September 24, 2014. On September 20, Senate Bill 729 (the Coal Ash Management Act) became law without the Governor’s signature. Governor Pat McCrory had expressed concern that a provision in the bill giving legislators the majority of appointments to the new Coal Ash Management Commission violated the constitutional doctrine of separation of powers. Rather than veto the bill, the governor allowed the bill to become law without his signature and signaled an intent to ask the N.C. Supreme Court for an advisory opinion on the constitutionality of the appointments provision.
In the meantime, Senate Bill 729 — now Session Law 2014-122 — makes a number of immediate changes to state law and sets in motion a 15-year process for remediating and then closing thirty-three existing coal ash impoundments. An earlier post provided an overview of the final bill and now attention will turn to implementation.
- Effective October 1, 2014 the law prohibits utilities from building new impoundments or expanding existing impoundments for disposal of coal ash.
- Also effective October 1, 2014, the law prohibits use of impoundments at closed electric generating facilities for coal ash disposal. The provision prevents a utility from transporting coal ash from an active generation plant to a closed facility for disposal in an impoundment.
- By October 1, 2014, the utilities must submit a survey to the Department of Environment and Natural Resources (DENR) identifying all drinking water wells within 1/2 mile down-gradient of an impoundment.
- The law requires the utilities to submit groundwater assessment plans and maps showing discharges to surface waters (both permitted and unpermitted) for all 33 impoundments by December 31, 2014. The maps and groundwater assessment plans represent the first in a series of steps leading to remediation of groundwater contamination around the impoundments and elimination of unpermitted discharges to surface waters.
- S.L. 2014-122 sets much more stringent standards for use of coal ash in large structural fill projects and puts a moratorium on smaller structural fill projects to study appropriate standards for those projects. (“Structural fill” projects involve the use of coal combustion residuals as fill material to level a construction site, build up a road bed, or otherwise change site elevation before construction.) The new standards include setbacks from surface waters and drinking water wells; a requirement for synthetic liners and a leachate collection system; a four-foot separation between the lowest level of fill and groundwater; financial assurance; and standards for closure.
- Amendments to the state Dam Safety Act require dam owners to prepare an emergency action plan for each high and intermediate risk impoundment. (The provision applies to all impoundments regulated under the Dam Safety Act and not just coal ash impoundments.)
- Dam Safety Act amendments also set minimum requirements for inspection of coal ash impoundment by the utilities (weekly and following storms) and by DENR (annually).
- A new fee imposed on electric utilities that own coal ash impoundments will fund regulatory activities at DENR and the new Coal Ash Management Commission. The law authorizes use of the revenue to create 5 positions in the Department of Public Safety to support the Coal Ash Management Commission and 25 new positions in DENR.
- S.L. 2014-122 amends state law to require notice to DENR of any wastewater spill to surface waters as soon as practicable, but no more than 24 hours after the spill reaches surface waters. The law also shortens the time allowed to provide notice to the public from 48 hours to 24 hours.
- S.L. 2014-122 repeals most of a controversial 2013 regulatory reform provision on groundwater remediation by eliminating statutory language that: 1. created a presumption that the groundwater compliance boundary around a waste disposal site should be at the property boundary; and 2. limited DENR’s ability to require measures within the compliance boundary to control groundwater contamination. A provision in the same section of S.L. 2014-122 created a new controversy, however, by reversing a recent superior court decision interpreting state groundwater remediation rules. (For an explanation of the controversy, see the earlier post.)
- The law creates new civil and criminal penalties for violation of laws related to management of coal ash.
The law also requires a number of actions over the next year intended to expand beneficial uses of coal ash. The most unusual provision requires the electric utilities to issue a request for proposals by December 31, 2014 for:
(i) the conduct of a market analysis for the concrete industry and other industries that might beneficially use coal combustion residuals and coal combustion products; (ii) the study of the feasibility and advisability of installation of technology to convert existing and newly generated coal combustion residuals to commercial-grade coal combustion products suitable for use in the concrete industry and other industries that might beneficially use coal combustion residuals; and (iii) an examination of all innovative technologies that might be applied to diminish, recycle or reuse, or mitigate the impact of existing and newly generated coal combustion residuals.
S.L. 2014-122 gives the impoundments at four coal-fired plants (Dan River Steam Station, Riverbend Steam Station, Asheville Steam Electric Generating Plant and the Sutton Plant) priority for final closure. The law then directs DENR to classify the other 10 impoundment sites in the state based on risk by the end of 2015. Under the law, final closure of impoundments classified as high or intermediate risk will require removal of all coal ash for disposal in a lined industrial landfill (on or off-site) or for beneficial reuse. Impoundments classified as low risk have the additional closure option of capping the coal ash in place as long as the closure plan includes measures that will prevent groundwater contamination beyond the compliance boundary.
S.L. 2014-122 sets final closure deadlines based on the risk classification — December 31, 2019 for high risk impoundments; December 31, 2024 for intermediate risk impoundments and December 31, 2029 for low risk impoundments.
OPPORTUNITIES AND PITFALLS
S.L. 2014-122 marks a real and significant change in environmental policy — forcing a transition away from use of wet impoundments for coal ash disposal and toward more protective methods of disposal and safe reuse. In support of that policy decision, the law provides statutory timelines for assessment, remediation and final closure of all 33 impoundments and new resources for state oversight.
Even with resources to implement S.L. 2014-122, it will be difficult to hold to the timelines in the law without an ongoing commitment on the part of the General Assembly, DENR and the electric utilities. Any number of bureaucratic and technical problems could delay or derail implementation of the law. (The thirty new positions authorized under the bill do not magically appear when the bill becomes law — getting from legislative authorization of a new position to having a person on the job usually takes months.) The goals of the law won’t be met if the state too easily gives in to unnecessary delays.
Decisions on remediation; classification of impoundments for closure; and approval of closure plans will present a different kind of challenge. There will be an inevitable tension between the utilities’ desire to keep the cost of compliance low and the state’s responsibility to protect groundwater and surface water resources. The bill creates another potential source of tension by giving the new Coal Ash Management Commission — not DENR — the authority to make final decisions on classification of impoundments and approval of closure plans. The Commission will have a very small staff and the law does not require any commission member to have expertise in groundwater hydrology or water quality – likely to be critical in prioritizing sites for closure and approving closure plans. With good luck and the right appointments, the arrangement might work; or it could lead to conflict and overly politicized decision-making.