protection rules adopted by the Environmental Management Commission. The groundwater remediation rule, 15A NCAC 2L.0106,  already allows DENR to approve natural attenuation of groundwater if other remediation goals can be met. Those  goals include:  removal, treatment or  control of  the original contamination source; elimination of  any continuing source of contamination (including highly contaminated soils); prevention of fire, explosion, and noxious fumes; and containment of the contamination to prevent  migration and violation of groundwater standards beyond a compliance boundary. The Coal Ash Management Act  specifically referenced the  existing groundwater remediation standards in  requirements for assessment and remediation of the coal ash impoundments.

The commission may spend some part of the first year looking toward  early 2016 when the commission will need to take final action on  prioritization of all of the coal ash impoundments as high, intermediate or low risk. This may be the commission’s most important responsibility, since the Coal Ash Management Act links the  risk classification  to specific closure methods. Coal ash impoundments classified as high or intermediate risk must be closed by permanently removing the coal ash or by temporarily moving the ash to allow the impoundment to be converted to a lined industrial landfill. But impoundments classified as low risk can be closed by capping the coal ash  in place — as long as the closure plan includes  measures that will prevent exceedence of groundwater standards beyond the compliance boundary after closure.

The  stakes could be high. Duke Energy has  advocated for wide use of capping in place  because of the lower cost.  See an earlier post  for a link to a Duke Energy presentation to legislators on the comparative costs of removing the coal ash  versus capping the ash in place.  But  information already available suggests that most of the coal ash  impoundments have multiple risk factors, including existing groundwater contamination.

The law requires DENR to  propose a  risk classification for each impoundment by December 31, 2015, but gives the commission final approval authority.  The Coal Ash Management Act  lists  a number of  factors to consider in prioritizing impoundments, but does not provide guidance on how to translate the factors into high, intermediate and low risk categories.   Specific criteria for sorting the impoundments into risk categories would make prioritization more consistent and predictable, but development of those criteria would likely require either additional legislation or rule adoption. (The Environmental Management Commission has authority to adopt rules to implement the Coal Ash Management Act.)  Otherwise, the Coal Ash Management Commission will be left to figure out in the next year how to make those prioritization decisions.