Tag Archives: Contamination

Environmental Issues in the Courts

October 26, 2014.  Some recent state and federal court decisions dealing with   environmental controversies in North Carolina:

Cape Fear River Watch, et al v. Environmental Management Commission. An earlier post provides background on the issues in the case. In  brief,  several environmental organizations  appealed a 2012 decision by the  N.C.  Environmental Management Commission  (EMC)   interpreting state groundwater rules to give  older, unpermitted waste disposal facilities the same groundwater remediation  options available to  permitted waste disposal facilities. All of the coal ash ponds in N.C would be considered “unpermitted” waste disposal facilities and  Duke Energy intervened in the  Cape Fear River Watch case to support the EMC  decision.

In March, Superior Court Judge Paul Ridgeway reversed part of the  EMC decision. Judge Ridgeway  interpreted groundwater remediation rules to require  facilities permitted before December 30, 1983  to  immediately remove the source of any groundwater contamination.  The decision has significant implications for coal ash ponds and old, unlined landfills where the waste material disposed of in the facility often turns out to be the contamination source. Under Judge Ridgeway’s interpretation of the rules,   waste material causing groundwater contamination would have to be immediately excavated and removed.  Although state rules allow the use of other (potentially less costly) measures to control groundwater contamination,  pre-1984 ash ponds and landfills would not have any option other than removal of the waste.

Duke Energy appealed Judge Ridgeway’s  decision to the N.C. Court of Appeals.  But before the Court of Appeals could take up the case, two things happened to alter the course of the litigation.  First,  the General Assembly enacted legislation  intended to moot the  Ridgeway decision. Section 12 of Session Law 2014-122 (the Coal Ash Management Act of 2014)  amends a groundwater statute to direct the EMC to require remediation of  groundwater contamination at a waste disposal facility without regard to the date  the facility had been permitted.  Legislators acknowledged that the provision was intended to reverse  Judge  Ridgeway’s interpretation of  the groundwater  remediation rules  as applied to facilities permitted before  December 30, 1983. As a practical matter, the new law allows DENR to approve an alternative means of controlling groundwater contamination associated with a  coal ash pond or pre-1984  landfill but does not guarantee approval.

Then,  on October 10, 2014,  the N.C. Supreme Court issued an  order removing  Cape Fear River Watch v. Environmental Management Commission from the Court of Appeals docket  to  the Supreme Court docket.  The Supreme Court removed the case on its own motion, surprising the parties and their lawyers.  (The court  issued similar orders in four other civil cases at around the same time.)  The court’s action  has no recent precedent and little precedent  in the court’s history. The one-paragraph  order offered no explanation for removal of the case to the Supreme Court.  The next step in the Cape Fear River Watch case will now be the filing of briefs in the  N.C. Supreme Court.

City of Asheville v. State of N.C. and Metropolitan Sewerage District of Buncombe County.  In 2013, the General Assembly enacted a law transferring the City of Asheville’s water system to the  Metropolitan Sewerage District of Buncombe County.  Session Law 2013-50,  drafted  to apply only  to the City of Asheville water system,  had the unprecedented effect of transferring the system’s assets  (infrastructure and a 17,000 acre watershed) and debts (over $67 million in water bonds) to a new entity without the city’s consent and without compensation.  Two earlier posts, here and here, provide background on the legislative action and constitutional issues raised by the law.

In June, N.C. Superior Court Judge Howard Manning issued an order concluding that Session Law 2013-50 violated several provisions in the  N.C. Constitution. Among Judge Manning’s findings:

♦ The law violated Article II, Section 24  of the N.C. Constitution which prohibits the General Assembly from adopting  certain types of legislation  to apply in  only one jurisdiction in the state. Judge Manning concluded Session Law 2013-50 violated  constitutional  prohibitions against local acts relating to “health, sanitation or the abatement of nuisances”  and local acts regulating  nonnavigable streams.  Although  Session Law 2013-50 did not mention the City of Asheville or the  Metropolitan Sewerage District of Buncombe County  by name,  it described water systems affected by the law  in a way that only applied to the Asheville system.  As a result, Judge Manning found the law to be an unconstitutional  local act addressing  health and sanitation (operation of a drinking water system) and regulation of nonnavigable streams.

♦  The law violated Article I, Section 19 by transferring the Asheville water system to a different entity without the city’s consent and without any rational basis. Article I, Section 19, known as the “law of the land” clause of the N.C. Constitution, has been interpreted to require both due process and equal protection. Judge Manning found Session Law 2013-50 violated the clause by depriving the City of Asheville of property without any  rational basis, suggesting a due process violation and expressly finding a denial of equal protection.

♦ Other sections of  Judge Manning’s  order concluded that Session Law 2013-50 violated Article I, Section 19 and Article 1, Section 35 (a broad reservation of rights) by taking city-owned property and by doing so without providing compensation for the property.

One key to the court’s decision:  operation of a  water system is considered to be a proprietary rather than a governmental function. Proprietary functions don’t involve peculiarly governmental powers and could also be carried out by a nongovernmental entity. Other examples of proprietary functions would be  operation of an electric utility, a recreational facility  or a sports venue.   With respect to proprietary functions,  Judge Manning concluded that  local governments have  the same constitutional protection against  uncompensated taking of property as a nongovernmental entity.

Judge Manning’s order did not address the city’s argument that the law also unconstitutionally interfered with contracts between the city and bondholders.  The state, throughout the Attorney General’s Office, indicated an intent to appeal the decision to the N.C. Court of Appeals. A final decision by the appeals court would not be expected for about a year.

Erica Y. Bryant, et al v. United States, 11th Circuit Court of Appeals, October 14, 2014.  The plaintiffs  had sued the United States government seeking compensation for health problems allegedly caused by exposure to contaminated drinking water at the Camp Lejuene Marine Corps Base near Jacksonville,  North Carolina.  A recent U.S. Supreme Court decision in another North Carolina groundwater contamination case, Waldberger v.  CTS, Inc.,   held that the state’s 10-year statute of repose barred a lawsuit alleging injury and property damage caused by groundwater contamination filed more than 10 years after the  last act contributing to the contamination —  even though the plaintiffs first learned of the contamination much later.  (You can find more on the Waldberger decision in an earlier post. The same post also includes additional background on the contamination problem at Camp Lejuene.)

The N.C. General Assembly responded to the  Waldberger decision  by enacting a law excluding claims for property damage and personal injury related to contaminated groundwater from the 10-year statute of repose. See Session Law 2014-17.  The law was written to apply to both pending cases and cases filed after its enactment. In the Bryant decision, however, the 11th Circuit Court of Appeals ruled that the new law could not retroactively apply to pending cases. The appeals court treated the 10-year statute of repose as a sort of property interest benefitting (in this case) the U.S. government. The court ruled  that the state legislature could not retroactively remove that benefit.  The decision turned, in part, on the court’s conclusion that Session Law 2014-17 changed rather than clarified the state’s prior law.

The 11th Circuit decision seems to leave the Camp Lejeune plaintiffs without any legal remedy for long-term health effects allegedly caused by exposure to the contaminated drinking water.

N.C. Enacts Coal Ash Legislation

August 21, 2014.  After two weeks of drama in which the House and Senate had a falling out over one critical provision  and threatened to adjourn without voting on a final bill, the N.C. General Assembly enacted coal ash legislation by strong bipartisan margins in both chambers.  The  final bill now goes to Governor Pat McCrory for signature.  Senate Bill 729  follows eighteen months of controversy over the environmental impacts of the 33 coal ash impoundments located at 14  electric generating facilities  in North Carolina and the McCrory administration’s response to the problems.   Coal ash became an urgent  legislative priority after  a stormwater pipe under an  impoundment in Rockingham County ruptured and spilled more that 30,000 tons of coal ash into the Dan River. (Earlier posts on N.C. coal ash impoundments  and the Dan River spill here and here.)

What Senate Bill 729  Does:

♦ Sets timelines for  conversion from  wet to dry ash handling;  an  end to deposition of  coal combustion residuals (CCRs)  in wet impoundments; and final closure of  all 33 impoundments under  environmental standards.  Nothing in existing state or federal law otherwise requires any of those actions. Under current law, the state  can take enforcement action  to require a utility to address  unpermitted  wastewater  discharges or groundwater standard violations associated with an impoundment, but it is more difficult to effect comprehensive policy change through individual enforcement cases.

Under prior N.C. law, CCRs in a wet impoundment had been considered “wastewater residuals” and  exempt from the state’s solid waste disposal laws.  Senate Bill 729   requires CCRs removed from a wet impoundment  to be disposed of as solid waste.  Unless put to an approved reuse, the  bill requires disposal in a landfill that meets the most current standards  for  industrial landfills (including a liner system, leachate collection,  groundwater monitoring, and financial assurance).

♦  Sets  timelines for groundwater assessment and remediation  for all 33 CCR impoundments.  The state would otherwise have to seek assessment and remediation through enforcement cases. Even in response to enforcement action, existing state  rules generally allow the person (or company) responsible for the contamination to propose a schedule for assessment and remediation.

[Note:  In  litigation over  how state groundwater remediation rules apply to  pre-1984 CCR impoundments, a superior court judge recently interpreted the rules to require “immediate” removal of  coal ash causing  groundwater contamination beyond the compliance boundary. Senate Bill 729 reverses that decision;  see  “Controversies” below.]

♦ Requires the utilities to  identify drinking water wells within one-half  mile down-gradient of each CCR impoundment; test  wells potentially affected by groundwater contamination from the impoundment;  and provide  an alternative water supply if  testing finds a contaminant associated with  CCRs at levels exceeding the groundwater standard.  Under existing law, DENR can use enforcement authority to require a person responsible for groundwater contamination  to  identify and test wells for contamination.  Enforcement actions  focus on conditions at individual sites and the groundwater assessments tend to be more incremental, gradually working out from the known source of contamination and continuing  only as far as testing  shows high levels of contamination. The  comprehensive requirements of Senate Bill 729 may provide more information on well contamination more quickly.

The bill requires the utilities to provide  alternative water supply to any well owner whose drinking water well shows high levels of a contaminant associated with coal combustion residuals.  Without this kind of statutory remedy, a well owner may have to sue for damage to the water supply well — bearing both the upfront costs of  litigation and the burden of proving the impoundment caused the  well contamination. Senate Bill 729  requires  the electric utilities to provide an alternative drinking water supply within 24 hours  and alternative water supply for other purposes (such as bathing) within thirty days based  simply on data showing  that the well water exceeds the  groundwater standard for any constituent associated with CCRs.

♦ Requires the utilities to inspect all CCR impoundments;  report on all wastewater discharges (permitted and unpermitted) ;  and take action to eliminate unpermitted discharges to surface waters on a timeline set in the law. DENR has existing authority to take enforcement action in response to an unpermitted discharge of wastewater to surface waters, but would  normally have to take those actions on a site by site basis. Senate Bill 729 may prompt earlier identification and correction of the violations.

♦  Establishes stricter design, construction and siting standards for large projects  using coal ash as fill for construction projects and puts a moratorium on smaller structural fill projects. (Any project using more than 8,000 tons of coal ash per acres or more than 80,000 tons  total will be considered a “large” structural fill.) Existing  state rules  governing use of coal ash as structural fill have significant gaps. The new law fills a number of those gaps by requiring large structural fill projects to be lined;  have leachate collection systems;   monitor for groundwater impacts and provide financial assurance.  The bill also  establishes new siting criteria for large structural fills, including  setbacks from streams, wetlands, wells and property boundaries.

The bill puts a one-year moratorium on smaller structural fill projects while DENR studies  the adequacy of standards for those projects. The bill allows for two exceptions to the moratorium on small structural fills: 1. voluntary compliance with the new, stricter standards applied to large structural fill projects; or 2. use of CCRs as structural fill for a  public road  project.

♦ Amends the state Dam Safety Act to require Emergency Action Plans for all  high or intermediate hazard dams (including CCR impoundments) and  sets specific inspection requirements for CCR impoundments.

♦ Amends water quality laws to require  earlier notice to DENR and to the public following a wastewater spill that reaches surface waters. Prior law had been unclear about notice to DENR and allowed 48 hours  for notice to the public. Senate Bill 729 requires notice to DENR as soon as practicable  (and no later than 24 hours after the spill reaches surface waters) and to notify the  public within 24 hours. The new notice requirements apply to all wastewater spills and not just those associated with CCR impoundments.

♦ Repeals  much  of a 2013 regulatory reform provision dealing with groundwater contamination. Senate Bill 729   repeals two significant parts of the 2013 law: 1. a  presumption that the groundwater compliance boundary should be at the property line;  and 2.  restrictions on  DENR’s ability to require action inside the compliance boundary to control  groundwater contamination. (See the section on groundwater legislation  in an earlier post  for  more explanation of  what the 2013 provision did and Senate Bill 729 now undoes.)

♦ Imposes a new fee on electric utilities that own CCR impoundments to support implementation of the law. The bill allocates funds for 25 new  positions in DENR to work on coal ash and 5 positions in the Department of Public Safety to support the Coal Ash Management Commission.

Weak Points:

Creating a  new Coal Ash Management Commission in the Department of Public Safety with  authority to overrule DENR decisions on prioritization of impoundments for closure and approval of closure plans — but without the expertise or staff support to make those decisions. The Department of Public Safety has no experience with implementation of state and federal environmental laws and the bill authorizes a small staff of five to support all of the commission’s activities.  Commission appointment criteria do not require any member to have expertise in  groundwater hydrology or water quality  –  likely to be critical in prioritizing sites for closure and approving closure plans.

The bill provides few guiding standards for classifying impoundments based on risk. Risk classification will be one of the most important decisions required under the law  because the classification determines whether coal ash has to be removed from the site or can potentially be capped in place. The bill lists a number of factors to be considered, but provides no guidance on how to translate the  factors into high, intermediate and low risk classifications. Existing state programs that use similar classification systems to guide remediation work  have gone through rulemaking to  adopt specific criteria for defining high, intermediate and low risk. In the absence of rulemaking, the lack of legislative guidance could lead to inconsistent and arbitrary decision-making. Senate Bill 729   identifies four sites for immediate closure and in debating the bill a number of legislators questioned  the basis for prioritizing those four over others with similar environmental problems. Those kinds of question aren’t going to go away when the prioritization process shifts over to DENR and the new commission.

The bill authorizes  the Coal Ash Management Commission to issue variances from the impoundment closure deadlines, although the final version of the bill  allows only one variance of no more than three years for an individual impoundment.

Controversies:

In debate on the final bill, Democratic lawmakers again raised concerns about  the impact on ratepayers if  utilities  try to recover assessment and cleanup costs in a rate case. Senate Bill 729 prevents  utilities from recovering costs associated with an illegal spill (like the one on the Dan River), but only puts a  brief moratorium on recovery of  costs associated with assessment, cleanup and closure of coal ash impoundments.  The moratorium ends January 15, 2015 — before the utilities are likely to have incurred significant costs.  Some  legislators  would clearly prefer to leave the cost recovery issue entirely to the N.C. Utilities Commission; others  suggested  the General Assembly will  have time to revisit the cost recovery issue next session.

A number of environmental organizations have criticized the bill for potentially allowing use of capping in place to close impoundments that have CCRs  in  close proximity to  groundwater. This  issue  nearly derailed the bill completely  as House and Senate conferees tried to reach agreement on a final bill.     Both House and Senate versions of the bill required removal of CCRs from impoundments classified as high or intermediate risk.  Although worded differently, both versions of the bill allowed low risk impoundments to be closed by dewatering the coal ash and  installing an impermeable clay cap over the ash under standards  applied to closure of solid waste landfills  — the practice known as  “capping in place”.   Neither version of the bill  addressed  the concern  that a “low risk” impoundment may  be in close proximity to groundwater, allowing  CCRs to be a continuing source of groundwater contamination even after installation of a cap.

House  members  raised the issue for the first time in conference and proposed  new language to bar  “capping in place” if any part of the impoundment was located below the seasonal high water table. See an earlier post for more on the conflict between House and Senate conferees and the cost concern in the background of  debates over capping in  place. The final bill did not include the language proposed by House conferees, but added a sentence  barring approval of  a “cap in place” closure

…unless the Department finds that the proposed closure plan includes design measures to prevent, upon the plan’s full implementation, post-closure exceedances of groundwater quality standards beyond the compliance boundary that are attributable to constituents associated with the presence of the impoundment.

The new language would allow the utilities to cap in place  CCRs  in close proximity to groundwater as long as the closure plan  includes other measures (such as engineered groundwater remediation systems) to  prevent groundwater standard violations  beyond the compliance boundary.   The language clearly does not provide as high a level of protection  as a separation between the  coal ash  and groundwater — but  would   be consistent  with existing state  rules allowing DENR to approve a groundwater remediation plan based on use of engineered systems  to treat or control the contamination source and prevent groundwater violations beyond the compliance boundary. The question may be the level of confidence in DENR’s review and approval of remediation measures and the utilities’ commitment to long-term maintenance of remediation systems.

A final (related) controversy has to do with  language in Senate Bill 729  to   overrule a recent superior court decision interpreting state groundwater rules to impose more rigid remediation requirements  on waste disposal systems permitted before 1984. An earlier  post discusses the issue and Judge Ridgeway’s decision (now on appeal to the N.C. Court of Appeals) in more detail. In brief, the judge interpreted  state rules to require  immediate removal of the contamination source at any pre-1984 waste disposal site where contamination has caused a exceedance of a groundwater standard beyond the compliance boundary.   At a waste disposal facility, the contamination source usually turns out to be the waste disposed of in the facility  — which  could  be garbage  put in  a landfill or coal ash placed in an impoundment. The judge’s interpretation does not allow the alternative of using engineered groundwater remediation systems to treat or control the source of contamination at these older facilities — something the rules  allow for newer  facilities.

Senate Bill 729 reverses the effect of Judge Ridgeway’s decision by requiring groundwater remediation rules to be applied consistently to all waste disposal facilities without regard to the date of permitting.  Legislative intervention  seemed to be driven  by  some combination of concern about completely foreclosing the possibility of capping coal ash in place  and the impact of the decision on county and municipal waste disposal sites permitted before 1984.

The bill now sits  on the Governor’s desk, waiting for signature or veto.

First Legislative Response to CTS Corp. v. Waldburger

June 13, 2014.  The recent U.S. Supreme Court decision in CTS Corp. v. Waldburger  effectively denied the North Carolina plaintiffs the ability to seek compensation for property damage and health problems  caused by contamination of their drinking water wells. As noted in an earlier post, the decision  means that a North Carolina law barring  tort claims filed more than ten years after the last act giving rise to the claim will continue to be a significant obstacle for plaintiffs injured by environmental contamination. [See N.C.G.S. 1-52(16)]

The N.C. House of Representatives quickly responded to the CTS decision with proposed legislation. The House  gutted  a Senate bill on appearance bonds, replacing the original bill language with a provision excluding  some tort claims  “caused or contributed to by the consumption, exposure, or use of water supplied from groundwater contaminated by a hazardous substance, pollutant, or contaminant” from the 10-year  statute of repose in  G.S. 1-52(16).   Yesterday, a  House judiciary committee approved the new version  of Senate Bill 574; with no other committee referrals, the bill can go directly to the House calendar.

The bill would clearly benefit plaintiffs in  some  pending  toxic tort cases  — including  Marines who have  filed suit  over contaminated  drinking water at Camp Lejeune.   Presumably, the bill  intends to preserve the nuisance action filed by the plaintiffs in the CTS case.  The only question may come in interpretation of the bill’s effective date clause; the bill applies the exclusion to a pending  action “if there has been no final disposition with prejudice against that plaintiff issued by a court of competent jurisdiction as to all the plaintiff’s claims for relief to which this act otherwise applies”. The Supreme Court decision in CTS v. Waldburger  confirms the dismissal of the plaintiffs’ entire nuisance action based on the state statute of repose, which would certainly be considered a final disposition. If the intent of the bill is to resurrect the CTS plaintiffs’ claims, the effective date language may need to be clarified.

Unfortunately, the current bill draft does not fix the fundamental problem  created  by a 10-year statute of repose for toxic tort claims because it only provides relief to claimants whose last exposure to  contaminated groundwater occurred on or before June 19, 2013.   The bill  keeps  the 10-year statute of repose for damage claims based on exposure to environmental contamination that continues beyond that date or first occurs after that date. The limited exclusion from the statute of repose sunsets completely in 2023.

The same circumstances that made it impossible for the CTS plaintiffs to bring a damage claim within the 10 year statute of repose still exist — groundwater contamination may only be detected years after the last act that caused the contamination; limited state enforcement resources mean  delays  in fully assessing many contaminated sites; and  some of the health effects of groundwater contamination only develop over decades.  Pending cases don’t represent the universe of environmental contamination injuries in the state. New contamination incidents   continue to be discovered with some regularity as development moves into areas with groundwater contamination from past industrial activity or old waste disposal sites.  As noted in the earlier post, it is not unusual for the last act contributing to property damage or health effects from environmental contamination to have occurred more than a decade before discovery of the problem. As long as those conditions exist,  the  10-year statute of repose will  continue to  prevent people who have been harmed by environmental contamination from seeking compensation for personal injury and property damage.

One more piece of background information. Bloomberg News quoted John Korzen (director of the Appellate Advocacy Clinic at Wake Forest University School of Law, which represented the plaintiffs in the CTS case) as saying that only Connecticut, Oregon, Kansas and North Carolina have generally applicable statutes of repose.

Closing the Courthouse Door on Pollution Victims

June 11, 2014. In a case out of North Carolina, the United State Supreme Court has ruled that a state can  cut off the time allowed for someone injured by environmental contamination to sue the person responsible  —  in many cases, closing off any legal remedy before  the  plaintiff even knows about the contamination and the damage it has caused.  The decision in CTS Corp. v. Waldburger   leaves the plaintiffs in that  case without any recourse against the  company alleged to be responsible for unsafe levels of industrial solvents in their drinking water wells.  But unless either Congress or the N.C. General Assembly acts,  the decision also closes the door on many others injured by  environmental contamination.

The facts (as stated in the lower federal appeals court decision).  CTS operated an electroplating facility on Mills Gap Road in Asheville, N.C. from 1959 to 1985 and used a number of toxic chemicals in the manufacturing processes including trichloroethylene (TCE), cyanide, chromium VI and lead. In 1987, CTS sold much of  the 54-acre site to a realty company that in turn sold  the property for residential development.  Twelve years later,  plaintiffs David Bradley and Renee Richardson learned that their home drinking water well  had high levels of two solvents,  TCE and cis-1, 2-dichloroethane (DCE),  associated with increased cancer risk and other health effects.    In 2011,   Bradley, Richardson and 23 other property owners filed a nuisance action against  CTS   seeking  remediation of  the contamination and damages for current and future harm  including reduced property values and potential health impacts.

The legal issue.   Under North Carolina law, there is a three year statute of limitation for personal injury or property damage claims ( in legalese, “torts”).  The statute of limitation only begins to run after the plaintiff knows or should have known of the injury.  But the same law  bars the filing of a tort  claim more than 10 years  after the  last act of the defendant that gives rise to the damage claim  even if the plaintiff did not know of the injury until later.  This kind of outer limit on  tort claims, known as a “statute of repose”,   cannot be suspended even for good cause.  Although the plaintiffs in the CTS case filed suit within three years after first learning of the well contamination as required by the statute of limitation, CTS Corporation’s  “last act” had been the sale of the Mills Gap Road property in 1987 — 22 years earlier. In federal district court, CTS successfully moved to dismiss  the plaintiff’s nuisance action based on  North Carolina’s 10-year  “statute of repose”.

The issue on appeal was whether the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA)   preempts  the state’s 10-year “statute of repose”.   CERCLA sets a federal  framework for response to environmental contamination  caused by hazardous substances,  but Congress  elected to rely on state  laws to provide a remedy for individuals harmed by environmental contamination.   Since environmental  contamination can go undetected for long periods of time and cause injury — such as cancer — that only develops  over  decades,  CERCLA provides that the time allowed to bring a  claim under state tort  law only begins to run when the plaintiff learns or should have learned  of the damage or injury.  CERCLA  § 9658  expressly preempts state laws that use a different starting point for time limitations on  toxic tort claims.

The U.S. Supreme Court decision. The Fourth Circuit Court of Appeals  concluded  that  CERCLA § 9658 preempts both  statutes of limitation and statutes of repose, allowing the plaintiff’s lawsuit against CTS to go forward. The U.S. Supreme Court (after a long discussion of  the differences between statutes of limitation and statutes of repose and the history of CERCLA § 9658) reversed the  appeals court decision and held that CERCLA § 9658 only preempts statutes of limitation.  As a result, North Carolina’s  10-year statute of repose bars property owners near the CTS site from suing the company for  contamination of their drinking water wells. One of the two dissenting U.S. Supreme Court justices, Stephen Breyer, noted the clear implication of the CTS decision, saying that it

 allows those responsible for environmental contamination…to escape liability for the devastating harm they cause, harm hidden from detection for more than 10 years. Instead of encouraging prompt identification and remediation of toxic contamination before it can kill, the Court’s decision gives contaminators an incentive to conceal the hazards they have created until the repose period has run its full course.

Others affected by the CTS decision.   There have been a number of contamination incidents in North Carolina that follow the pattern of late discovery and delayed understanding of human health effects. Two examples:

U.S. Marine Corps Base Camp Lejeune.  In 1982, the Marine Corps discovered  that drinking water from two of the eight water treatment plants on base had high levels of contaminants.   The Tarawa Terrace water system had high levels of  the dry-cleaning solvent PCE (perchloroethylene or tetrachloroethylene).  PCE has been associated with increased cancer risk;   kidney and liver damage; and  reproductive effects.  (The PCE came from an off-base dry-cleaner that had improperly handled its waste.)    The Agency for Toxic Substances and Disease Registry (ATSDR) has estimated that PCE concentrations in water produced by the Tarawa Terrace water treatment plant exceeded the current federal drinking water standard for much of the 30-year period between  November 1957-February 1987. The most contaminated wells were shut down in February 1985.

In 1985,  Camp Lejeune  also  confirmed contamination in wells supplying  the  Hadnot Point water treatment plant.  The primary contaminant was TCE,  but testing also showed elevated levels of  PCE, benzene and other chemical compounds  produced by degradation of TCE.   The Hadnot Point well contamination came from several different sources —  leaking petroleum underground storage tanks, industrial  spills, and old waste disposal sites. ATSDR  has estimated that water from the Hadnot Point system  exceeded current drinking water standards  for at least one contaminant  from  August 1953 until  January 1985.

Between 500,000 and 1 million Marines and family members may have been exposed to contaminated drinking water at the base before the contaminated wells were shut down in 1985.  Information about the contamination and its possible health effects developed slowly.   ATSDR just published the results of a health  study  of Camp Lejeune Marines on February 19, 2014. The study, reported in Environmental Health,  found a 10% higher incidence of certain cancers among Marines stationed at Camp Lejeune  between 1975-1985 as compared to Marines stationed at Camp Pendleton during the same time period.

Nearly 30 years went by between the initial contamination of the Camp Lejeune wells and discovery of the contamination in 1982. Another 30 years  passed between closure of the most contaminated wells and development of information  on  the potential health effects on a large, but transient, population of service members and their families.  Given the many different parties potentially involved — the owners and operators of several different contamination sources and the Marine Corps  as the water system operator — it may be difficult to pinpoint the timing of every “last act” contributing to injury.  But given the 60-year history of events at Camp  Lejeune, the CTS decision may well remove any legal remedy for Marines harmed by the drinking water contamination.

Stony Hill Road TCE Contamination, Wake Forest. In 2005, the Wake County Health Department found TCE in a drinking water well serving a home on Stony Hill Road in Wake Forest.  DENR’s Division of Water Quality tested six nearby wells, but  found no additional contamination.  The the  one contaminated well was closed and DENR  shifted its efforts to finding the person (or company) responsible for the contamination. Soil tests suggested that a property next door to the one contaminated well  had been the  source of the TCE contamination; two  circuit board assembly companies had operated on the property.  When DENR received no response to repeated requests  for the   owner  to  assess the extent of the groundwater contamination coming from the property,  DENR initiated another round of state well  testing in 2012. The 2012 tests revealed another contaminated well, triggering a broader  well testing program carried out with the help of the U.S. Environmental Protection Agency. The 2012 tests  ultimately found TCE in 21 residential wells; 14 wells  had levels of TCE over the federal drinking water standard.

Seven years had passed between identification of the first contaminated well on Stony Hill Road and confirmation that  contamination had spread to nearly two dozen other wells.  Since the 2005 testing found only one contaminated well located immediately next door  to the likely contamination source, Stony Hill Road had been considered low risk and fell down the list of hazardous sites competing for  the attention of  DENR’s  Inactive Hazardous Sites program. The state’s Inactive Hazardous Sites Act, N.C. General Statute 130A-310 et seq.,  also has weaknesses that  make it possible for a polluter to simply wait  — taking no action to fully assess and remediate contamination until DENR forces the issue through an enforcement order.  Given limited state resources and a need to prioritize sites based on known risk,  ten years can easily go by before  a contamination incident is fully assessed.

Response to the CTS decision. The U.S. Supreme Court decision dealt with a narrow issue — interpretation of  the CERCLA provision on statutes limiting the time to file a damage claim based on environmental contamination. Seven justices concluded that Congress had not intended for the provision to affect state statutes of repose; the two dissenting justices disagreed.  Congress has the power to make the intent of the federal law more clear and remove any doubt about the impact on statutes of repose. Closer to home, the N.C. General Assembly has the power to amend state law to remove the 10-year limitation on damage claims arising out of environmental contamination. Otherwise, North Carolina citizens will continue to be caught in a Catch-22 — too few state resources to insure  that people potentially damaged by environmental contamination will  know  in time to use the legal remedies available and state laws that encourage polluters to wait until the clock runs out.

The Links between Coal Ash Disposal and Water Pollution

January 23, 2014. Burning coal  generates ash; depending on the  type of  coal,  the ash may contain iron, chromium,  manganese, lead, arsenic, boron and selenium.   At high levels of exposure, some  of those elements  cause  health problems  such as increased cancer risk and neurological damage.  At many coal-fired power plants, large open impoundments (or “ponds”) store coal ash in water; the ponds may also receive stormwater and process wastewater from the electric generating plant. Dry ash may be disposed of in a landfill, but can  also be  used in manufacturing cement or as additional fill material on construction sites.  Concern about the environmental impacts of  coal ash disposal prompted the U.S. Environmental Protection Agency (EPA) to  propose new federal rules  in 2000. EPA ultimately withdrew the proposed rules in the face of opposition from  electric generating companies, members of Congress and state governments. More than a decade later, regulation of coal ash disposal  remains at a stalemate — no new federal rules have been adopted and Congressional supporters of the electric generating companies have responded to a new EPA  rule proposal by attempting to remove EPA’s authority to regulate coal ash disposal altogether. In the meantime, data collected by EPA and events in North Carolina suggest real risks to surface water and groundwater supplies.

Coal ash in North Carolina.  Duke Energy Carolinas and Duke Energy Progress (related companies  resulting from the 2012 merger of Duke Energy and Progress Energy)  have a combined 33  wet coal ash ponds located at 14 electric generating stations  in North Carolina.  You can find a map showing the location of the N.C. ash ponds here.  The  ponds have been largely unregulated until very recently.  No state or federal standards applied to construction of the existing coal ash ponds. Unlike modern landfills, the ash ponds  are not lined to prevent contaminants from percolating into the groundwater below.   Although coal ash  can have some of the characteristics of hazardous waste,  EPA  has excluded  coal ash from federal hazardous waste regulations.

Before  2009, DENR’s water quality program exercised  very limited regulatory authority over coal ash ponds.  The Division of Water Quality (DWQ)  issued a federal Clean Water Act permit for any direct discharge from an ash pond to surface waters, but did not require stormwater controls or groundwater monitoring. State law exempted coal ash ponds and other utility impoundments from regulation under the  N.C. Dam Safety Act. The  state’s largely hands-off approach to coal ash ponds  began to change after a massive spill at the Tennessee Valley Authority (TVA) Kingston plant in 2008.   On December 22, 2008,  an  ash impoundment at the  Kingston plant breached and spilled an estimated  5. 4  million cubic yards of ash slurry. The spill flooded 15 homes, covered 300 acres and deposited over 3 million cubic yards of ash in the nearby Emory River, making it one of the largest industrial spills in American history. The cleanup cost $1.1 billion and  took over four years to complete.

In response to the TVA disaster, North Carolina legislators introduced several bills in 2009 to strengthen state regulation of coal ash disposal.  House Bill 1354    may have been  the most comprehensive; the bill  set standards for coal ash disposal,   required groundwater monitoring around  existing ash ponds, and prohibited construction of new wet ponds.  The bill ran into opposition from the major electric generating companies and never got out of committee. The only piece of coal ash legislation enacted in 2009,   Session Law 2009-390 , repealed  the N.C. Dam Safety Act  exemption for coal ash ponds and other utility impoundments.

Although comprehensive state legislation on coal ash disposal failed,  DWQ increased efforts to use existing state laws to  reduce the water pollution risk and  began putting groundwater monitoring requirements in  Clean Water Act  permits for coal ash ponds in 2009-2010.  One of the factors  in  DWQ’s decision: troubling results from  voluntary groundwater monitoring carried out by Duke Energy and Progress Energy as part of an  industry-led program started in 2006.  DWQ also began  work on  stormwater requirements for  coal ash  disposal facilities.   In 2013,  several things happened  to shine a much brighter light on the coal ash ponds in North Carolina:

Clean Water Act citizens’ suits and  DENR enforcement action.  In early 2013,  the Southern Environmental Law Center (SELC) filed two  notices of intent to sue under the Clean Water Act  based on water pollution from coal ash ponds. (Under the Clean Water Act, a citizen  can sue to enforce the Act only  if the water quality permitting agency has failed to take effective enforcement action. The 60-day notice  gives the permitting agency  time to show that effective enforcement action has  been taken.)  One notice, filed on behalf of the N.C. Sierra Club, Western N.C. Alliance and the Waterkeeper Alliance,    concerned illegal discharges  into the French Broad River from ash impoundments at the Asheville Steam Electric Generating Plant operated by Duke Energy Progress.  The other notice, filed on behalf of the Catawba Waterkeeper Foundation, attributed contaminants in Mountain Island Lake  – a water supply for the City of Charlotte – to  seeps from coal ash ponds associated with the Riverbend Steam Station in Gaston County operated by Duke Energy Carolinas.

In response to the  two  SELC notices,  DENR filed enforcement actions against Duke Energy Carolinas and Duke Energy Progress  in the spring of 2013 and immediately  began work on a consent order to resolve  the Asheville and Riverbend  violations.   The state enforcement action described  illegal discharges in the form of seeps through the impoundment walls at both facilities and groundwater standard violations near  the Asheville impoundments.  After taking  public comment on a draft consent agreement, DENR filed a revised consent agreement with the court in October 2013.  You can find a copy of the proposed consent agreement  here. The consent agreement would require the companies to pay civil penalties, increase groundwater monitoring  and eliminate unpermitted discharges  to  rivers and lakes. The consent agreement has not yet been approved by the court;   meanwhile, the pending state enforcement action keeps the threatened citizens suits on hold.

Drinking water well  contamination near  the  Asheville  coal ash pond.  In 2012,  the state water quality program   found  high levels of iron and manganese in one of five private drinking water wells located near the Asheville  plant.   When DENR retested the well  in 2013,  the results showed a level of contamination that made the water unsafe for use without filtration and  DENR  ordered  Duke Energy Progress to provide the homeowner with an alternative water supply and increase off-site groundwater monitoring around the  ash pond.   The contaminated drinking water well added another groundwater impact to those  identified in the DENR enforcement action filed earlier in the year.

Duke Energy’s agreement with Cape Fear Public Utility Authority. Last fall, Reporter Bruce Henderson  wrote  an  article  for the Raleigh News and Observer about an  unusual agreement between  Duke Energy Progress and Cape Fear Public Utility Authority.   Cape Fear Public Utility Authority has  two public water supply wells located within 2,000 feet of an impoundment holding coal ash from Duke’s Sutton Electric Generating Plant; one of the two wells supplies water to the Flemington community.  Under the agreement, Duke Energy Progress will pay up to $1.8 million  to extend a water line  to carry treated  Cape Fear River water to Flemington and the Authority will close the water supply well. The agreement is significant for two reasons:

1.  In entering into the agreement, Duke has implicitly acknowledged that  groundwater contamination from  the  coal ash pond  may  move offsite and contaminate  the public water supply wells.

2. The agreement requires  Cape Fear Public Utility Authority to close four existing water supply wells in a 17-square mile area bounded by the Cape Fear and Northeast Cape Fear rivers. The Authority also agrees  not to install new  public water supply wells  in the area.  As a result,  groundwater in the entire 17-square mile area will be off-limits for  public water  supply for the foreseeable future because of the potential for contamination from the coal ash pond. (The agreement does  not affect private water supply wells in the area, but those wells would presumably face the same risk of contamination.)

Total cost of the project has been estimated at $2.25 million and costs above the first $1.8 million will be shared between Duke Energy and  Cape Fear Public Utility Authority. You can find a copy of the agreement (as presented  at the October 2013 meeting of the Cape Fear Public Utility  Authority Board)  here.

National data on environmental harm caused by  coal ash disposal.  A 2007 EPA report   assessed 85 instances of  suspected damage  caused by disposal of coal  ash in  landfills or  in ponds.  In 67 cases,  EPA confirmed  either  “proven”  damage (direct health impacts or documented harm to fish, wildlife, or water quality) or “potential” damage (contamination exceeding  drinking water standards either  beneath or near the waste disposal site).  The 67 cases broke down into 24 proven damage cases and 43 potential damage cases.   In the remaining 18 cases, EPA could not confirm a link between  coal ash disposal and environmental or health risks.

In 2009, EPA  surveyed  electric generating companies  to get  more information specifically on wet ash impoundments and  asked the  companies to report  any known  spills or discharges  that had occurred over the previous ten years (not including groundwater releases).  The 240  companies responding to the survey reported  29  spills, breaches and  discharges.  There was little overlap between the incidents reported in the survey and those assessed in EPA’s 2007 report.  Some of the spills reported in the 2009 survey had occurred since the 2007 assessment; others had never been reported to EPA.

North Carolina in the national data.  Two  of the “proven” damage cases described in the 2007 EPA report involved older incidents at North Carolina facilities.   Permitted releases of  water from a coal ash impoundment  at the Roxboro Steam Electric Generating Plant made  fish in Hyco Lake unsafe to eat for a number of years because of high levels of selenium.  In 1990,  Carolina Power & Light shifted to a dry ash system at the Roxboro plant to meet tighter selenium discharge limits and the fish consumption advisory was lifted in 1994.  In the second “proven” damage case from North Carolina, selenium in  discharges from an impoundment at Duke Energy’s Belews Creek plant entirely eliminated 16 of  20 fish species originally found in Belews Lake, including all of the major sport fish.  Under state orders to reduce the selenium discharge,   Duke Energy changed its method of fly ash disposal in 1985 and the state lifted the  fish consumption advisory for Belews Lake  in 2000.  (Descriptions of the environmental damage at Hyco Lake and Belews Lake come from the 2007 EPA  Coal Combustion Waste Damage Assessment Report; the link is provided  above.)  Duke Energy’s Allen Steam  Generating Plant appears in the EPA list of potential damage cases. The Asheville and Riverbend releases  cited in  DENR’s 2013 enforcement action do not appear in either the 2007 EPA report or in the 2009 survey  responses submitted on behalf of Duke Energy and Progress Energy.

State and federal regulatory action?   In June of 2010, EPA published  a new draft rule on disposal of coal combustion residuals. The rule proposed  two alternative approaches to regulating coal ash disposal –1.  treat the ash as a “special waste” under federal hazardous waste rules, establishing specific standards for disposal; or 2. adopt standards for disposal of coal ash as solid waste (the same broad category that covers other, non-hazardous waste). EPA has not yet decided on  which path to take and in the meantime there have been several efforts to shut down the EPA rulemaking entirely.   In July of 2013, the U.S. House of Representatives approved H.R. 2218 (The Coal Residuals Reuse and Management Act of 2013)  which would prohibit EPA from adopting enforceable national standards  for  coal ash disposal and leave regulation to the states.  See the Library of Congress bill summary for more on H.R. 2218.  The U.S. Senate has not acted on the bill.

In North Carolina, the Regulatory Reform  Act of 2013 ( Session Law 2013-413) included a provision limiting DENR’s  authority to require steps to contain groundwater contamination at a  permitted waste disposal facility  — including coal ash impoundments.  For more detail, see the  section on groundwater in an earlier post on 2013  water quality legislation.

So.   It seems clear that large, unlined coal ash impoundments present  some  risk to groundwater,  surface water  and  fish. Recent  events suggest that the risk may be greater than previously known. There was little or no groundwater monitoring around coal ash ponds  before 2006 and  no state oversight of  groundwater monitoring until 2009-2010.  It is simply a fact that groundwater contamination is much more likely to be found if someone is actually looking for it.  The same is true for discharges to rivers and lakes through the walls of coal ash impoundments. The  Riverbend and Asheville  enforcement cases  only happened after citizens documented  unpermitted discharges and gave notice of intent to sue under the Clean Water Act.  It is not clear that the state’s water quality program had found the illegal discharges identified in the consent order or has the resources to do adequate inspections of these large  impoundments.  (The Asheville impoundments alone total 91 acres.) So as new information suggests the need for  frequent, careful inspection of coal ash ponds and quick, effective response to groundwater contamination, state budget and environmental policies are moving in the direction of making both  more difficult.

Legislative Wrap-Up III: Solid Waste, Hazardous Waste and UST

August 5, 2013. Highlights of legislation on solid waste, hazardous waste and petroleum underground storage tanks.

CONTAMINATED SITES

STATE PURCHASE OF CONTAMINATED PROPERTY: One section of house Bill 74 (Regulatory Reform Act)  prohibits state agencies and the community colleges from buying property with contamination without first getting permission from the Governor and Council of State.  (The Council of State is made up of the elected heads of state departments, such the Attorney General, Commissioner of Agriculture, Insurance Commissioner, State Treasurer, etc.). To receive permission, the agency would have to show that state General Fund appropriations would not be used for the purchase. An earlier post, written when similar language first appeared in another bill, talks about the implications. The difference from the earlier version — the final provision does not apply to the UNC system campuses.

BROWNFIELDS:  The state’s Brownfields program provides tax benefits and environmental liability protection to a developer who is willing to clean up and redevelop a contaminated site.  (The person responsible for causing the contamination cannot benefit from the Brownfields program.) Redevelopment is done under an agreement with DENR’s Division of Waste Management that identifies the intended new use of the site and spells out what the developer needs to do to make the site safe for that intended use.  The General Assembly made two changes to the Brownfields program:

— Until now, a site with petroleum contamination from a leaking underground storage tank was not eligible for a Brownfields agreement.  House Bill 789 removes that restriction; a site that could otherwise quality for a Brownfields agreement will not be made ineligible because of a petroleum release.  UST sites had been excluded from the Brownfields program largely because of concern that tax incentives would be inappropriate for sites where the cleanup of contamination is already subsidized by taxpayers through the Commercial UST Trust Fund. The restriction had the unintended result of complicating efforts to redevelop large industrial sites where a UST release may have been just one of several sources of contamination.

— A provision in House Bill 74  exempts local governments from a minimum acreage requirement  (25 acres) for a local government Brownfields project if the developer already has a Brownfields agreement approved by DENR.

SOLID WASTE

FEES FOR LANDFILL PERMITS: House Bill 135 adjusts the fee schedule for landfill permits to match the options for five or ten year permits approved by the legislature in 2012.

ON-SITE DISPOSAL OF DEMOLITION DEBRIS: 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. Hazardous waste in the debris must still be disposed of under standards set in state and federal hazardous waste rules.

LANDFILL PERMITTING STANDARDS: Senate Bill 328 (Solid Waste Reform Act of 2013), which proposed to change many of the landfill permitting standards adopted by the General Assembly in 2007,  never got to a vote in the House.  Some of the less controversial pieces of Senate Bill 328  were adopted as part of  House Bill 74 (Regulatory Reform Act) just before the end of the legislative session. The changes adopted as part of  House Bill 74 include:

● Elimination of the requirement for a buffer between a landfill and state gamelands designated or acquired by the Wildlife Resources Commission after July 1 2013.  For gamelands designated before that date, the buffer will continue to be 1 mile  although  an exception was created for one proposed  construction and demolition debris landfill. That landfill will only be required to have a 500 foot buffer from a gameland designated before July 1, 2013. Based on the description in the bill, Jones County apparently will be the site of the C & D landfill that will benefit from the exception.  The bill does not change the buffers required between a landfill and a  National Wildlife Refuge (5 miles) or  state park (2 miles).  Note: The Jones County exception had been enacted as a separate bill (Senate Bill 24)  early in the session. The language was later added to House Bill 74 with the other solid waste permitting changes and modified to make it consistent with the final language in House Bill 74 on gameland buffers.

● Replacement of the 2007 requirement for annual cleaning of leachate collection lines with a requirement for video inspection of the lines every five years and cleaning as needed.

● A change to a long-standing rule requiring that vehicles used to haul solid waste must be leak-proof.  Under the bill, DENR must immediately begin to apply a different standard – that the vehicle be “designed and maintained to be leak-resistant according to industry standards”.  The Commission for Public Health is directed to amend the 1988 rule to reflect the change.

● A change in the definition of “leachate” to exclude liquid that adheres to the tires of vehicles leaving a landfill or solid waste transfer station.

CRITERIA FOR ASSESSING SOLID WASTE PENALTIES:  Sec. 49 of House Bill 74 sets more specific criteria for assessing civil penalties for violation of solid waste laws and rules. The criteria used are very similar to  criteria used in the water quality and air quality statutes.

LOCAL SOLID WASTE PLANS: House Bill 321 eliminates the requirement for each local government to have a 10-year solid waste management plan.  State law will continue to require annual reporting by each local government on the amount of solid waste generated and disposed of;   participation in recycling programs; programs for disaster debris, white goods disposal, scrap tires disposal; and other information on solid waste management.  A controversial provision that would have intervened in a  legal dispute between Union County and the operator of a C & D landfill in the county was removed before final adoption. (Background on the dispute can be found here.)

LOCAL SOLID WASTE FEES: House Bill 74 also amends the statutes that allow cities and counties to charge fees for solid waste disposal. The new language allows a local government to charge a surcharge for solid waste received from another local government jurisdiction. Unlike the fees charged to residents for waste disposal, revenue from the surcharge does not have to used for landfill operations; the surcharge can be used for any purpose or activity  the local government has authority to fund.

PETROLEUM 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.)

Note on House Bill 74:  Many of the changes in law described here appear in House Bill 74. The Governor has not yet signed the bill and expressed  concern about some parts of the bill — including the solid waste provisions — in a press conference at the end of the legislative session. The Governor has until August 25 to sign H 74, veto the bill,  or allow it to become law without his signature.

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.

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.