Understanding the Court’s Coal Ash Order

Note: This post was updated to link to a different site for a copy of the judge’s order after the original source site became unavailable.

On March 6, 2014,  a  Superior Court judge issued an order reversing part of a 2012 declaratory ruling  by the N.C.  Environmental Management Commission (EMC) concerning regulation of coal ash ponds under state groundwater rules. The declaratory ruling case began in October of 2012 — before the Clean Water Act citizen suits of 2013 and the recent Dan River spill — as a request for an interpretation of state groundwater rules as applied to the coal ash ponds. The declaratory ruling request (filed on behalf of Cape Fear River Watch, Sierra Club, and Western N.C. Alliance) asked the EMC to  rule on three issues:

1. Operators of coal ash  ponds with Clean Water Act discharge permits first issued on or before December 30, 1983 must take corrective action (such as assessment and remediation) when their activity causes a groundwater standard violation — even if the violation occurs inside the compliance boundary around the ash pond;

2. Operators of coal ash  ponds with Clean Water Act discharge permits first issued on or before December 30, 1983 must take immediate action to remove sources of contamination causing a groundwater standard violation; and

3. These same requirements apply to owners of coal ash ponds that are closed and inactive.

Two background notes. State  rules recognize the possibility that waste disposal may cause groundwater contamination.  The rules generally only require corrective action at a permitted waste disposal site  if the waste disposal activity has caused a groundwater standard violation beyond a defined compliance boundary.  Corrective action can include assessment of the extent of contamination, steps to contain or reduce ongoing contamination and groundwater remediation. Landfills built to modern (post-1983) solid waste management standards have a  groundwater compliance boundary  of  250 feet around the perimeter of the waste disposal area or the property  line, whichever is closer.   Older facilities (like the coal ash ponds) generally have a  500-foot groundwater compliance boundary. See a previous post for  more on groundwater compliance boundaries.

December 30, 1983  becomes significant because state rules treat waste disposal sites that first received Clean Water Act permits on or before that date as unpermitted facilities.  (More about the logic of that assumption as applied to ash ponds later.) The rules require a different response to groundwater contamination found at an unpermitted waste disposal  site  as opposed to a permitted facility — presumably because newer facilities  have been built to more environmentally protective standards.

Judge Ridgeway’s Decision. On the first issue, Judge Ridgeway  agreed with the EMC, concluding that state rules only require corrective action if the waste disposal activity causes a violation of groundwater standards beyond the compliance boundary  around the disposal site.  Exceedence of a groundwater standard within the compliance boundary does not require corrective action except in extraordinary circumstances.  Although consistent with past EMC and DENR interpretations,  Judge Ridgeway’s decision leans heavily on new groundwater legislation adopted as part of the Regulatory Reform Act of 2013. (See the  earlier post for  more on the 2013 legislation.) According to the judge’s order, all of the parties to the declaratory ruling case  agreed that the 2013 legislation mooted the compliance boundary issue.

On the other hand, Judge Ridgeway decided the second issue (concerning immediate removal of the source of groundwater contamination) in favor of the petitioners. The  judge  relied on state rules  treating waste disposal  facilities first permitted under the Clean Water Act on or before December 30, 1983 differently from those permitted later.    The rules  classify  older facilities   as  unpermitted  and  a groundwater standard violation at an unpermitted waste disposal site triggers a requirement to immediately remove the source(s) of contamination.    All of the coal ash ponds in the state  first received a Clean Water Act discharge permit before December 30, 1983.

Treating the ash ponds as unpermitted waste disposal  facilities  is  key to the  judge’s ruling  that  the utility companies must immediately remove the contamination source at any ash pond that has caused a groundwater standard violation beyond the compliance boundary.   Removal of the source of groundwater contamination associated with  a coal ash pond clearly has huge implications, since the  primary  source of contamination is the coal ash itself. Under the rules, a groundwater standard violation at a permitted waste disposal facility  may require corrective action, but not  necessarily  removal of  waste causing the contamination.

Judge Ridgeway disposed of the third issue by briefly noting that the laws  and  rules don’t distinguish between active and inactive waste disposal facilities.

Potential confusion.  Judge Ridgeway’s order seems to treat  coal ash ponds as permitted waste disposal sites in deciding the first issue  and as unpermitted waste disposal sites in deciding the  second. The 2013 legislation the judge relies on  to decide  the first issue  clearly  applies to waste disposal systems that require an individual permit under either  water quality or waste management laws. The  new statute language  limiting the EMC’s power to require corrective action  inside the compliance boundary  begins with these words: “When operation of a disposal system permitted under this section results in an exceedance of the groundwater quality standards…”

It seems clear that the 2013 legislation can only benefit operators of waste disposal facilities holding individual  water quality or waste management permits.  Having given  coal ash ponds the benefit of the new law on the first issue, the judge does not explain why the  coal ash ponds are treated as unpermitted waste disposal  facilities in deciding the second.  The judge relies on  state rules that predate the 2013 legislation to identify the kind of corrective required at the ash ponds even though  the new law  also addresses  corrective action —  without making any distinction based on the permitting history of the facility:

“(k) Where operation of a disposal system permitted under this section results in exceedances  of the groundwater quality standards at or beyond the compliance boundary established under subsection (i) of this section, exceedances shall be remedied through cleanup, recovery, containment, or other response as directed by the Commission.”

It is possible that Judge Ridgeway saw no conflict between the new law on corrective action and existing groundwater rules  on corrective action at  older facilities, but the decision does not explain how he reconciled the  two.

Permitted or unpermitted and  does it matter? There may well be an appeal of Judge Ridgeway’s  decision.  By assuming the coal ash ponds have a different permitting status for purposes of the two major issues in the case, the decision awards each side a win and a loss. It is conceivable that at least one party to the case would prefer two wins.

The permitted/unpermitted conflict  just emphasizes again the peculiar regulatory status of coal ash ponds. EMC rules treating pre-December 30, 1983 waste disposal sites as “unpermitted” makes perfect sense  in the context of truly unauthorized waste disposal sites or  older landfills that closed rather than meet new standards for  solid and hazardous waste disposal that went into effect in 1983.  It makes less sense as applied to coal ash ponds that largely fell under the jurisdiction of the Utilities Commission until 2009 and never had an  obligation to comply with solid and hazardous waste regulations.   In fact, the coal ash ponds continued to operate for decades after 1983  — subject only to Clean Water Act permits for discharges from the ponds — with the acquiescence of both state and federal policy makers.  That only began to change in 2009 after the TVA ash spill drew more attention to the risks.  Then,  the state somewhat increased environmental oversight for the ponds — but  failed to  enact comprehensive coal ash disposal legislation  much less demand  immediate closure of the ash ponds.

Since coal ash ponds  operated  outside of  most  environmental regulatory programs for  years,  existing laws and rules don’t fit either operation or closure of the ash ponds very well. As badly as the state needs a solution to the problems surrounding coal  ash ponds, Judge Ridgeway’s order in itself is not likely to be the answer.  A solution will require standards for coal ash disposal;  a process for safe closure of coal ash ponds;  priorities for closure;  and  assessment of environmental damage and ongoing risk at existing facilities. It’s going to require legislation.