March 3, 2014. The February 2 coal ash spill at Duke Energy’s Dan River steam station (see an earlier post for more on the spill) puts some recent and still pending environmental policy decisions in a new light.
Preventing state environmental programs from adopting standards “more stringent than” federal standards. In 2011, the General Assembly prohibited environmental agencies from adopting a rule “that imposes a more restrictive standard, limitation, or requirement than those imposed by federal law or rule, if a federal law or rule pertaining to the same subject matter has been adopted”. You can find the statute (G.S. 150B-19.3) here. The increasing evidence of water quality problems associated with coal ash ponds may test those limits on state regulation —
♦ The question is whether new state rules on coal ash disposal or closure of existing coal ash ponds would be considered “more stringent” than existing federal rules. Federal rules exempt coal ash from regulation as a hazardous waste, but include ash as a “solid waste” and set minimum standards for solid waste landfills. On the other hand, coal ash ponds aren’t considered solid waste landfills so the solid waste rules don’t apply. Federal Clean Water Act rules regulating stormwater and wastewater discharges apply to the ponds, but nothing in the existing federal rules requires a coal ash pond to meet construction standards to minimize groundwater impacts or obligates the utility company to move coal ash from a pond to a disposal facility with less environmental risk. Given that landscape — federal rules address some, but not all, concerns about coal ash disposal — can state environmental programs fill the gaps by imposing additional requirements without specific statutory authority?
♦ The exceptions in G.S. 150B-19.3 are inadequate to get ahead of an environmental problem that poses a long-term risk, but not a “sudden, unforeseen” threat. Few of the problems associated with coal ash ponds would be considered sudden or unforeseen. Both federal and state regulators have long known that unlined ash ponds pose some risk of groundwater contamination. The massive spill at TVA’s Kingston plant in 2008 focused attention on the possibility of structural failure of a coal ash impoundment. The U.S. Environmental Protection Agency has been working on federal coal ash disposal regulations off and on for over ten years because of these and other concerns. As obvious as the problems surrounding coal ash disposal have now become, the exceptions in G.S. 150B-19.3 don’t seem to give environmental agencies a way to address those problems through rulemaking.
♦ If state agencies need additional statutory authority to adopt state rules that go beyond current federal regulation of coal ash disposal, rulemaking could not begin until after the 2014 legislative session that begins in mid-May. Rule adoption often takes two years. The other alternative would be for the General Assembly itself to set standards for coal ash disposal through legislation. Legislation can move much more quickly than rulemaking, but the last effort to enact state legislation on coal ash failed due to opposition from the utility companies. See this post for more information on earlier state legislation and a link to the 2009 coal ash disposal bill.
Efforts to limit state review of engineered plans and drawings. North Carolina’s professional engineers (PEs) have lobbied for several years to limit state review of plans prepared by PEs and to constrain the ability of regulatory staff to require changes to engineering plans. The most recent effort led to language in the Regulatory Reform Act of 2013 (Session Law 2013-413) requiring a study of state and local review of engineering plans. Section 58 of S.L. 2013-413 requires DENR, the Department of Transportation, the Department of Health and Human Services and local governments to study:
“(iii) the standard scope of review within each permit program, including whether… staff are requiring revisions that exceed statutory or rulemaking requirements when evaluating such permits or plans; [and]
(iv) opportunities to eliminate unnecessary or superfluous revisions that may have resulted in the past from review processes that exceeded requirements under law, and opportunities to otherwise streamline and improve the review process for applications and plans submitted for approval.”
The history and recent failure of the Dan River stormwater pipe reinforces the value of having a second, objective review of engineering plans and decisions. The early decision by utility company engineers (before state regulation) to expand the ash pond over a metal stormwater pipe and the apparent failure to plan for maintenance of the pipe likely contributed to the spill. In the aftermath of the February spill, it became clear that current Duke Energy staff did not know how the stormwater pipe had been constructed — incorrectly assuming that the entire stormwater pipe was concrete. Even in real time response to the Dan River spill, Duke Energy and DENR engineering staff sometimes reacted very differently to the same information. Duke Energy did a camera inspection of a second, smaller stormwater pipe at the Dan River site to check its condition. According to news reports, Duke Energy staff planned no immediate action based on the results of the camera inspection other than continued monitoring. A state dam safety engineer who looked at the same video showing leaks and pooling of water in the pipe concluded that the second pipe could also be discharging coal ash to the Dan River. Water quality testing confirmed high levels of arsenic in discharges from the pipe and the dam safety program ordered Duke to close the second pipe within 10 days. When an error carries potentially high risks or costs, review of engineering plans and decisions can be critical — simply because state and local environmental staff will look at the same situation through different eyes.
Note: The Study of Review of Engineering Work has been submitted to the legislature’s Environmental Review Commission and the General Assembly could consider legislation on state/local review of engineering plans in the upcoming legislative session.
Limiting DENR’s ability to order steps to contain groundwater contamination. The Regulatory Reform Act of 2013 also does two significant things to limit (or defer) steps to contain or cleanup groundwater contamination:
♦ The law makes the property line the presumed “compliance boundary” for groundwater contamination caused by a permitted waste disposal facility (including a coal ash pond). State rules allowed for some exceedence of groundwater standards near a waste disposal area, but generally put the compliance boundary at 250 feet around the footprint of the facility or at the property line whichever is closer. Causing an exceedence of groundwater standards beyond the compliance boundary violates the permit. The new law presumes groundwater contamination associated with a waste disposal facility can be allowed to migrate to the property boundary — including any adjoining property in the same ownership. The law does not change existing compliance boundaries set by permit, but sends a strong message about future permit terms and regulatory requirements. The change would potentially allow the owner of a waste disposal facility to contaminate a much greater area of groundwater without any obligation to remediate. Using the property line as the compliance boundary also leaves little safety margin to protect the groundwater rights of nearby property owners.
♦ The law limits DENR’s ability to require the operator of a permitted waste disposal facility to take steps to remediate or contain groundwater contamination within the compliance boundary. The law ties DENR’s hands until the contamination has migrated beyond the compliance boundary unless DENR can show that:
(1) The contamination has already caused a water quality violation in adjoining classified waters or a violation “can be reasonably predicted to occur”;
(2) The contamination poses an imminent threat to the environment, public health, or safety;
(3) The contamination will cause a violation of any standard in groundwater occurring in the bedrock, including limestone aquifers, unless the violation has no potential to adversely affect a water supply well.
At the very least, DENR will have to meet a significant new burden before directing the owner of a waste disposal facility to take steps to prevent further migration of groundwater contamination. It appears that clear evidence of groundwater contamination moving offsite — affecting another property owner’s groundwater — will not be enough by itself to allow DENR to require steps to contain the contamination. DENR will have to demonstrate that groundwater standards will be violated. In the worst case, the horse will be well out of the barn before the state can act.