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HomeMy WebLinkAboutGWWMC_MeetingSummaryForApproval_08May2024Meeting The recording of the May 8, 2024, GWWMC meeting can be accessed at this link: https://youtu.be/TMUnBSzU9Lw?si=nYqKRNf7A4GCgPA1 ENVIRONMENTAL MANAGEMENT COMMISSION GROUNDWATER AND WASTE MANAGEMENT COMMITTEE MEETING SUMMARY May 8, 2024 Joe Reardon, Chair Presiding The Groundwater and Waste Management Committee (GWWMC) of the North Carolina Environmental Management Commission (EMC) addressed the following at its May 8, 2024, meeting: GWWMC Members in Attendance: Mr. Joe Reardon, Chair Mr. Tim Baumgartner, Vice-Chair Mr. Steve Keen Dr. Jaqueline MacDonald Gibson Dr. H. Kim Lyerly Mr. Bill Yarborough Ms. Yvonne Bailey Other Commissioners in Attendance: Ms. Elizabeth (Jill) Weese Ms. Marion Deerhake Mr. Chris Duggan Mr. Charles (Charlie) Carter Ms. Robin W. Smith Mr. John (JD) Solomon (EMC Chair) Others Present: Ms. Sarah Zambon, EMC Counsel I. Preliminary Matters: 1. In accordance with North Carolina General Statute § 138A-15, Chair Reardon asked if any GWWMC member knew of any known conflict of interest or appearance of conflict with respect to any item on the May 8, 2024, GWWMC agenda. None of the members stated there was a conflict. 2. Vice-Chair Baumgartner made a motion to approve the March 13, 2024, GWWMC meeting minutes. Commissioner Keen seconded the motion. The vote taken was unanimous and the minutes from the March meeting were approved. GWWMC Meeting Summary Draft Date: June 3, 2024 May 8, 2024 Approval Date: TBD Page 2 of 10 The recording of the May 8, 2024, GWWMC meeting can be accessed at this link: https://www.youtube.com/watch?v=TMUnBSzU9Lw After the approval of the meeting minutes, Chair Reardon noted the letter from Secretary Biser of DEQ, that was sent to Chair Solomon of the EMC, regarding proposed PFAS standards. Chair Reardon recognized Vice Chair Baumgartner for comments regarding the proposed amendments to 15A NCAC 02L for PFAS being an informational item versus an action item. Vice Chair Baumgartner stated the Chair and Vice-Chair of this Committee were extremely disappointed that DEQ and its leadership chose not to fully communicate with this Committee, instead choosing to grandstand when it does not get its way. DWM scheduled a meeting with the Chair and Vice Chair of this Committee to review the agenda at 3:00 p.m. on Friday, April 19, 2024. In the meeting from DWM were Director Scott and Jessica Montie, Chair Reardon, and Vice Chair Baumgartner. As we reviewed the draft agenda, it was noted by DWM that 15A NCAC 02L .0202 fiscal analysis would not be ready for review by the Committee for the May 8 meeting. The Committee Chairs agreed that without a fiscal analysis to review, the discussion of the 02L PFAS Rule could remain an information item. No one from DEQ, its staff nor leadership, engaged with either Chair Reardon or Vice Chair Baumgartner to see if there could be some path forward and a compromise for the 2L PFAS rule request to remain as an action item. DEQ chose to grandstand, issuing public statements rather than working through issues with the EMC and its Committee. The lack of respect by DEQ for this Commission’s members is evident in its lack of communication and its disregard for providing documents for EMC review in a timely manner. This Committee and Commission deserve the right to review a full package in order to make decisions to move rules through the process. The North Carolina Administrative Procedures Act (General Statute 150B) requires the development and approval of a fiscal note for rulemaking to proceed. Yet DEQ would not even share a draft of the Regulatory Impact Analysis with this Committee. Secretary Biser issued a letter on May 1, 2024 (and subsequent press release) leveraging accusations at this Committee’s Chair and Vice Chair. The Secretary stated, “staff have presented at the last three meetings on these proposed standards”. However, presentations do not mean completeness of submittal. In the November 2023 meeting minutes, for the full GWWMC Meeting Summary Draft Date: June 3, 2024 May 8, 2024 Approval Date: TBD Page 3 of 10 The recording of the May 8, 2024, GWWMC meeting can be accessed at this link: https://www.youtube.com/watch?v=TMUnBSzU9Lw Commission, the minutes state “Ms. Montie is helping coordinate the Regulatory Impact Analysis for the 02L Groundwater Standards.” If in fact, DWM was working on the fiscal note 6 months ago, where is at least a draft? During all of DEQ’s grandstanding, DEQ did not provide this Committee with a complete set of documents two weeks prior to the meeting which is the current EMC policy. In fact, documents for this Committee were not posted in full until late last Friday, May 3, 2024. Even yesterday, DWM was modifying documents for this Committee’s agenda. The fiscal analysis for 2L PFAS Rule has NOT been posted for EMC review as of today. DEQ has never provided a draft for consideration to move this Rule proposal forward. If the Department was so inclined for the 2L PFAS Rule to be heard as an action item at this meeting, why didn’t they further discuss concerns with the Committee Chair and Vice Chair. Let’s be clear, this Committee nor the EMC will be developing any standards based on costs. However, a fiscal analysis is needed in full to ensure that as these Rules go through public hearing in a manner that the public can understand and fully understand implications of the new Rule. That includes Rule application and associated cost implications for implementation. This persistent disregard for this Committee stops today. All documents for any requests before this Committee will be provided to this Committee no later than two weeks prior to the scheduled meeting date or that item will be removed from the agenda. Additionally, if there is further debate concerning items to be considered by this Committee, DEQ Leadership should engage the Chair and Vice Chair of this Committee prior to this two-week deadline. The public deserves a solid Rule making process that complies fully with APA, that is completely reviewed, and conforms with other statutes and rules. This Commission cannot do that if DEQ intends to work against us, withholding documents, and grandstanding instead of engaging. Chair Reardon stated that he is disappointed that the Secretary decided to make this a public issue without having any additional conversations with the Chair and Vice Chair of this Committee. This is disturbing and not in keeping with the character of those in a leadership position. Removal of PFAS discussion as an action item was to allow this Committee to have GWWMC Meeting Summary Draft Date: June 3, 2024 May 8, 2024 Approval Date: TBD Page 4 of 10 The recording of the May 8, 2024, GWWMC meeting can be accessed at this link: https://www.youtube.com/watch?v=TMUnBSzU9Lw all materials at one time before making a decision. Recent letters submitted to this Committee asking for more time and requesting more thorough discussion were not reviewed nor had conversations occurred with those individuals prior to this meeting. The decision to remove this from the agenda as an action item was solely based upon the need to have full packets of information for the Committee to consider. All the pieces coming out of Committee need to be provided as one package going to the full EMC. Chair Reardon and Vice Chair Baumgartner requested that all information be provided to the Committee two weeks prior to the meeting and that Chair Reardon has not received hard copies requested in a timely manner in advance of the meeting. DEQ staff can do better than this. What is entrusted to this Committee and the responsibility entrusted to the EMC deserves that we should have all the materials we need to make a good decision for the benefit of the people of this state. Chair Reardon served over the Food Safety Program for 43 years and that care for the citizens of this State did not stop by beginning to serve on this Commission. In fact, that experience is the background on how he sees things. Commissioner Yarborough offered additional comments regarding the letter submitted by DEQ. Commissioner Yarborough is totally disappointed that a Secretary would make allegations such as this. He has known Chair Reardon for over 40 years and Chair Reardon has never backed down from protecting public safety. These attacks on Chair Reardon are unfathomable. II. Action Items 1. Request Approval to Proceed to the Environmental Management Commission with the 2024 Periodic Review of 15A NCAC 02S – Rules and Criteria for the Administration of the Dry-Cleaning Solvent Cleanup Fund (DWM) Jessica Montie Jessica Montie, with the Division of Waste Management (DWM), presented a request to proceed to the EMC with the 2024 Periodic Review GWWMC Meeting Summary Draft Date: June 3, 2024 May 8, 2024 Approval Date: TBD Page 5 of 10 The recording of the May 8, 2024, GWWMC meeting can be accessed at this link: https://www.youtube.com/watch?v=TMUnBSzU9Lw of 15A NCAC 02S. - Rules and Criteria for the Administration of the Dry- Cleaning Solvent Cleanup Fund. Ms. Montie gave an overview of the periodic rule review process and the DWM rules that will be reviewed by the Committee. She discussed the rules under review and their proposed determinations and explained the rationale for designation of two of the rules as unnecessary. She also indicated that DWM had solicited stakeholder feedback on these designations and gave an outline of the expected rule review timeline. Following the presentation, Commissioner Keen asked about 1,4-dioxane and GenX, and whether 1,4-dioxane would be reviewed or considered, moving forward, with dry-cleaning solvents. Delonda Alexander, the DWM Superfund Special Remediation Branch Head, stated that the program had not been analyzing for 1,4-dioxane as it has not shown up as a constituent of concern at dry-cleaners to date. Commissioner Keen asked if waste from dry cleaner sites should be evaluated for 1,4-dioxane. Ms. Alexander stated that all waste from the clean-up of dry-cleaning solvents is handled as hazardous waste and sent to a hazardous waste facility, which is the most protective, and therefore there is no need to also evaluate the waste for hazardous waste characteristics or other chemicals. Commissioner Keen asked if 1,4-dioxane has been designated as a toxic or hazardous waste. Director Michael Scott explained, with regard to PFAS, at the time of the meeting PFAS has not been designated as a hazardous waste and could be disposed of as non-hazardous waste, but that DWM would need to follow up on the status of 1,4-dioxane. Ms. Alexander reiterated that the dry-cleaning program is not looking for any particular chemicals or particular levels of chemicals for waste characterization, they just take the most conservative approach, assume the waste containing solvent is hazardous, and handle it as hazardous waste. If 1,4-dioxane is present, it is already being disposed of as hazardous waste. GWWMC Meeting Summary Draft Date: June 3, 2024 May 8, 2024 Approval Date: TBD Page 6 of 10 The recording of the May 8, 2024, GWWMC meeting can be accessed at this link: https://www.youtube.com/watch?v=TMUnBSzU9Lw Adam Ulishney, Deputy Director with DWM, also stated that the State has groundwater and soil standards for 1,4-dioxane, and all hazardous waste permitted facilities are required to analyze for 1,4-dioxane in their groundwater monitoring networks. Commissioner Keen noted that the State is trying to identify sources of 1,4-dioxane, including any waste management facilities, and if it is not analyzed at a facility, maybe it should be for the purpose of identifying the facility as a source of 1,4- dioxane. Commissioner Bailey asked for confirmation that removing the two rules designated as unnecessary would reduce the burden on the regulated community by eliminating the need for the remedial action plan. Ms. Alexander stated that the rule is not necessary because the plan information can be requested or obtained in a risk management plan, so the rule is redundant, but yes, it could potentially also reduce the burden on the regulated community if it prevents them from having to submit another plan with the same information. Commissioner Bailey also asked for confirmation that the other rule designation of unnecessary was also because the rule was redundant, and removing the rule was not relaxing any requirements. Ms. Alexander confirmed this, and stated program participation is voluntary and it is in the best interest of the applicant to provide it, so a rule is not necessary to allow the Department to request the information. Commissioner Deerhake stated that when the EPA had originally listed dry-cleaning solvents, they may have determined at the time that 1,4- dioxane was not present in the solvent. Commissioner Keen said he wants to make sure that this is still true with the methodology and technology that is available today. Following the discussion Commissioner Bailey made a motion to approve the request to proceed to the EMC with the 2024 Periodic Review of 15A NCAC 02S – Rules and Criteria for the Administration of the Dry-Cleaning GWWMC Meeting Summary Draft Date: June 3, 2024 May 8, 2024 Approval Date: TBD Page 7 of 10 The recording of the May 8, 2024, GWWMC meeting can be accessed at this link: https://www.youtube.com/watch?v=TMUnBSzU9Lw Solvent Cleanup Fund. Commissioner Keen seconded the motion. A vote was taken and the motion passed unanimously. II. Information Items 1. Coal Ash Management Rulemaking Update (DWM) Jason Watkins Jason Watkins, Solid Waste Section Chief, provided an update on recent legislation (SL 2023-138) and the status of rulemaking for coal ash management surface impoundments and landfills. He indicated that rules would be necessary if we are attempting to obtain state program permit approval for federal requirements. He gave a status on the State’s efforts on the clean-up and excavation of impoundments and processing of residuals into beneficial product. He went over the potential steps and timeline for State permit program approval and a proposed timeline for the State rulemaking process, if needed. Following the presentation, Vice Chair Baumgartner asked if any coal- fired plants are operating now in the state. Mr. Watkins confirmed that there are still operational facilities in the State. Chair Reardon asked how many there are. Mr. Watkins indicated that he did not have that information at the time. (Note, after the meeting, Mr. Watkins provided the following information in response to the question above: Any coal ash currently being generated is required by the NC Coal Ash Management Act to be dry ash, which is disposed of in a lined sanitary landfill. The Duke Energy 2023 Carolinas Resource Plan submitted August 2023 to the NC Utilities Commission, which includes the number of operating energy plants, retirement forecasts, etc. (see the Chapter 3 Portfolio, Page 6), can be accessed at this link: https://starw1.ncuc.gov/NCUC/PSC/PSCDocumentDetailsPageNCUC.asp x?DocumentId=70c6dc5c-502d-4a62-9743-2e3bcec044cc&Class=Filing.) GWWMC Meeting Summary Draft Date: June 3, 2024 May 8, 2024 Approval Date: TBD Page 8 of 10 The recording of the May 8, 2024, GWWMC meeting can be accessed at this link: https://www.youtube.com/watch?v=TMUnBSzU9Lw 2. PFAS Groundwater Quality Standards Rulemaking Update – Rule Amendment (DWR) Bridget Shelton Bridget Shelton with the Division of Water Resources presented an overview of the proposed rule amendment to 15A NCAC 02L .0202 to add specific groundwater standards for eight PFAS. Ms. Shelton described the differences between standards for drinking water, groundwater, and surface water standards, including their purposes and how they are applied. She also explained why it is important to protect the best usage of groundwater as a source of drinking water, that groundwater quality is not regulated at the federal level, and how groundwater standards are used by DEQ for site-clean-ups, risk assessments, and health evaluations. She highlighted some of the pertinent language in the rule regarding the existing requirements, including how standards are developed and calculated. She also discussed why standards for PFAS are being proposed and gave some background on the recent EPA announcement establishing drinking water standards for six PFAS. She also gave some background on prior information items presented to the GWWMC and EMC on this topic. She provided the proposed standards for eight PFAS and the proposed rulemaking timeline. There was some discussion following the presentation, and the following questions required follow-up after the meeting (Note, the entire discussion can be accessed in the meeting recording link at the bottom of the page, beginning at timestamp 1:05:00): Chair Reardon asked what the other states are doing to regulate PFAS in groundwater. Commissioner Keen asked what the traditional testing methods are for the PQL for legacy PFAS. He also asked where the manufacturers of PFAS are, and what test method they will be using. GWWMC Meeting Summary Draft Date: June 3, 2024 May 8, 2024 Approval Date: TBD Page 9 of 10 The recording of the May 8, 2024, GWWMC meeting can be accessed at this link: https://www.youtube.com/watch?v=TMUnBSzU9Lw Commissioner Yarborough asked what the alternatives to PFAS in manufacturing are, if PFAS are no longer able to be used. 3. PFAS Groundwater Quality Standard Rulemaking Update – Regulatory Impact Analysis (DWM) Jessica Montie Jessica Montie provided an overview of the regulatory impact analysis (RIA) being prepared for the proposed rule amendment to 15A NCAC 02L .0202 to add specific groundwater standards for eight PFAS. Ms. Montie discussed the baseline for the analysis begin the existing regulations and the PQL. She noted which programs in DEQ comply with the existing requirements for groundwater quality in 15A NCAC 02L, and how the plan and timeline to address PFAS under existing rules will be used in the analysis. Ms. Montie described the cost and benefit analysis approach, and summarized the draft conclusions from the analysis, both quantitative and qualitative. She also noted that the analysis is pending approval/certification from the Office of State Budget and Management at the time of the meeting. There was some discussion following the presentation, and the following question required follow-up after the meeting (Note, the entire discussion can be accessed in the meeting recording link at the bottom of the page, beginning at timestamp 1:39:00): Commissioner Keen asked what the Department’s compliance and enforcement strategy is, and what the burden on the State is to implement PFAS groundwater and surface water quality standards. Following the discussion, Chair Reardon and Vice Chair Baumgartner emphasized the need for the Committee to be provided with all documentation necessary to take action on agenda items, including the regulatory impact analysis, in future meetings. IV. Upcoming Items GWWMC Meeting Summary Draft Date: June 3, 2024 May 8, 2024 Approval Date: TBD Page 10 of 10 The recording of the May 8, 2024, GWWMC meeting can be accessed at this link: https://www.youtube.com/watch?v=TMUnBSzU9Lw • May 9, 2024, EMC Meeting Agenda Items o Information Item – US EPA CERCLA PFAS (PFOA and PFOS) Update • Future Committee Meetings: Upcoming Agenda Items for the GWWMC expected July 2024 (subject to change) o PFAS Groundwater Quality Standards Rulemaking V. Directors’ Remarks DWM Division Director, Michael Scott, expressed his appreciation for all the diligent work done by colleagues to put together the proposed PFAS rules. He confirmed the Committee’s request regarding the fiscal note and noted that, as a state, North Carolina is moving from finding and assessing PFAS to the members of the public asking, “What level do we clean up to? What’s the target?” Mr. Scott acknowledged the importance of such questions and stated that the Division looks forward to furthering that conversation with the Committee. DWR Director Richard Rogers made no additional comments/closing remarks. VI. Closing Remarks With no further remarks, Chair Reardon adjourned the meeting.