Attach. 4, Memo Regarding CAMA reqs

Memorandum Regarding LAMA Requirements
I. Introduction
The purpose of this document is (1) to establish Duke Energy's compliance with the groundwater
assessment and corrective action requirements of the North Carolina Coal Ash Management Act
("CAMA"), and (2) to identify information relevant to the Department's assessment and prioritization of
coal ash surface impoundments for closure under CAMA. As explained further below, Duke Energy has
submitted all groundwater information required by CAMA to date and will continue to submit information
required by the Department pursuant to CAMA authority. As a result, there is no basis for any finding by
the Department that Duke Energy has failed to comply with CAMA. Further, the information submitted by
Duke Energy, supplemented by other available, relevant information, is sufficient for the Department to
make an evidence -based assessment of the factors that CAMA requires for impoundment prioritization;
as a result, it would be legal error for the Department to prioritize the surface impoundments without full
consideration of, and findings of fact on, each of the factors.
II. Compliance with Groundwater Assessment and Corrective Action
CAMA's groundwater assessment and corrective action provisions are located at North Carolina
General Statutes § 130A-309.211. Duke Energy has complied with subsections (a) and (b) as follows:
A. Subsection (a) - Groundwater Assessment
Subsection (a) requires Duke Energy to, at each of its surface impoundments, do three things:
(1) submit a proposed Groundwater Assessment Plan for approval by the Department, (2) begin
implementing a Groundwater Assessment Plan approved by the Department, and (3) submit a
Groundwater Assessment Report describing all exceedances of groundwater quality standards
associated with the impoundment. Duke Energy has met each of these requirements.
As you are aware, Duke Energy submitted draft Groundwater Assessment Plans for all of its
surface impoundments in North Carolina on September 26, 2014. The Department provided comments
on November 5, 2014, and Duke Energy submitted revised Groundwater Assessment Plans on
December 30, 2014. The Department conditionally approved the Plans on various dates earlier this year,
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and Duke Energy began implementing each plan within 10 days of approval. Groundwater Assessment
Reports describing all exceedances of groundwater quality standards associated with the various surface
impoundments were submitted to the Department -in August and September. The Department's approval
of the plans reflected a determination that the {dans met CAMA requirements. Duke Energy's
implementation of the plans, including the conditions of approval, under the Department's close oversight,
further supports a conclusion that the requirements of Subsection (a) were met.
According to the plain language of Subsection (a), Duke Energy's compliance with the
requirements does not depend on the substantive content of the Groundwater Assessment Reports.
Duke Energy was required to make plans to assess various groundwater factors, which it did. The
Department approved the plans, thereby determining that the Plans would assess those groundwater
factors. Duke Energy diligently implemented the Plans. There is no further requirement in Subsection
(a), or anywhere else in CAMA, that the results of the groundwater assessments definitively establish or
disprove the existence of any condition at a site. In fact, CAMA anticipates that groundwater
assessments performed under Subsection (a) may not supply all the information desired by the
Department—Subsection (b)(a) requires Duke Energy to include in a proposed Groundwater Corrective
Action Plan °[ajny other information related to groundwater assessment required by the Department."
Had the General Assembly anticipated that Groundwater Assessment Reports would be definitive
documents, there would have been no need to authorize the Department to request additional information
in the proposed Corrective Action Plans.
B. Subsection (b) - Corrective Action
Similarly, Subsection (b) requires Duke Energy to do two things: (1) submit a proposed
Groundwater Corrective Action Plan, and (2) begin implementing the Groundwater Corrective Action Plan
once it has been approved by the Department. The deadline for completion of the first requirement has
not yet passed. The Department and Duke Energy agreed that the corrective action plans would be
submitted in two parts, and Duke Energy has submitted the first part for all fourteen sites with surface
impoundments. The deadline for submission of the second part has not yet arrived.
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The Corrective Action Plans contain each of the elements from Subsection (b)(1) that were to be
included in the first part submittals. The Corrective Action Pians were prepared by qualified professionals
and contain work performed to the industry standard. Additional information will be submitted in the part
two submittals. It is premature to evaluate Duke Energy's compliance with this requirement until the
submittals are complete.
III. Prioritization of Surface impoundments
Under CAMA, the Department is charged with developing proposed classifications of
surface impoundments according to the procedures in North Carolina General Statutes § 130A-309.213.
The prioritization must be based on "a site's risks to public health, safety, and welfare; the environment;
and natural resources." N.C. Gen. Stat. § 130A -309.213(a). In assessing the risks, the Department must
evaluate groundwater data submitted under § 130A-309.211, discharge information submitted under §
130A-309.212, and any other information deemed relevant. Further, the Department must consider all of
the following:
oo Any hazards to public health, safety, or welfare resulting from the impoundment.
oo The structural condition and hazard potential of the impoundment.
oo The proximity of surface waters to the impoundment and whether any surface waters are
contaminated or threatened by contamination as a result of the impoundment.
ao Information concerning the horizontal and vertical extent of soil and groundwater
contamination for all contaminants confirmed to be present in groundwater in exceedance
of groundwater quality standards and all significant factors affecting contaminant
transport.
0o The location and nature of all receptors and significant exposure pathways.
ao The geological and hydrogeological features influencing the movement and chemical and
physical character of the contaminants.
co The amount and characteristics of coal combustion residuals in the impoundment.
as Whether the impoundment is located within an area subject to a 100 -year flood.
ao Any other factor the Department deems relevant to establishment of risk.
The Department must issue written declarations, including findings of fact, documenting a
proposed risk classification.
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This section requires the Department to make decisions based on the available evidence
regarding each of the listed factors.' It would not be consistent with this requirement for the Department
to make a classification decision based solely on one factor and disregard valid information about the
others. Further, the section anticipates that the Department will make decisions before complete
information about a site is available. For example, it does not require the Department to completely know
the vertical and horizontal extent of soil and groundwater contamination for each site; rather it requires
that the Department consider information concerning the vertical and horizontal extent. Similarly, it does
not require the Department to know all factors that might conceivably affect contaminant transport or all
conceivable exposure pathways; it requires the consideration only of significant factors affecting
contaminant transport and significant exposure pathways.
Additional support for this conclusion is found in the fact that this section defines an iterative
process by which evolving data, review, and commentary are used to classify surface impoundments as
low, intermediate, or high risk. This iterative process begins with a provisionally proposed classification by
the Department by December 31, 2015 and extends for a minimum (no maximum) of six months while
feedback and additional data are received and evaluated by the Department and the Coal Ash
Management Commission.
Taken as a whole, this section requires the Department to make evidence -based decisions using
the best available information in the record. Duke Energy has submitted substantial evidence into the
administrative record. Any classification should be based on this evidence, with the understanding that
additional information requests may be relevant to the degree of certainty in the classification but do not
undermine the validity of the classification.
IV. Conclusion
The Groundwater Assessment Plans, Groundwater Assessment Reports, and Groundwater
Corrective Action Plans submitted by Duke Energy to the Department meet the requirements of CAMA
and provide vast data, analysis, and findings. Chief among the findings is a determination by licensed
' Aside from CAMA, the North Carolina Administrative Procedure Act requires that agency decisions be
supported "by substantial evidence ... in view of the entire record as submitted." G.S. 150B -51(b)(5).
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environmental geologists that none of the sites pose an imminent hazard to human health or the
environment.
Duke Energy is committed to meeting the Department's expectations by providing additional data,
fully leveraging the time provided by CAMA's iterative process to ensure final classifications reflect the
best science and engineering. Nonetheless, Duke Energy has compiled with all of CAMA's requirements
to date, and available information is sufficient for the Department to develop classifications as required by
CAMA.
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