Minutes of the Environmental Management Commission

Minutes of the Environmental Management Commission

October 11, 2017 Special Meeting

The North Carolina Environmental Management Commission met on Wednesday, October 11, 2017 at 9:00 a.m. in the Ground Floor Hearing Room in the Archdale Building, Raleigh, NC.

Meeting Called to order: J.D. Solomon, Chair

The meeting was called to order at 9:04 a.m. with Chair Solomon presiding. He provided the notice required by N.C.G.S. §138A-15(e). No conflicts of interest or appearances of conflicts of interest were identified at this time.

Present: 14 - J.D. Solomon, Chair, Julie Wilsey,Vice-Chair, David Anderson (telephonically),
Gerard Carroll (telephonically), Charlie Carter (telephonically), Marion Deerhake telephonically), Charles Elam (telephonically), Mitch Gillespie, Steve Keen (telephonically),
Dr. Stan Meiburg (telephonically), Bill Puette (telephonically), Dr. Bob Rubin, Butch Smith (telephonically), Richard Whisnant (telephonically)

Others Present: Commission Counsel Mary Lucasse

Absent: Dr. Suzanne Lazorick

1. Preliminary Matters

Chair Solomon sent best wishes for good health to Commission Counsel Hauser and Commissioner Smith and the Commission’s sympathy to the Anderson family on their loss.

II.Action Item

Agenda Item 17-37:Request to Proceed to Public Notice and Hearing with Proposed Amendments to 15A NCAC 02H .1019 (Coastal Stormwater Rule) and Associated Fiscal Note

Annette Lucas, Division of Energy, Mineral, and Land Resources, presented a request to proceed to public notice and hearing with amendments to the Coastal Stormwater Rule 15A NCAC 02H .1019 and associated fiscal note. This amendment is needed to make the applicability criteria for residential developments consistent withSession Law 2008-211 and SB16.

Commissioner Rubin moved that the EMC approve to proceed to public notice and hearing the proposed amendments to 15 NCAC 02H .1019 (Coastal Stormwater Rule) and the associated fiscal note.Commissioner Wilsey seconded the motion. The motion passed unanimously.

Dr. Meiburg indicated that while he voted for the motion, he did so out of respect for the rule of law, not because he was convinced that this was the best policy choice.

III.Information Item:

Agenda Item 17-15:Introduction to the Special Order by Consent (SOC) Process and the Possible
Use of a SOC to address Seeps at Duke Energy Coal Ash Basins

Bob Sledge, Division of Water Resources provided an overview of the SOC process and the EMC’s role in order issuance. Duke Energy has applied for a SOC related to unpermitted discharges at eleven of its operating and retired coal fired power plants. Staff provided a brief explanation of seepage and seeps as they relate to Duke Energy’s unlined coal ash impoundments and the challenges seeps pose in the permit process.

Following the presentation, the Commission was advised that further information on this issue would be provided at the November meeting and a proposed SOC may be brought before the EMC for decision as early as the Commission’s January meeting. During the discussion, the following comments and questions were raised:

Commissioner Carroll commented that more than one hearing may be necessary to cover the geographic areas in North Carolina impacted by a proposed SOC.

Commissioner Puette asked whether the use of a SOC would prevent citizen suits from being filed.

Commissioner Carter asked why staff anticipated the SOC would come to the EMC for decision. In response, the Commission was informed that the Director of DWR is delegated to sign and fully execute the SOC only if no significant comment is received. In this case, it is anticipated that there will be significant comment which will require public hearing and the EMC to make the final decision on the issuance of the SOC.

Another question was raised regarding whether a SOC would be for a discrete time period. Mr. Sledge explained that experience at the Dan River and Riverbend sites indicates that as coal ash basins are decanted and dewatered, the seeps disappear. Thus, it is likely that the SOC would cover discharges from seeps until closure activities are completed at the ash basins per the terms of the Coal Ash Management act, and the discharges from seeps are eliminated. He also explained that while a SOC is usually for a fixed period of time it can be renewed as needed and the terms of each SOC are negotiated to address the specific situation at issue.

Commissioner Whisnant asked that in November the Commission be provided with a list of all outstanding SOCs, including the date when entered, the duration, and comments on compliance. Assistant Secretary Holman confirmed that he was specifically interested in SOC relating to water resources.

Commissioner Meiburg observed that the State’s SOC appears to have much in common with federal enforcement proceedings which address the issue of a permitee’s liability for discharging without a permit. He pointed out that permit terms can be complicated and that an SOC can be used in lieu of permit terms to specifically address the problem. A federal SOC can forestall the ability to bring a citizen suit under federal law. Federal enforcement proceedings may provide for civil penalties and also stipulated penalties for failure to meet the terms of the SOC. It is a tool to ensure that the permitee is doing everything necessary to eliminate seeps.

Commissioner Wilsey requested that staff add days to the public comment period because it would take place over the holiday season and she didn’t want the public to feel it did not have adequate time to respond.

Chair Solomon stated a purpose of bringing this information item to the Commission at this special dmeeting was to provide transparency in the public process. This special meeting was “to make an early introduction and to” provide transparency.

Commissioner Deerhake requested that staff provide a record of the enforcement history relating to the sites for which a SOC is proposed. When asked to clarify the scope of her request, Commissioner Deerhake recognized that staff may have some time constraints that might limit the scope, but expressed an interest in receiving all relevant enforcement history.

IV.Concluding Remarks

Directors’ Comments

Director Tracy Davis, Division of Energy, Mineral & Land Resources thanked the Commission for holding the special meeting to move the rule revisions forwarded.

Jay Zimmerman, Director of Division of Water Resources also thanked the Commission holding the special meeting.

Sheila Holman, Assistant Secretary, North Carolina Department of Environmental Quality had no further comments.

Commission Members

There were no other comments from the members

Commission Counsel

Counsel Mary Lucasse commented that the Commission can expect to see revisions to the Internal Operating Procedures at the next meeting.

Chair

Chair Solomon thanked the staff, counsel and the commission.

With no further business before the commission, the Chair adjourned the meeting at 10:30 a.m. on October 11, 2017.

Approved this day____ of October, 2017.

______

J.D. Solomon, Chair of the EMC

1 of 4