Loopholes in the draft coal ash landfill rules; two public hearings scheduled this week

The public hearing started with an apology and without many members of the public.

Only four days before, the NC Department of Environmental Quality had published a notice on its website that it would hold the first hearing on 89 pages of draft rules governing coal ash landfills. It wasn’t surprising then that the seats in the Person County Office Building in Roxboro last week were largely occupied by DEQ employees. 

“I apologize,” said Ellen Lorscheider, chief of the Division of Waste Management, who attributed last-minute changes and legal review for the short notice. “We wanted to take public comments now” to meet future deadlines set by the Environmental Management Commission to put the rules in place, she added.

However, the notice requirement is 15 days, said Megan Kimball, attorney with the Southern Environmental Law Center. She questioned whether DEQ was “serious about accepting public comment,” considering the late notification.

The second and third hearings are scheduled for this week:

• Tuesday at the Myers Center Meeting Rooms at Gaston College, 201 Hwy. 321 South, Dallas;
• Thursday U-170 building at Cape Fear Community College, 411 N. Front St., Wilmington.

Both meetings start at 6 p.m.

The draft rules about coal ash landfills incorporate state law with federal Coal Combustion Rules, passed by Congress in 2016 as part of the WIIN Act.  (Coal ash impoundments are different than landfills. The former are unlined, seeping pits, regulated under the state’s Coal Ash Management Act. The latter are lined and have leachate collection systems, but by no means environmentally foolproof.)

The CCR rules allow states to regulate their own coal ash landfills, as long as their rules are at least as stringent as the EPA’s. These draft landfill rules cover activities related to construction, design, closure, recordkeeping, monitoring, recycling and post-closure. However, they do not apply to clean up or enforcement, said Ed Mussler, permitting branch supervisor in the Waste Management Division.

Several provisions in the draft rules appear to contain loopholes that could be exploited by Duke Energy or any owner of a coal ash landfill, as it builds new facilities.

• Coal ash landfills can be expanded. The landfill owner does have to apply for a permit amendment if the tons of waste increase by greater than 10 percent; if the landfill boundaries expand from the original site plan (which could mean the landfill could be built higher but not wider); and if the landfill has a new owner.

And because of House Bill 56, passed last year by the legislature, landfills can qualify for “life-of-site” permits. Previously there were regularly schedule permit renewals, which allowed for public comment on the landfill and its operator. The opportunity for public participation in the permitting process is now sharply reduced.

• The landfill permittee shall “take all reasonable steps to minimize releases to the environment,” the draft reads, “and shall carry out such measures as are reasonable to prevent adverse impacts on human health or the environment.”

However, “reasonable” is not defined and subject to interpretation.

• The rules do require a site characterization study. It would include mapping businesses, schools, homes, public and private water supplies, zoning, other areas of contamination, and floodplains, among other features.

There is no requirement for an environmental justice analysis to determine if communities of color or low-income neighborhoods would be disproportionately affected. In addition, the rules require new or expanded landfills (in width, not height) to establish only a 300-foot buffer between the facilities and property lines for monitoring purposes. That is equivalent to the length of a football field.

New landfills require only a 500-foot buffer between it and existing homes and wells. A 100-foot minimum is required between these landfills and surface waters.

• Landfill permit holders aren’t required to get approval from local governments to place a facility. Presumably, though, a landfill would have to comply with zoning regulations.

The draft rules do not address coal ash contamination that has seeped from the unlined impoundments into the groundwater and drinking water; the Coal Ash Management Act regulates the groundwater impacts.

Hope Taylor, executive director of Clean Water for North Carolina, said she is concerned that some of the draft rules for landfills could be applied retroactively to the impoundments. “I’m concerned about the water supply and increasing contamination. We need to get the ash out of the groundwater.”

Duke Energy plans to dewater the impoundments at its Mayo and Roxboro plants, line and cap them, leaving the coal ash in place. The utility maintains that excavation would create more environmental problems. It would also be very expensive.

“The effluent runs through my property,” said Doyle Peed, who owns 56 acres behind the Mayo plant. “It’s not proper to store the coal ash. It needs to be removed. We need to make sure there are no loopholes so old ash pits can contaminate forever.”