The Governor’s Coal Ash Bill

On Wednesday, April 16, Governor Pat McCrory surprised everyone (including his fellow Republicans in the  state legislature) by releasing a draft bill on coal ash. The “Comprehensive Coal Ash Action Plan” has created a buzz  in the environmental community. Southern Environmental Law Center (SELC) criticized the draft bill as bearing too close a resemblance to the now-abandoned DENR settlement with Duke Energy. Other environmental organizations have been less critical,  acknowledging  the bill makes steps in the right direction without quite delivering the comprehensive coal ash plan needed. Highlights below.

What the Bill Does:

♦ Clarifies state law to require immediate notice to DENR of any wastewater spill that reaches surface waters and shortens the time for public notice of a wastewater spill from 48 hours to 24 hours.

♦ Requires assessment of contamination at all of the  Duke Energy ash impoundments, setting timelines that could  result in completion of groundwater assessment and the beginning of remediation within one year after adoption of the bill.  The bill sets a hard  deadline of 45 days from the effective date of the law for  Duke to submit groundwater assessment plans to DENR for all 14 facilities.  Duke Energy would be required to  begin assessment  as soon as DENR approves the plans. The overall assessment/remediation timeline could slip, however; DENR would  have the discretion to extend the  time allowed for completion of the final assessment report and submission of a  proposed corrective action plan to address  groundwater  standard violations.  Once a corrective action plan has been approved, the bill sets another hard deadline of 30 days for  Duke  to begin implementing  the plan.

♦  Requires Duke  to map  all public and private water supply sources in an area within ½ mile of the compliance boundary around each ash impoundment within 60 days after the bill becomes law.    Based on the survey, DENR could require Duke Energy to  sample  any water supply source at risk of contamination. (Sampling may not be needed for water supplies upstream or up-gradient of the  ash impoundment.) The bill  does not put a timeline on completion of  any sampling required by DENR. The bill also requires Duke to provide an alternative water source if testing shows well  contamination exceeding groundwater standards.

♦ Requires Duke Energy to identify and eliminate unpermitted wastewater discharges from the ash impoundments.    Duke must submit topographic maps of engineered outfalls  draining the toe of the ash impoundments (“toe drains”) within 90 days after the bill becomes law  along with a schedule for water quality sampling of the outfall.    Similar maps  showing the location of seeps and drains that do not discharge to an engineered channel must be submitted within  180 days after the bill becomes law. The bill requires Duke Energy to eliminate any unpermitted discharges to surface waters within 120 days after receiving notice from DENR. The unpermitted discharge can be eliminated by stopping the discharge; routing it to a permitted outfall; using  best management practices (BMPs); or applying for an NPDES permit for the discharge.

Note: BMPs for operation of ash impoundments do not currently exist; the  bill actually directs Duke Energy to submit a set of best management practices designed to prevent unpermitted discharges from ash ponds to surface waters within 180 days after the bill becomes law. It also isn’t clear that BMPs can bring the ash impoundments into compliance with the Clean Water Act.  SELC  has said that EPA objected to similar language in the draft  consent agreement proposed by DENR to resolve enforcement actions related to the Asheville and River Bend ash impoundments.

♦  Creates a  process for identifying ash pond discharges that have reached surface waters and caused water quality standard violations. The bill requires  Duke Energy to develop a plan for upstream and downstream water quality sampling subject to DENR approval. The timeline in the bill (180 days to submit a plan – 30 days for DENR review – 180 days for Duke Energy to carry out  the  approved sampling plan) means the outcome of surface water sampling  may  not be known for up to a year after the bill becomes law.

♦ Requires Duke Energy to  develop an inspection plan  to identify new seeps and  submit the plan to DENR within 30 days after the bill becomes law.

♦ Sets new inspection standards for coal ash impoundments. The bill would require Duke Energy to inspect the impoundments weekly and after storms. It would also require Duke Energy to contract for annual inspection by an independent professional engineer.

♦ Puts a temporary “moratorium” on use of coal combustion products as structural fill. The “moratorium” has two significant exceptions — 1. use of the material as structural fill under an airport runway or road project built by a public entity;  and 2. use of up to 5,000 cubic yards as structural fill on any public or private construction site.  Since the bill  does not lead into any review of the current standards for using coal ash as structural fill,  the provision seems to function more as a cap on the size of structural fill projects than a moratorium.

♦ The bill requires DENR to “establish the priority for closure of all active and inactive investor-owned coal combustion products impoundments”. The language  appears to call for closure of all  impoundments in some unspecified order of priority. The bill  provides no guidance on how  DENR should set  priorities for closure  although a separate provision in the bill identifies  four specific facilities (Riverbend, Asheville, Sutton and Dan River) to be given first order of priority.  At a minimum,  legislation will need to identify factors  for DENR to consider  in prioritizing other sites for closure.

The bill  allows the alternatives of: 1.   “closure in place” (installing an engineered cover system over the coal ash on site); 2. “clean closure”   by removing  all ash from the site; 3. consolidation of  coal ash on the site, reducing the overall footprint of the waste disposal area before installing an engineered cover; and 4. other alternatives that may be equally effective in protecting water quality.  The bill sets only one standard for selection of the closure method:  the closure method must result in “restoration to the level of the groundwater standards will be obtained as is economically and technically feasible”. (Awkward phrasing, but it  seems to mean that  the closure method should allow contaminated groundwater to be restored to meet state groundwater standards to the extent that is economically and technically feasible.) The bill does not define “economically feasible” — something other environmental laws have found to be necessary in similar circumstances. It also sets no standards for implementation of the different closure methods –such as dewatering of  impoundments  that will be closed in place.

The bill requires a post-closure plan, including groundwater monitoring,  covering a period of at least 30 years.

♦ Sets detailed standards for “decommissioning” an ash impoundment under the state’s Dam Safety Act.

What the Bill Does Not Do:

♦ Set standards for future disposal of coal ash. The bill puts coal ash removed from ash impoundments under the state’s solid waste laws by amending a definition in the Solid Waste Act. The state’s solid waste laws do not allow disposal of solid waste in open impoundments and the bill as a whole implies a ban on future disposal of coal ash in open impoundments, but never expressly prohibits it.  A clear statement about future coal ash disposal  will be important.   Beyond that, the bill is silent on standards for landfill disposal of  coal ash. Current laws give the investor-owned utilities exceptions from a number of standards  that  apply to other industrial landfills — including significantly smaller setbacks from surface waters, wetlands and property lines. If those laws remain unchanged,  Duke Energy could create coal ash landfills  located 50 feet from surface waters.

♦ Modify structural fill standards. The  “temporary moratorium”  on use of structural fill really just limits the  amount  of coal ash that can be used as structural fill on a private construction project. Otherwise, the standards remain unchanged; structural fill sites do not require liners and have only minimal setbacks from surface waters, wells and property lines.

♦ Provide sufficient guiding standards for implementation. As noted above, the bill provides no standards for prioritizing closure of existing ash impoundments or for implementation of the different closure methods. The bill sets only a single, broad criteria for selection of the closure method.  More detail will be needed to make the bill workable.