GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 2017

H D

HOUSE BILL DRH40403-RI-16 (03/17)

Short Title: Amend Various Coal Ash Provns.		(Public)
Sponsors:	Representative Harrison.
Referred to:

A BILL TO BE ENTITLED

AN ACT to amend various provisions related to coal ash cleanup.

The General Assembly of North Carolina enacts:

PART I. PROHIBIT AN ELECTRIC PUBLIC UTILITY FROM RECOVERING COSTS RELATED TO THE MANAGEMENT OF COAL COMBUSTION ASH AND UNLAWFUL DISCHARGES FROM COAL ASH PONDS

SECTION 1. G.S. 62‑133.13 reads as rewritten:

"§ 62‑133.13. Recovery of costs related to the management of coal combustion residuals and unlawful discharges from coal combustion residuals surface impoundments to the surface waters of the State.

The Commission shall not allow an electric public utility to recover from the retail electric customers of the State costs resulting from an unlawful discharge to the surface waters of the State from a coal combustion residuals surface impoundment, unless the Commission determines the discharge was due to an event of force majeure. For the purposes of this section, "coal combustion residuals surface impoundments" has the same meaning as in G.S. 130A‑309.201. For the purposes of this section, "unlawful discharge" means a discharge that results in a violation of State or federal surface water quality standards.

(a) For the purposes of this section, "coal combustion residuals surface impoundment" has the same meaning as in G.S. 130A‑309.201. For the purposes of this section, "costs related to unlawful discharges to the surface waters of the State" include any corrective actions required of the electric public utility under State or federal law.

(b) The Commission shall not allow an electric public utility to recover from the retail electric customers of the State any of the following costs:

(1) Costs incurred on or after January 1, 2014, that are related to the management of coal combustion residuals disposed of in coal combustion residuals surface impoundments, including costs associated with complying with the provisions of Part 2I of Article 9 of Chapter 130A of the General Statutes.

(2) Costs incurred on or after January 1, 2014, that are related to an unlawful discharge to the surface waters of the State from a coal combustion residuals surface impoundment, unless the Commission determines the discharge was due to an event of force majeure."

PART II. CLOSURE OF PONDS

SECTION 2.(a) G.S. 130A‑309.214 is repealed.

SECTION 2.(b) G.S. 130A‑309.213 reads as rewritten:

"§ 130A‑309.213. Prioritization of coal combustion residuals surface impoundments.

(a) As soon as practicable, but no later than December 31, 2015, the Department shall develop proposed classifications for all coal combustion residuals surface impoundments, including active and retired sites, for the purpose of closure and remediation based on these sites' risks to public health, safety, and welfare; the environment; and natural resources and shall determine a schedule for closure and required remediation that is based on the degree of risk to public health, safety, and welfare; the environment; and natural resources posed by the impoundments and that gives priority to the closure and required remediation of impoundments that pose the greatest risk. In assessing the risk, the Department shall evaluate information received pursuant to G.S. 130A‑309.211 and G.S. 130A‑309.212 and any other information deemed ~~relevant.~~relevant and, at a minimum, consider all of the following:

(1) Any hazards to public health, safety, or welfare resulting from the impoundment.

(2) The structural condition and hazard potential of the impoundment.

(3) The proximity of surface waters to the impoundment and whether any surface waters are contaminated or threatened by contamination as a result of the impoundment.

(4) Information concerning the horizontal and vertical extent of soil and groundwater contamination for all contaminants confirmed to be present in groundwater in exceedance of groundwater quality standards and all significant factors affecting contaminant transport.

(5) The location and nature of all receptors and significant exposure pathways.

(6) The geological and hydrogeological features influencing the movement and chemical and physical character of the contaminants.

(7) The amount and characteristics of coal combustion residuals in the impoundment.

(8) Whether the impoundment is located within an area subject to a 100‑year flood.

(9) Any other factor the Department deems relevant to establishment of risk.

(b) The Department shall issue a proposed classification for each coal combustion residuals surface impoundment based upon the assessment conducted pursuant to subsection (a) of this section as high‑risk, intermediate‑risk, or low‑risk. Within 30 days after a proposed classification has been issued, the Department shall issue a written declaration, including findings of fact, documenting the proposed classification. The Department shall provide for public participation on the proposed risk classification as follows:

(1) The Department shall make copies of the written declaration issued pursuant to this subsection available for inspection as follows:

a. A copy of the declaration shall be provided to the local health director.

b. A copy of the declaration shall be provided to the public library located in closest proximity to the site in the county or counties in which the site is located.

c. The Department shall post a copy of the declaration on the Department's Web site.

d. The Department shall place copies of the declaration in other locations so as to assure the reasonable availability thereof to the public.

(2) The Department shall give notice of the written declaration issued pursuant to this subsection as follows:

a. A notice and summary of the declaration shall be published weekly for a period of three consecutive weeks in a newspaper having general circulation in the county or counties where the site is located.

b. Notice of the written declaration shall be given by first‑class mail to persons who have requested such notice. Such notice shall include a summary of the written declaration and state the locations where a copy of the written declaration is available for inspection. The Department shall maintain a mailing list of persons who request notice pursuant to this section.

c. Notice of the written declaration shall be given by electronic mail to persons who have requested such notice. Such notice shall include a summary of the written declaration and state the locations where a copy of the written declaration is available for inspection. The Department shall maintain a mailing list of persons who request notice pursuant to this section.

(3) No later than 60 days after issuance of the written declaration, the Department shall conduct a public meeting in the county or counties in which the site is located to explain the written declaration to the public. The Department shall give notice of the hearing at least 15 days prior to the date thereof by all of the following methods:

a. Publication as provided in subdivision (1) of this subsection, with first publication to occur not less than 30 days prior to the scheduled date of the hearing.

b. First‑class mail to persons who have requested notice as provided in subdivision (2) of this subsection.

c. Electronic mail to persons who have requested notice as provided in subdivision (2) of this subsection.

(4) At least 30 days from the latest date on which notice is provided pursuant to subdivision (2) of this subsection shall be allowed for the receipt of written comment on the written declaration prior to issuance of a final risk classification. At least 20 days will be allowed for receipt of written comment following a hearing conducted pursuant to subdivision (3) of this subsection prior to issuance of a ~~preliminary~~ final risk classification.

~~(d)~~ No later than 30 days after expiration of the deadline set forth in G.S. 130A‑309.211(c1), or any applicable extension granted by the Secretary pursuant G.S. 130A‑309.211(c1), the Department shall issue a final classification for each impoundment as follows:

~~(1)~~ ~~The Department shall classify an impoundment as low‑risk if the impoundment owner satisfies both of the following criteria:~~

a. ~~Has established permanent water supplies as required for the impoundment pursuant to G.S. 130A‑309.211(c1).~~

b. Has rectified any deficiencies identified by, and otherwise complied with the requirements of, any dam safety order issued by the Environmental Management Commission for the impoundment pursuant to G.S. 143‑215.32. No later than July 1, 2018, the Department shall conduct the annual inspection of each dam associated with a coal combustion residuals surface impoundment required for that year, to detect any deficiencies and to ascertain, at a minimum, whether the dam is sufficiently strong, maintained in good repair and operating condition, does not pose a danger to life or property, and satisfies minimum streamflow requirements. The Department shall issue written findings of fact for each inspection and present such findings to the Environmental Management Commission. If the Department detects any deficiencies, the Commission shall issue an order directing the owner of the dam to take action as may be deemed necessary by the Commission within a time limited by the order, but not later than 90 days after issuance of the order.

~~(2)~~ ~~All other impoundments shall be classified as intermediate‑risk.~~

(e) Parties aggrieved by a final decision of the Department issued pursuant to subsection (d) of this section may appeal the decision as provided under Article 3 of Chapter 150B of the General Statutes."

SECTION 2.(c) Part 2I of Article 9 of Chapter 130A of the General Statutes is amended by adding a new section to read:

"§ 130A‑309.214A. Closure of coal combustion residual surface impoundments.

(a) Method of Closure. – All coal combustion residuals surface impoundments shall be dewatered, and the owner of the impoundment shall remove all coal combustion residuals from the impoundment, return the former impoundment to a nonerosive and stable condition, and dispose the coal combustion residuals in a municipal solid waste landfill located on the same property as the impoundment. Municipal solid waste landfills that receive coal combustion residuals pursuant to this subsection shall comply with the siting and design requirements for disposal sites established by Section .0503 of Subchapter B of Chapter 13 of Title 15A of the North Carolina Administrative Code, except that in lieu of the liner requirement of that section the landfill shall include a bottom liner system consisting of three components in accordance with this subsection. Of the required three components of the liner system, the upper two components shall consist of two separate flexible membrane liners with a leak detection system between the two liners. The third component shall consist of a minimum of two feet of soil underneath the bottom of those liners with the soil having a maximum permeability of 1 x 10^-7 centimeters per second. The flexible membrane liners shall have a minimum thickness of thirty one‑thousandths of an inch (0.030"), except that liners consisting of high‑density polyethylene shall be at least sixty one‑thousandths of an inch (0.060") thick. The lower flexible membrane liner shall be installed in direct and uniform contact with the compacted soil layer. The Department may approve an alternative to the soil component of the composite liner system if the Department finds, based on modeling, that the alternative liner system will provide an equivalent or greater degree of impermeability. The landfill shall otherwise comply with the construction, closure, and post‑closure requirements established by Section .1600 of Subchapter B of Chapter 13 of Title 15A of the North Carolina Administrative Code and shall be subject to all applicable requirements of this Chapter and all other applicable rules adopted thereunder.

(b) Schedule of Closure. – Impoundments classified pursuant to G.S. 130A‑309.213 shall be closed according to the following schedule:

(1) High‑risk impoundments shall be closed as soon as practicable but no later than August 1, 2019.

(2) Intermediate‑risk impoundments shall be closed as soon as practicable but no later than August 1, 2024.

(3) Low‑risk impoundments shall be closed as soon as practicable but no later than August 1, 2029."

PART III. EFFECTIVE DATE

SECTION 3. This act is effective when it becomes law.