Taking A Look At Significant Environmental Legislation This Session:

by Womble Carlyle Sandridge & Rice, LLP
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SB 38 – Amend Environmental Laws started as Emergency Management Amendments. The House added environmental amendments. The House sent the bill back to the Senate for concurrence. The Senate Clerk’s Office is holding the bill (which is a new wrinkle to how the Senate holds a bill without actually having to deal with the bill yet. It's another of those signs the session is winding down). The bill has various sections dealing with:

  • Transplanting oyster and clam beds
  • Exempt C&D landfills from some minimal financial responsibility requirements
  • On-site wastewater approval clarification
  • Expand daily flow design exemption for low-flow fixtures
  • Reform agency review of engineering work (with pilot program on permitting of PERCS)
  • Study temporary groundwater withdrawal permits within Central Coastal Plan Capacity Use Area
  • Amend Isolated Wetlands Regulations
  • Speed limit waiver in state parks and forests to allow driving over the 25 mph limit with permission for special events
  • Increase penalties for taking certain protected plants
  • Study use of contaminated property
  • Authority of local ordinances (regulation of fertilizer)
  • Greater freedom for Open Burning
  • Make it harder to establish Inlet Hazard Areas
  • Clarify who needs an NC Hunting License at hunting trials
  • Expedited Inter Basin Transfer permitting for Army Corps impoundments
  • Eliminate obsolete air permit reporting requirements
  • Clarify statutes pertaining to the management of venomous snakes and reptiles
  • Define “ground absorption” as new permitted onsite wastewater system
  • Repeals Waste Management Board Rules
  • Energy audit requirement of state agency buildings every other year rather than every year
  • Well Contractor Certification changes
  • Standardize local well programs
  • Establish Jean Preston Marine Shellfish Sanctuary
  • Study gravel as impervious surface for storm water regulations
  • Modification of approved wastewater systems
  • Capstone Permitting trigger for contested case
  • Changes to property disclosure act to conform with hydraulic fracturing

http://www.ncleg.net/Sessions/2013/Bills/Senate/PDF/S38v5.pdf

SB 729 - Coal Ash is a plan to address the closing impoundments that hold coal ash at power plants operated by Duke Energy. The Governor submitted a plan to the Legislature in response to an impoundment breach the allowed coal ash to flow into the Dan River. The Senate Leadership ran a version of the bill that required the identification, risk-ranking, monitoring and remediating requirements for Duke's 14 coal ash ponds, and required immediate closure of 4 of them while requiring extensive monitoring and inspections of all of them in the years leading up to their eventual closure. The bill then requires lots of testing, research and reporting going forward. It provides for conversion to fly ash or closure -- by 2029 for the lowest risk impoundments. The bill prohibited the Utilities Commission from allowing Duke from recovering those costs from retail customers unless the Commission determines the discharge to be the result of an "event of force majeure".

The bill in the Senate for concurrence establishes a Coal Ash Closure Commission that will be housed at the DENR. This commission will approve the prioritization classification of impoundments; review closure plans for impoundments; make legislative recommendations regarding coal combustion residual; and provide expertise for studies etc. The bill also establishes a fee, payable quarterly, of 0.03% of the NC jurisdictional revenues of each public utility with a coal combustion residuals surface impoundment. It is expected to raise $1,750,000. The bill transfers solid-waste management rulemaking from the Commission for Public Health to the Environmental Management Commission.

The expect the Senate to not concur and the bill to go to conference today.

SB 729: http://www.ncleg.net/Sessions/2013/Bills/Senate/PDF/S729v5.pdf

SB 786 - Modern Energy Act allows for fracking in North Carolina. Establishes the timeframe for developing a regulatory program for hydraulic fracturing and horizontal drilling; allows for the issuance of permits; establishes the NC Oil and Gas Commission; and establishes a severance tax. The law presumes liability for drinking water contamination is from fracking within a half mile. The law allows for proprietary lists of chemicals used in the fracking to be kept confidential as trade secrets with the ability of the Department of Public Safety and emergency responders to get relevant information in an emergency.

The new Fracking Law: http://www.ncleg.net/Sessions/2013/Bills/Senate/PDF/S786v8.pdf

SB 734 - Regulatory Reform is resting in Senate Ways and Means Committee but will likely be conferenced soon. This bill started out as a local ordinance bill in the Senate before the House rewrote is as a Regulatory Reform measure. It is divided into 3 sections:
I. Administrative Reforms (with no environmental changes)
II. Business Regulation: Section 2.6: Clarify Professional Engineer Exemption which is an attempt to be sure that actual engineers are doing engineering work.
III. State and Local Government Regulation

SB 734: http://www.ncleg.net/Sessions/2013/Bills/Senate/PDF/S734v6.pdf

SB 493 - Health and Safety Regulatory Reform is also in Senate Ways and Means awaiting a concurrence decision from the Senate. It contains almost nothing related to the environment. Section 12 allows for the use of onsite spring water in a restaurant located on the property of the spring.

SB 493: http://www.ncleg.net/Sessions/2013/Bills/Senate/PDF/S493v6.pdf

SB 294 - DOT BMPs for Linear Storm Water Projects allows entities with NPDES permits to use DOT best management practices as an option for storm water projects. This was the first bill signed into law in 2014.

The new law: http://www.ncleg.net/Sessions/2013/Bills/Senate/PDF/S294v5.pdf

Although the State Budget is in conference, House and Senate Budget writers agree on the following for the Department of Environment and Natural Resources:

  • Eliminate a vacant Environmental Specialist position in Storm Water Permitting in the Wilmington Regional Office leaving 6 storm water engineers and one engineer who works with NPDES permits.
  • Add operating funds to create a modern regulatory program for fracking.
  • Create 23 new DENR positions dealing with coal ash.
     

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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