The N.C. House on Coal Ash

July 7, 2014. Last week, the N.C. House approved a  revised version of Senate Bill 729 (Coal Ash Management Act of 2014).  See the 5th edition of the bill on the General Assembly website.   The bill now goes to a conference committee to resolve differences between the House and Senate  bills.   There is little or no disagreement between the House and Senate on the most important requirements of S729.  Usually — although not always —  uncontroverted sections of a bill appear in the final bill.   Only a handful of the House changes  are likely to meet opposition from the Senate and some of those have more political than policy significance.   Under Senate rules,  the  conferees can consider any change  germane to the original bill. House rules allow conferees to consider provisions not in controversy between the two chambers to the extent the Senate rules allow, but require entirely new provisions to go back through a House committee before adoption of the conference report. In any case, comparison of the Senate and House bills should give a fairly clear picture of  the final bill.

 House/Senate Agreement. The House and Senate agree on:

♦  Barring electric utilities from recovering the cost of addressing an illegal discharge to surface waters from a CCR impoundment through a rate case.

♦  Timelines for  assessing all  CCR impoundment sites for groundwater contamination and unpermitted discharges to surface waters. House and Senate bills also have identical  corrective action requirements based on existing state groundwater rules.

♦  Deadlines for final closure of CCR impoundments.   Both bills have the same  deadlines for  converting all N.C. coal-fired power plants from wet to dry ash handling; ending disposal of ash in wet impoundments;  and completing final closure of all 33 CCR impoundments in the state. The bills require final closure of  all impoundments by the end of  2029, but set earlier deadlines for closure of high and intermediate risk impoundments. (Final closure  involves dewatering the impoundments  and taking additional steps — which may include removal of the CCRs from the site — to prevent future groundwater and surface water contamination.)

♦   Priority  for closure. Both the House and the Senate  direct DENR to give four  impoundments  highest priority for closure (Riverbend, Asheville, Dan River and Sutton). Like the Senate, the House voted down a number of amendments attempting to add sites to the immediate closure list. Both bills direct DENR and the Coal Ash Management Commission to prioritize the other 10 CCR impoundment sites for closure based on risk. Neither  bill  provides guidance  on how to translate  risk factors listed  in the bill  into high, intermediate and low risk classifications. Uncertainty about how the risk factors will be used to  prioritize impoundments for closure has caused concern on the part of both the electric utilities and environmental organizations since risk classification also determines the allowable closure methods.

♦  The link between prioritization for closure and the method of final closure.  Under both House and Senate bills,  high and intermediate risk impoundments  must  be closed by permanently  removing the coal combustion residuals from the impoundment for disposal in a permitted facility; removing the CCRs for use in structural fill or another beneficial reuse  allowed under the law; or temporarily moving and storing the CCRs  for disposal in an industrial landfill to be built on the old impoundment site.  Both  bills allow low risk impoundments to be closed by  capping the CCRs in place under closure standards that apply to municipal solid waste landfills.

Duke Energy  has openly worried  about the number of impoundments  that may be classified   as high or  intermediate risk and require  more costly closure plans. Environmental organizations see no assurance in either bill that “low risk” impoundments will necessarily be appropriate for capping in place.

♦ Giving the Coal Ash Management Commission final authority to approve  prioritization of impoundments for closure and the final closure plan for each impoundment. Under both bills, the commission would be  directed to approve a closure plan based on consistency with the law; technological feasibility; and a determination that “benefits to public health, safety, and welfare; the environment; and natural resources outweigh the negative impacts on electricity costs and reliability”.  The last part of the standard — weighing public benefits against impact on electricity costs and reliability — suggests that even a technologically feasible closure plan  approved by DENR as consistent with the law  could be disapproved by the commission based on the impact to electric utilities. The bill  doesn’t  seem to set any  minimum  requirement for protection of public health, safety, the environment and natural resources  to put a floor under the commission’s weighting of public benefits versus utility costs.

♦ Expanding “structural fill” use of CCRs to include mine reclamation, construction of embankments, and greenscapes. Existing state rules allow use of CCRs as fill material to support  a building foundation or other structure (such as a  roadbed or airport runway). Both the Senate and House bills  expand the concept of “structural fill” to include  uses unrelated to  construction, such as reclamation of open pit mines;  embankments; and  greenscapes.  The idea of using CCRs  as  fill material for an open pit mine  would be a particularly significant departure from past structural fill uses because of the volume and depth of the fill project.

♦ More stringent standards for large structural fill projects. New standards require liners; leachate collection systems; financial assurance;  groundwater monitoring; and establish setbacks from surface waters, wetlands, water supply wells and other features.  As noted  below,  the bills differ on the dividing line between large projects and smaller structural fill projects that will be deemed permitted under less protective standards.

♦  A moratorium on new structural fill projects that do not meet the more stringent standards for large projects and a moratorium on construction of coal combustion product landfills on top of old CCR impoundments  under standards in  the 2007 Solid Waste Act. The  structural fill moratorium will be linked to a DENR study of structural fill and other beneficial uses of CCRs. The bills also require a study of the 2007 coal combustion product landfill standards.

♦  Earlier notice  to DENR and to the public when untreated wastewater is discharged to surface waters,  picking up on  a recommendation of the legislature’s Environmental Review Commission. This provision would apply  to all wastewater spills and not just  spills  associated with CCR impoundments

♦  Requiring  an emergency action plan for high hazard and intermediate hazard dams. The emergency action plans would be required for both CCR impoundments and other dams regulated under the state Dam Safety Act.   The House and Senate also  agree on specific inspection requirements for CCR impoundments and a  process for decommissioning CCR impoundments under the Dam Safety Act.

♦  Assessment of a fee on electric utilities that own CCR impoundments to fund DENR and Coal Ash Management Commission activities under the law.

♦  Transfer of rulemaking authority for state solid waste programs from the Commission for Public Health to the Environmental Management Commission.

House/Senate Differences.  Some of the more significant differences that will need to be resolved in conference between the two chambers:

♦  The length of a moratorium on cost recovery for expenses related to CCR impoundment assessment, remediation and closure.   The Senate moratorium would end on January 15, 2015; the House extends the moratorium to December 31, 2016.

♦  Makeup and organization of the Coal Ash Management Commission.  The General Assembly would continue to make a majority of appointments to the 9-member commission, but the  House bill gives the Governor  authority to appoint the chair.   The House also made very minor changes to criteria for appointment to the commission. One of the most significant differences between the House and Senate  may  be the administrative location of the commission. The Senate put the commission under the Department of Public Safety; the House  moved the commission under the Department of Environment and Natural Resources.

♦  A shorter deadline for providing alternative drinking water supply when a CCR impoundment causes well contamination. Both the Senate and the House require the electric utility to provide an alternative water supply  when a water supply well has become unsafe because of groundwater contamination associated with a  CCR  impoundment. The House bill added a requirement that  an alternative supply of drinking water must be provided within 24 hours after DENR confirms that contaminants associated with a CCR impoundment have caused exceedance of  a groundwater standard in  a drinking water well. Alternative water supply for other purposes must be provided within 30 days consistent with the Senate bill.

♦   More alternatives for final closure of  “low risk” CCR impoundments.   The  House bill  allows low risk impoundments to be closed using any of  the methods approved for high and intermediate risk impoundments (removal of ash for landfill disposal; removal of ash for beneficial reuse;  or conversion of the impoundment to an industrial landfill)  or  by capping the coal ash in place under standards for closure of a municipal solid waste (MSW)  landfill. The Senate  restricted closure of low risk impoundments  to the “cap in place” option.

♦  Opportunity for electric utilities to request  a variance from CCR impoundment closure deadlines.  The Senate and House bills  have the same deadlines for final closure of CCR impoundments, but the House bill allows the Secretary of Environment and Natural Resources to grant variances from the deadlines. To get a  variance the electric utility must show that : “compliance with the deadline cannot be achieved by application of best available technology found to be economically reasonable at the time and would produce serious hardship without equal or greater benefits to the public”.   The variance standard  requires a cost-benefit calculation  that weighs cost to the electric utility against the public health and environmental benefits of closure.  In that respect, it is similar to the standard for Coal Ash Management Commission approval of closure plans.  As a standard for granting variances from environmental or public health rules, it is unusual in not requiring any minimum level of protection for  public health, safety and natural resources.  There  seems to be no floor under the Secretary’s authority to give  greater weight to electric utility cost than to the public benefit of closure. The provision also puts no limit on the  extension of time allowed by variance.

♦  The threshold for requiring more stringent structural fill standards.  The House bill lowers  the threshold between structural fill projects that will be deemed permitted and those requiring an individual permit under more stringent standards. Under the House bill, any project using 8,000 tons or more  of coal combustion residuals per acre or  a total of 80,000 tons or more for a single project would trigger an individual permit under more protective standards. The Senate bill set the thresholds at 10,000 tons or more per acre and 100,000 tons or more total.

♦ Addition of  a criminal enforcement provision. The House added a criminal enforcement provision, making it a Class 2 misdemeanor (maximum penalty of $10,000) to make a false statement, representation or certification in any application, report or other document required under the law.

♦  Protecting some information in Dam Safety Emergency Action Plans.  The House bill adds a confidentiality provision  excluding “sensitive public security information” from disclosure under the state’s Public Records Act. The bill specifically protects information that is protected from disclosure under Federal Energy Regulatory Commission rules as “Critical Energy Infrastructure Information”.

♦  Groundwater Compliance Boundaries: The Senate bill repeals  most of a 2013 regulatory reform provision  concerning groundwater compliance boundaries around permitted waste disposal sites. For an explanation of the 2013  legislation, see an earlier post. The Senate  bill   repeals everything except a provision clarifying that each individually permitted waste disposal site should have a groundwater compliance boundary without regard to the date the facility first received a water quality permit. The House  adds new language on groundwater corrective action to the Senate provision.

According to one House bill sponsor, the new corrective action language  intends to reverse a recent superior court decision concerning remediation of groundwater contamination caused by CCR impoundments.  Superior Court Judge Paul Ridgeway reversed a declaratory ruling by the  Environmental Management Commission (EMC) interpreting the  groundwater corrective action rule,  15A NCAC 2L.0106, as applied to CCR impoundments.  Judge Ridgeway concluded that the rule does not give older waste disposal systems  (those first permitted under water quality laws before 1984) the alternative of treating or controlling the groundwater contamination source.  Judge Ridgeway  interpreted the rule to require immediate removal of the contamination source in every case involving groundwater contamination associated with a pre-1984 waste disposal  system.

Most CCR impoundments fall into the pre-1984 category and the Ridgeway decision  seems to require immediate removal of coal combustion residuals that are the source of groundwater contamination beyond the compliance boundary.  See this post for more on Judge Ridgeway’s decision. Since the  rule  applies to all waste disposal sites first permitted before  1984,  Judge Ridgeway’s decision  has  also created  concern among local governments  because of the potential impact on some county and municipal waste disposal sites.

It isn’t possible  to fully analyze the  implications of the House language as compared to the  current groundwater corrective action rule;  the Senate provision; and Judge Ridgeway’s order in this post.   But House bill sponsors have clearly  indicated an intent to reverse  the part of the Ridgeway  decision requiring  the owner of a pre-1984 waste disposal facility to immediately remove a source of groundwater contamination that has migrated beyond the groundwater compliance boundary and allow greater flexibility in measures used to  address ongoing groundwater contamination.