20150041 Ver 1_Hearing Officer's Report_20150812

NCDENR
North Carolina Department nfEnvironment and Nafnra/Resources
Pat McCrory Donald R. van der Va@rt
GQV8rDOr Secretary
July 29,3O15
MEMORANDUM
To: S. Jay Zimmerman, P.6
Director, Division of Water Resources
From: Jason M. Watkins, Field Operations Branch Head
Division of Waste Management, Solid Waste Sendon --�—'
Subject: Hearing Officer's Report and Recommendations
Green Meadow, LLC and Chansh, Inc. Proposed Coal Ash Reuse Projects
Individual 401 Water Quality Certification and Isolated Wetlands General Permit
Chatham and Lee Counties
|semed as the Hearing Officer for the Subject Public Hearings held at the Dennis A. Wicker Civic
Center inSanford, NConApril 12, 2015 and at the Chatham County Courthouse in Phtsboro, NC on
April 16, 2015. The public hearings were held under the authority of the Coal Ash Management Act
of 2014, the Mining Act of 1971 and Title 154 N[AC OZH .0504. These were combined public
hearings to receive comment for the Division of Water Resources' 401 water quality certification
and isolated wetlands general permit, the Division of Energy, Mineral and Land Resources' draft
modified mining permits and the Division of Waste Management's draft structural fill permits
needed by Green K4eadn*\ LbCand Chanah, Inc. in order to reuse coal ash at the Colon Mine Site in
Lee County and the Brickhaven No. 2 Mine Tract "A"in Chatham County. Separate Hearing Officer's
Report and Recommendations were prepared for the draft modified mining permits (Attachment K)
and the draft structural fill permits (Attachment L).
In addition to listening to oral comments at the public hearings, 1 have reviewed all written
comments received prior, during and after the public comment period. In preparation of this report,
| have considered all of the public comments, the public record, discussions with Water Resources
staff related to the rules, their review of the applications and the site visits for the project.
The report has been prepared using the following outline:
i Site History/ Background
U. April l3,2O15 Public Hearing Summary
Ui April 26,2Ol5 Public Hearing Summary
|V. Comments
V. Recommendations
Vi Summary
VU. Attachments
450 WeaHonemMRoad.Suite 30N.N0nmton-Sa|em.Nm1h Carolina 27185
Phone: 33G-77S'98OO\|ntemet: wwwocdenr.Uov

1. History/ Background
In November 2014, Green Meadow, LLCJDd ChJr8h. Inc. submitted applications for mining
permit modifications and structural 0U reuse permits to the Division of Energy, Mineral and
Land Resources (DEK8LR) and the Division of Waste Management /DVVM\ as allowed under the
Coal Ash Management Act of3O24(CAMA14).(Jn Jan. 28,2O15, the state approved a request io
transfer mining permit #53-05 for the Colon Mine in Lee County, and permit #19-25 for the
BrickhaYen #2 Tract in Chatham County to Green Meadow, LL[ This was a needed first step
in moving the permitting process for these two sites forward.
These two projects musta|soottaino401WaterQua|ity Certification and Isolated Wetland
General Permit from the Division of Water Resources (DWR).
The following ba brief history of the proposed project |ocationsandcertNQcaton/nennbsunder
Colon K8ine- Mining Permit #53-O5
On Oct. B, 1972Lthestategranted mining permit #53-O5 to Sanford Brick and Tile Co. to
conduct mining activities atthe Colon mine site located in Lee County, five miles southeast
of the City of Sanford off Brickyard Rd. Between October 1972 and April 2005, mining
permit #53-05 was renewed three times, in adherence to the standard 10-year mining
permit renewal cycle. During this same time period, mining permit #53-05 was modified
nine times. Three of the modifications were changes to the corporate name. On Jan. 23,
2015, mining permit #53-05 was transferred from General Shale Brick Inc. to Green
K8eadow\LLC.
The state mining program has issued an approval to Green Meadow to modify mining
permit #53-05. The modifications include redesigning the erosion and sedimentation
control measures throughout the site and reducing the affected acreage to 314 acres. The
modification also includes changing the method for reclaiming the mine by constructing
structural fill using coal combustion byproducts in accordance with the provisions of
CAK4A14. Reclamation of the mine site using structural fill also required a separate permit
from the DVVW1, permit #5306-STRUCT-2015. Impacts to jurisdictional streams and
wetlands and isolated wetlands also require a 401 water quality certification and isolated
wetlands general permit from the DVVR(#15-OO41&15-OO42).
Bhckhaven No. 2 Mine Tract "A" Permit #l3-Z5
On Aug. 30 1985, the state granted mining permit #lD-25to Cherokee Brick Co. to conduct
mining activities at the 8rickhaven No. 2 Mine Tract "A" site located in Chatham County, six
miles south ofK4oncure. Between August 1985 and October 2014, mining permit #19-25
was renewed two times, in adherence to the standard lO-year mining permit renewal cycle.
During this same time period, mining permit #19-25 was modified eight times. Three of the
modifications were changes tothe corporate name. Dn Jan. Z9,2Ol5, mining permit #19-25
was transferred from General Shale Brick, Inc. 10 Green Meadow, LL[
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The state mining program is currently reviewing 3 request from Green K18JdOvv L[CtO
modify mining permit #19-25. The proposed modification would include redesigning the
erosion and sedimentation control measures throughout the site and reducing the affected
acreage to 267 acres. The modification also includes changing the method for reclaiming
the mine by constructing structural fill using coal combustion byproducts in accordance with
the provisions of[AK4A14. Reclamation Of the mine site using a structural fill also requires a
separate permit from the DVVK4, draft permit #191O-STRUCT-2Ol5. Impacts tVjurisdictional
streams and wetlands and isolated wetlands also require a4O1 water quality certification
and isolated wetlands general permit from the DVVR(#15-OO4I& 15-0042).
As part of the review of the 401 water quality certification and isolated wetland general permit
application, staff from DVVR visited the Sanford (Colon) and Bhckhaven Mine sites onJan. 16,
2015. DVVR Staff also conducted a pre-application meeting for the project and visited the
BriCkhaven site On Jan. 27,2O15.
Under the authority oFCAK4A14. the Mining Act of 1971 and Title 15A NCAC OZH .0504, the
Department of Environment and Natural Resources (DENR) held a public comment period from
March 12, I015 until May 16, 2015 to accept public input onthe draft permits. The public
comment period included two public hearings held in the counties where the proposed projects
are|ocated.
Notice of the public hearings and availability of the 4OI water quality certification and isolated
wetlands general permit application was posted to the OENR vvebsite on March 12, 2015
(Attachment B), the first day of the public comment period. Additiona|hynoticevvaspubUshed
in The Chatham News and The Sanford Harald on March 12, 2015 (Attachment C).The public
comment period ended on May 1G,2OI5.
111. April 13, Public Hearing
A public hearing was held April 13, 2015, at p.m. at the Dennis A. Wicker Civic Center in
Sanford, N[ The public hearing was held under the authority of the CAK4AI4, the Mining Act
of 1971 and Title 15A NCAC 02H .0504. This was a combined public hearing to receive comment
for the DVVR's 40I water quality certification and isolated wetlands general permit application
(Attachment A), DEN1LQ's draft modified mining permits and the OVVK4's draft structural fill
permits needed by Green Meadow, LLC and Charah, Inc. in order to reuse coal ash at the Colon
Mine Site in Lee County and the Brickhaven No. 3 Mine Tract °A"in Chatham County.
134 people attended the April 13 public hearing, including 24 staff members from DENR. A total
of 110 individuals signed the attendance sign-in sheets at the registration table (Attachment D).
The hearing officer provided Opening remarks before opening the hearing for public comment.
33 individuals registered in advance of the hearing to provide comments, and eight additional
individuals made comments for a total of 40 speakers. Speakers were given three minutes for
initial presentations. Additional time was allowed for speakers after everyone that registered to
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Speak was finished. The list of speakers i5 included (Attachment F). Of the 40 individuals that
spoke at the public hearing, none were in favor of the certification being approved.
The public hearing transcript, including oral comments, is attached to this report (Attachment
H). DVVR also received approximately 87 written comments during the public comment period
from local and state government agencies, citizens and citizen groups (Attachment J). Several of
the comments were written transcripts of the comments provided during the public hearings. A
summary of the comments for both hearings and the comment period, along with detailed
responses that have a direct impact on the certification decision making process are included in
Section Vbelow.
111, April 16- 2015 Public Hearing
A second public hearing was held April 16, 2015, at 6 p.m. at the Chatham County Courthouse
in Pbt3boro\ N[ The public hearing was held under the authority of the [AMAI4/ the Mining
Act of I971 and Title 25A NCAC 02H .0504. This was a combined public hearing to receive
comment for the DVVR's 401 water quality certification and isolated wetland general permit
application (Attachment A), DEKULR's draft modified mining permits and the OVVK8's draft
structural fill permits needed by Green Meadow, LLC and Charah, Inc. in order to reuse coal ash
at the Colon Mine Site in Lee County and the Brickhaven No. 2 Mine Tract "A" in Chatham
County.
I37 people attended the April 15 public hearing, including 17 staff members from DENR.Atotal
of 120 individuals signed the attendance sign in sheets at the registration table (Attachment E).
The Hearing Officer provided opening comments before opening the hearing for public
comment. 37 individuals registered in advance of the hearing to make comments and four
additional individuals made comments for a total of 41 speakers. Speakers were given three
minutes for initial presentations and an additional time of two minutes was provided after
everyone that registered to speak was finished. One speaker left the hearing prior to being
recognized and five speakers took the opportunity to comment a second time. The list of
speakers is included (Attachment G). Of the 40 individuals that spoke at the public hearing,
none were in favor of the certification being approved.
The public hearing transcript including OrB| comments i5 included (Attachment |). In addition to
the public hearings DVVR received approximately 87 written comments during the public
comment period from local and state government agencies, citizens and citizen groups
(Attachment J). Several of the comments were written transcripts of the comments provided
during the public hearings. A summary of the comments for both hearings and the comment
period, along with detailed responses that have direct impact onthe certification decision
making process, are included in Section Vbelow.
El

IV. General Comments
The f0|k]vvng i5 a summary of the comments received during the Aoh/ 19 and 16 public
hearings, emnailS and other written COnnrnents received by DVVR. Consistent throughout the
comments was opposition to the approval of the 401 water quality certification and isolated
wetlands general permit based ona varying set ofcriteria.
* There were multiple comments voicing concerns directed at the general or broad
management of coal ash. Commenters were particularly concerned about why the ash
was not being managed on the property where it was generated, the availability of
alternative technology (solidification, etc.), whether reuse of ash was being adequately
explored, and whether the current process was only providing a short-term solution
that would lead tn longer-term issues for the next generation.
w
There were multiple comments voicing concerns directly related to concerns over the
quality of life of the citizens of Lee and Chatham counties that live in close proximity to
the proposed structural fill sites. Of particular concern was increased truck and rail
traffic due tothe project size, in many cases where the commenters noted overcrowded
roads and proximity to areas like schools, daycare, etc Other issues such as dust (both
from vehicles and Site operations), ground and surface water contamination, |OSs of
property values, and a perceived targeting ofa poor, rural community were also raised
repeatedly.
w
There were numerous comments voicing concerns directed at the various government
entities involved in the process including concerns over the NC Legislature and
provisions in the CAK4Al4 blocking local government approval of these sites, concerns
that the /0c8| governments were not fighting back for their citizens, and a distrust in
DENR and its ability to permit and ensure compliance of these sites due to staffing levels
and outside influence. Other general governrnent-re|aied statements involved things
such as the need for more renewable energy, forcing Duke Energy to cease using coal,
w
There were multiple cOnornentS voicing concerns about why DENR was permitting the
movement of ash from the Duke Energy facilities, where it was produced, to Lee and
Chatham Counties.
�
There were multiple comments voicing concerns that the permit review process was
being rushed without considerations given to on-site management, alternative
technologies, etc.
�
There were multiple [ononnentS regarding DENR,S ability to permit these sites due to
enforcement and litigation actions involving Duke Energy.
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* There were multiple comments voicing concerns related to Green W188dOvvS LLC8nd
Ch3n]h, |nc.'5 ability to address future financial and environmental U8bi|hv of the
management of coal ash at these two sites. Commenters stated that the $2 million
coverage for future contamination issues was not enough to cover the true costs.
�
There were numerous comments voicing concerns about liners leaking and resulting
adverse impact on groundwater and the environment. Also related to liner systems,
there were multiple comments about how long liners are designed to last, including
the concern that the industry warranty is only for five years.
�
There were numerous comments voicing concerns that the projects under review are
not mine reclamation activities but are landfills. In addition, there were concerns about
the end use of the projects oncecornp|etednotbeing°beneUda|"innature, as the fills
could not sustain future development activities.
� There were several comments remarking that the coal ash will be placed in areas of the
mine that have not had product removed yet. There was also comment made that the
mine was over five stories tall, implying the structural 0U will be at a significant height
above the surrounding land.
�
There were numerous comments voicing concerns about the potential (expressed in
comments as certainty) that dust could be released from the ash during transportation
and the potential for dust emissions resulting from the placement of ash in the
structural fills and resulting operations.
�
There were several comments voicing concerns on the testing protocol to be used for
screening of the pond contents.
*
There were numerous comments voicing concerns on adverse water quality
contaminants, groundwater contamination, and impacts on water and groundwater in
general as it is a drinking water source, due to |eachate generated from the structural
�
There were comments requesting additional monitoring well locations and monitoring
events ot each site.
w
There was a comment suggesting water quality monitoring b8 performed downstream
at both sites and be sampled for aluminum, boron and mercury.
� There were comments concerning whether appropriate considerations have been
�
There were multiple cornn08ntS voicing concerns about the loss of wildlife and aquatic
habitat including the project's potential to impact the [ape Fear shiner, a federally
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listed species located downstream of the project.
There were comments concerning stormwater management, including questioning
how water in clay pits would be treated prior to discharge and noting that stormwater
containment and treatment facilities must account for new patterns of extreme
weather, and the timeline for notifying the agency of problems with stormwater
controls is too long.
There was a comment voicing concerns about the cumulative impact to isolated and
jurisdictional wetlands.
There was a comment stating that stream restoration at another location is never
sufficient to restore ecological values of those filled.
V. Certification Specific Comments and Recommendations
Based on the review of public comments, the application, the North Carolina General Statutes
and Administrative Code, and discussions with DWR staff, I offer the following comments and
recommendations on the criteria for issuance of a 401 Certification pursuant to 15A NCAC
021-1.0506 and an Isolated Wetlands Permit pursuant to 15A NCAC 02H .1305.
(1) Has no practical alternative under the criteria outlined in Paragraph (f) of this Rule.
Paragraph (f) states: "A lack of practical alternatives may be shown by demonstrating
that, considering the potential for a reduction in size, configuration or density of the
proposed activity and all alternative designs the basic project purpose cannot be
practically accomplished in a manner which would avoid or result in less adverse
impact to surface waters or wetlands."
The proposed project is to dispose of coal ash in a suitable manner and in an
environmentally sound location to facilitate the closing of coal ash basins across North
Carolina as required by CAMA14. Over 160 alternatives were evaluated, including
industrial solid waste landfills, municipal solid waste landfills, close-in-placelcap-in-
place, materials/product use, other "beneficial use" /structural fill projects, project as-
proposed/mine reclamation, saltstone encapsulation and no action. The U.S. Army
Corps of Engineers has determined that the applicant's preferred alternative is the Least
Environmentally Damaging Practical Alternative (LEDPA).
Recommendation: None. The applicant has sufficiently demonstrated that there is no
practical alternative that can accomplish the projects basic purpose with less adverse
impact to surface water or wetlands.
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(2) Will minimize adverse impacts to the surface waters based on consideration of
existing topography, vegetation, fish and wildlife resources, and hydrological
conditions under the criteria outlined in Paragraph (g) of this Rule.
Paragraph (g) states: "Minimization of impacts may be demonstrated by showing that
the surface waters or wetlands are able to continue to support the existing uses after
project completion, or that the impacts are required due to:
(1) The spatial and dimensional requirements of the project; or
(2) The location of any existing structural or natural features that may dictate the
placement or configuration of the proposed project; or
(3) The purpose of the project and how the purpose relates to placement,
configuration or density.
The applicant believes that impacts to surface waters and wetlands have been
minimized to the greatest extent practical. The proposed rail line at the Sanford (Colon)
mine was redesigned to avoid the largest wetland on site and other wetlands and
streams, avoiding a total of 4 acres of wetlands and 430 linear feet of streams. A
stockpile and laydown yard was also eliminated at the Sanford (Colon) mine and a rail
line crossing was reduced, which also reduced impacts by 0.33 acres of wetlands and 837
linear feet of stream. The Brickhaven site was designed to avoid the three largest 404
wetlands on-site. Four of the 6 proposed stormwater basins at Brickhaven were
designed to avoid streams and wetlands. The proposed rail line at Brickhaven was also
realigned to avoid -2,000 linear feet of stream impacts
Recommendation: None. The applicant has sufficiently demonstrated that impacts to
surface waters and wetlands are required due to spatial considerations, natural features
and the purpose of the project.
(3) Does not result in the degradation of groundwaters or surface waters.
Fill material placed in jurisdictional waters will be of suitable fill material, excluding coal
ash. Upland fill areas for the project will include coal ash material, which shall be
handled, utilized and placed in accordance with rules and regulations outlined in 15A
NCAC 13B and CAMA14, and with the permits issued by DWM and DEMLR.
Each structural fill facility shall be constructed and operated to ensure groundwater
protection in accordance with N.C. General Statute 130A.-309.220(b)(4). The structural
fills will be constructed with a two foot compacted clay layer overlaying by a 60-mil thick
geo-membrane liner or equivalent. The bottom of the clay layer is a minimum of five
feet above the groundwater table at each location. In addition, a leachate collection
system will be constructed on top of the plastic liner to intercept and direct all
percolating water into leachate collection tanks. Once the fill is complete, it will be
encapsulated in another low - permeability soil layer, a geo-synthetic, and protected by
upto six feet of sail on top. Please seethe Attachment L for further discussion.
E.*]

There were concerns noted in the comments related to fugitive dust accumulating
in /around surface water features that may cause impacts. Dust control measures were
addressed as part of the DWM structural fill permit and hearing report in Attachment L.
Recommendation: The project is not expected to violate water quality standards if the
conditions in the 401 Water Quality Certification and Isolated Wetland General Permit
are fully implemented by the applicant (or its successor). The 401 Certification and
Isolated Wetland General Permit should be conditioned to require full compliance with
the following permits:
• Colon (Sanford):
o Permit No. 1910-STRUCT-2015, issued by DWM
o Mining Permit No. 53-05, issued by DEMLR
o NPDES Permit No. NCG020854, issued by DEMLR
• Brickhaven:
• Permit No. 5306-STRUCT-2015, issued by DWM
• Mining Permit No. 19-25, issued by DEMLR
• NPDES Permit No. NCG020354, issued by DEMLR
The 401 Certification and Isolated Wetland General Permit should also include a
condition to allow for DWR to reevaluate and modify the certification in accordance with
15A NCAC 02H .0507(d) if DWR determines that state water quality standards are not
being met.
(4) Does not result in cumulative impacts, based upon past or reasonably anticipated
future impacts, that cause or will cause a violation of downstream water quality
standards.
Cumulative impacts are those impacts that would result from the incremental effects of
the project added to other past, present and reasonably foreseeable future activities
(15A NCAC 01C.0103). Impacts within the project boundaries include mine reclamation
and "beneficial use" in the form of structural fill. Present and future development within
the Cope Fear River Sub-basin 03-06-07 is independent of this project.
Recommendation: The project is not expected to result in cumulative impacts that
violate water quality standards, if the conditions in the 401 Water Quality Certification
and Isolated Wetlands General Permit are fully implemented by the applicant (or its
successor). The 401 Certification and Isolated Wetlands General Permit should be
conditioned to require full compliance with the monitoring requirements in the Structural
Fill Permits.
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(5) Provides for protection of downstream water quality standards through the use of on-
site stormwater control measures.
Both the Brickhaven and Colon (Sanford) mining sites have NPDES (National Pollutant
Discharge Elimination System) Stormwater Permits, NCG020354 and NCG020854,
respectively. In addition, any land disturbing activities at the sites requiring an Erosion
and Sedimentation Control Plan are covered under the NPDES Construction Stormwater
General Permit NCG010000.
Recommendation: The 401 Certification and Isolated Wetland General Permit should be
conditioned to require full compliance with the NCG020354, NCG020854 and
NCG01 0000 NPDES Stormwater Permits.
(6) Provides for replacement of existing uses through mitigation.
The NC Division of Water Quality (now DWR) utilized Wetland Program Development
Grant funds from the U.S. EPA to complete a studyA to investigate the regulatory success
rates of wetland and stream mitigation projects throughout the state, and found that
overall success of stream projects meeting the regulatory requirements was —75%.
Both federal and state requirements allow for the purchase of in lieu fee credits to offset
unavoidable impacts to streams and wetlands. DWR requires mitigation at a 1:1 ratio
for stream impacts above 150 linear feet and wetland impacts above one acre. The
applicant has proposed mitigation through an in lieu fee payment to NC Division of
Mitigation Services (DMS), formerly the Ecosystem Enhancement Program, for 4,166
linear feet of stream and 1.64 acres of wetland at a 1:1 ratio.
A Hill, T., E. Kulz, B. Munoz and J.R. Dorney. 2013. Compensatory Stream and
Wetland Mitigation in North Carolina: An Evaluation of Regulatory Success.
Environmental Management. 51(5):1077-91
Recommendation: The 401 Certification and Isolated Wetland General Permit should be
conditioned to require payment be made to DMS for 4,166 linear feet of stream and 1.64
acres of wetland prior to any impacts to surface waters.
V1. Summary
Public comments concerning the two public hearings focused on several major issue areas,
including quality of life, transportation, construction standards for liners, ground and surface
water contamination, Duke Energy's environmental history, property rights, environmental
justice, the permitting process and water supply protection in the Cape Fear River Basin. Due to
the number of public comments, many of which expressed concerns on the same issues, each
comment is not addressed individually. Only comments that have direct relevance to the
certification decision have been addressed in the recommendations (Section V).
Niue

As stated above, a thorough review of all public comments received and the project recordhas
been conducted, and additional insight has been obtained through discussions with DVVRstaff
and Site visits. Based On all of this information, it is my recommendation that the 401 water
quality certification and isolated wetlands general permit be issued and subject to the
conditions included in the recommendations in Section V. |tis further recommended that DVVR
include any additional conditions necessary to ensure that the projects will 0nP8t state water
quality standards.
It should be noted that there were multiple comments requesting a delay in permit issuance to
allow time for the community to sample ground and surface water in the area SOastOestablish
baselines for future reference.
As stated in the hearing reports for the DEK4LR and OWM permits, this permitting action is not
preventing the community from sampling ground or surface water. There should be adequate
time between certification/permit issuance and the placement of the first loads of coal
combustion products inthe fills for sampling efforts to be accomplished.
Residents can learn more about having their private well tested by going to
vvvvvv.TestYOu[VVel|.nc.gmv, a vvebSite provided by the N.C. Department nfHealth and Human
Services. The most important thing private well owners can do to ensure the safety of their
drinking water is regular water testing.
V111. Attachments (on CID)
A. February 18, 20154O1 Water Quality Certification Application
B. Notice of Public Hearings —DENRvvebsite, March 12, 2015
C. Notice of Public Hearings — Chatham News 6\ Sanford Herald, March I2.2O15
D. April 13,2O15 Non-speaker sign-in sheets
E. April l6,2O15 Non-speaker sign-in sheets
F. April 1B,ZO15 Speaker list
G. April 1G,2Ol5 Speaker list
H. April I3,JOl5 Public Hearing transcript, including oral comments
|. April 16,2O15 Public Hearing transcript, including oral comments
J. Written comments received during the comment period, including at the public
hearings
K. June 4, 2015 Hearing Officer's Report and Recommendation on Draft DEMLR
Modified Mining Permits
L. June 5, 2015 Hearing Officer's Report and Recommendation on DWM's Draft
Structural Fill Permits
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