July 2017 Summary
ENVIRONMENTAL MANAGEMENT COMMISSION
GROUNDWATER AND WASTE MANAGEMENT COMMITTEE
SUMMARY
July 12, 2017
The Groundwater and Waste Management Committee (GWWMC) of the North Carolina Environmental Management Commission (EMC) addressed the following at its July 12, 2017 meeting:
· Request Approval to Proceed to EMC for Public Comment and Hearing for Amendments and Readoption of 15A NCAC 13A. (Jenny Patterson, DWM)
· Request a Recommendation for the 30-Day Waiver to Proceed to the EMC for Public Comment and Hearing on Proposed Temporary Rule Amendments in 15A NCAC 2L Section .0400 as Required by SL 2017-57. (Scott Bullock, DWM-UST)
On July 12, 2017, the GWWMC met in the Ground Floor Hearing Room at the Archdale Building in Raleigh, North Carolina.
GWWMC Members in Attendance:
Mr. Bill Puette, Committee Chairman Ms. Marion Deerhake
Dr. Albert Rubin, Vice Chair of Committee Mr. Charles "Boots" Elam
Mr. David W. Anderson, WAC Vice-Chairman Mr. Richard Whisnant
Mr. Gerard Carroll
Other Commissioners Who Attended:
Mr. Charles Carter, AQC Chairman Dr. Suzanne Lazorick
Mr. Steve Keen John D. "J.D." Solomon, EMC Chairman
Others Present:
Ms. Jennie Hauser, Special Deputy Attorney General
Preliminary Matters:
In accordance to North Carolina General Statute § 138A-15, Chairman Bill Puette asked if any GWWMC member knew of any known conflict of interest or appearance of conflict with respect to any item on the July 12, 2017 GWWMC agenda. None of the members stated there was a conflict.
Commissioner Rubin made a motion to approve the minutes from the May 10, 2017 GWWMC.
The minutes from the May 10, 2017 GWWMC meeting were approved as written.
Action Item:
Request Approval to Proceed to EMC for Public Comment and Hearing for Amendments and
Readoption of 15A NCAC 13A. (Jenny Patterson, DWM)
Explanation:
The Division of Waste Management seeks approval to proceed to the EMC for public notice and
hearing for proposed amendments to 15A NCAC 13A-Hazardous Waste Management. The rules
are proposed for readoption pursuant to G.S. 150B-21.3A. In addition, permanent rulemaking
amendments are proposed to replace the Hazardous Waste Generator Improvement
temporary rules.
Presentation Description:
Ms. Jenny Patterson, DWM, Special Projects Coordinator, gave an overview of the topics to be covered. She stated that there are a total of 18 rules, in 15A NCAC 13A – Hazardous Waste Management Rules , with 16 rules being designated as necessary with substantive public interest and 2 rules designated as necessary without substantive public interest, during the periodic rule review process. Amendments are proposed for the 2 rules designated as necessary without substantive public interest (15A NCAC 13A .0101 and .0114), so even though they are not required to go through the readoption process, due to the proposed amendments, they must go through the adoption process.
As for the Hazardous Waste Generator Improvements temporary rules, those rules were adopted by EMC on May 11, 2017 and approved by the RRC on May 18, 2017. They became effective on May 30, 2017. The temporary rules freeze the hazardous waste generator rules, as they appeared on May 29, 2017, so the provisions of the federal Hazardous Waste Generator Improvements Rule would not automatically incorporate into the state rules until permanent rulemaking could occur. Temporary rules were necessary to prevent a gap in the hazardous waste management program's rules and allow for all parts of the Hazardous Waste Generator Improvements Rule to be adopted at one time.
With regards to the Hazardous Waste Generator Improvements permanent rules, the N.C. Hazardous Waste Management Program's rules must be at least as stringent as the federal rules in order to maintain our State Authorization from the Environmental Protection Agency (EPA). There are 3 provisions of the Hazardous Waste Generator Improvements rule that are
considered to be less stringent than the current state rules providing the EMC with the option on whether to adopt these 3 provisions. One is the Episodic Generation provision which allows for Very Small Quantity Generators or Small Quantity Generators to remain at that particular status, even if they have an episodic event which makes them generate enough hazardous waste to go up to a higher hazardous waste generation status, provided certain conditions are met.
The second provision is the Consolidation of Hazardous Waste from a Very Small Quantity
Generator to a Large Quantity Generator under the control of the same person. Ms. Patterson gave a couple of examples; one of which was if a doctor's office is affiliated with a hospital that has Large Quantity Generator status, then that doctor's office would be able to send their waste to the hospital.
The third provision that is considered less stringent allows for a Large Quantity Generator to
seek a waiver from the requirement to accumulate ignitable and reactive hazardous waste at least fifty feet from the property line. The waivers would be granted by the local jurisdiction over fire codes such as the local fire department or fire marshal.
Ms. Patterson went on to say that two stakeholder meetings were held in April 2017 and that
they received a large amount of positive feedback regarding the potential adoption of the three
provisions into state rules. Prior to the meetings approximately 4,000 emails were sent out to
interested parties and stakeholders with response being positive towards the adoption of the
three provisions into state rules. DWM proposes amendment of the rules to incorporate the three provisions.
The majority of the proposed amendments to 15A NCAC 13A are technical in nature with
updates to grammar and punctuation, improvement in consistency, additional clarification, and
updates to rule citations that have changed being needed as well as the removal of obsolete
information. Technical changes are proposed for: 15A NCAC 13A .0102 - .0105, .0108 - .0114, .0116 - .0119. No changes are proposed for rule .0106. Substantive changes are proposed for.0101 (changing how information incorporated by reference can be obtained) and .0107 (incorporating by reference the Hazardous Waste Generator Improvements Rule provisions).
Ms. Patterson showed the proposed schedule with the goal being to present their request for
approval to the EMC in September 2017, then to the RRC in January 2018 with the hope that
the effective date for the amendments will be March 1, 2018. She also requested the
designation of a commissioner to act as hearing officer for the proposed public hearing to be
held sometime in November 2017.
Ms. Patterson closed by stating that the Division requests approval to proceed to the EMC in
September for public comment and hearing on the proposed amendments and readoption for
15A NCAC 13A – Hazardous Waste Management Rules.
Commissioner Deerhake addressed the Chairman when stating, as a matter of full disclosure
her employer is a hazardous waste generator and, as such, would understand if the Chairman
would prefer she not participate in the proceedings.
Chairman Puette acknowledged Jennie Hauser, Special Deputy Attorney General, who
responded that normally, if a rule would affect one employer differently than others in a similar
situation, then one should not participate. However, as these rules apply to all state hazardous
waste generators there is no way to advantage others by participating.
Chairman Puette called for a motion. Commissioner Elam made a motion to approve
proceeding to the EMC. Commissioner Rubin seconded the motion. Chairman Puette then
called for a vote and the motion passed unanimously.
Action Item:
Request a Recommendation for the 30-Day Waiver to Proceed to the EMC for Public Comment
and Hearing on Proposed Temporary Rule Amendments in 15A NCAC 2L Section .0400 as
Required by SL 2017-57. (Scott Bullock, DWM-UST)
Explanation:
Session Law 2017-57 Section 13.19 requires the EMC to adopt temporary rules implementing
Section 14.16B of Session Law 2015-241. Session Law 2015-241 modifies the Department's
handling of petroleum releases from Noncommercial Underground Storage Tanks (USTs)
following the sunset of the Noncommercial Leaking Underground Storage Tank Trust Fund (SL
2015-241 Section 14.16A). The deadline to adopt the temporary rules in SL 2017-57 is October
1, 2017. This request is for a recommendation for the 30-Day waiver to proceed to the EMC
with public notice and hearing following temporary rulemaking procedures in order to meet the
legislative deadline
The proposed temporary rule amendments to 15A NCAC 2L Section .0404, .0405, .0406, .0408,
and .0409 are consistent with the requirements in SL 2015-241. The temporary rules will
enable the Department to evaluate the risk posed by the release of petroleum from
noncommercial USTs as either high risk or low risk based on factors commonly related to
noncommercial tank contents and use, prior to requiring any remedial response.
If approved by the EMC in July, staff will proceed with public notice and hearing under
temporary rulemaking procedures.
Presentation Description:
Mr. Scott Bullock, DWM, Corrective Actions Branch Head began by stating that Session Law
2017-57 Section 13.19 requires the EMC adopt temporary rules implementing Section 14.16B of
Session Law 2015-241 by October 1, 2017. The Division requests a recommendation for the 30-
day waiver to proceed to the EMC for public comment and hearing on the proposed temporary
rules for 15A NCAC 02L Section .0400.
The reason for the rule change is because Section 14.16A of Session Law 2015-241 sunsets the
Noncommercial Leaking Underground Storage Tank Trust Fund. Section 14.16B modified the
necessary response, at noncommercial UST releases, based on department risk determination.
Permanent rulemaking for 2L .0400 is scheduled as part of 2L readoption starting in mid-2018.
Per Session Law 2015-241 Section 14.16B(c), the Department shall determine the risk posed by
a reported noncommercial UST release before requiring any action by the tank owner. Cleanup
is only required at high risk sites and no further action is required at low risk sites.
The proposed amendments are, for 15A NCAC 02L .0404, Required Initial Abatement Actions by
the Responsible Party, that the existing .0404 language is limited to commercial UST releases.
Also, the Division requires noncommercial UST releases for emergency responses in high risk
sites and, lastly, leave exempt low risk noncommercial USTs from initial abatement.
For 15A NCAC 02L .0405, Requirements for Limited Site Assessment, existing language is limited
to commercial UST releases. Also, the Division requires limited site assessment for
noncommercial UST releases only where determined to present an unacceptable risk, such as
emergency or high risk.
15A NCAC 02L .0400, Discharge or Release Classifications, define existing .0406 high,
intermediate and low risk language as applying to commercial UST releases. It defines high and
low risk for noncommercial motor fuel UST releases which matches commercial UST releases.
Lastly, it defines high and low risk for other noncommercial UST releases, typically heating oil.
Under 15A NCAC 02L .0408, Assessment and Remediation Procedures, existing language is
limited to commercial UST releases. Assessment is required only at high risk noncommercial
UST releases and the closure reporting requirement for low risk noncommercial UST releases
will be removed.
Lastly, 15A NCAC 02L .0409, Notification Requirements, references proposed .0404(c) rule in
.0409(b) for proper public notice when closing low risk noncommercial UST releases.
Mr. Bullock then presented the proposed schedule and noted that, even though an OSBM Fiscal
Note is not required for temporary rules, the Division intends to submit one by December 31,
2017, as Session Law requires.
In closing, Mr. Bullock stated that the Division requests a recommendation for the 30-day
waiver to proceed to the EMC with public comment and hearing on the proposed temporary
rules for 15A NCAC 02L Section .0404, .0405, .0406, .0408, and .0409.
Chairman Puette asked Mr. Bullock if we must have the temporary rule adopted by a certain
date? Mr. Bullock responded, yes, by October 1, 2017.
Chairman Puette then called for a motion. Commissioner Carroll made a motion to approve
the 30-day waiver and to proceed to the EMC. Commissioner Whisnant seconded the motion.
Chairman Puette called for a vote and the motion passed unanimously.
Commissioner Deerhake had a procedural question and asked if the motion was to waive the 30-day rule or would that be handled tomorrow?
Ms. Jennie Hauser responded that the request was for the waiver of the 30-day rule but the form of the motion was to take it to the EMC, which would require the waiver.
Commissioner Deerhake questioned whether a separate motion would be required?
Ms. Jennie Hauser stated that was not the case for this recommendation. At the EMC, tomorrow, first there will be a vote as to whether to waive the 30-day rule and then there will be a separate discussion.
Chairman Puette asked if Ellen Lorscheider would be providing an update, in September, on the new federal legislation passed in December 2016. Michael Scott, Division Director, answered yes, that an update is planned, for September, to go in front of the GWWMC or the full EMC, whichever is requested. The Division continues to meet regarding coal combustion residuals rules.
Chairman Puette then spoke to EMC Chairman Solomon, asking if the update was to be brought up at the GWWMC or the EMC?
Chairman Solomon responded in the affirmative to the update being presented at the full EMC in September.
Chairman Puette adjourned the July 12, 2017 GWWMC meeting.
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