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Senate | March 12, 2015 | Committee Room | Agriculture/Environment/Natural Resources

Full MP3 Audio File

Meeting of Agriculture and Environment to order. My boss Judy said we have enough. It’s 8:05 and we need to get everything ready to get ready to go to session. Our pages today are Erin Olmo from Holly Springs sponsored by Senator Barringer, Yvonne Lyle from Raleigh sponsored by Senator Dan Blue, Catlin Avery from Winterville sponsored by Don Davis and Marissa Bishop from Apex also sponsored by Senator Barringer. Sergeant at Arms are Larry Hancock and Dale Huff and Miss Judy is my boss. We have only one bill on the agenda today. Yeah, she bosses everybody around. It’s nice to see that today in attendance we have Coach Sydney Lowe. Coach Lowe, thank you for your red jacket, but the, I wouldn’t show that. The, I guess you’ll take up the blog from Brian Holloway. The bill that we have today is the amend environmental laws, House 157. It’s unchanged since coming over from the House and Representative Pat McElraft will present the bill. Welcome to the Senate Ag Committee. [SPEAKER CHANGES] Thank you, Mr. Chair and thank you to the Senate Ag Committee. I appreciate your indulgence this morning while we get this important bill through. If you don’t mind Mr. Chair, I’d like staff to explain the bill. [SPEAKER CHANGES] That’s fine. Okay. Jennifer then Jeffrey. [SPEAKER CHANGES] Thank you, Mr. Chairman. Members, the first part of the bill deals with the interstate mining compact which North Carolina has been a member for a number of years. The compact language currently specifies that it is the governor who is to attend all meetings of the compact commission. This would just allow the governor to appoint a designee to attend the meetings i the governor’s stead. The next part of the bill deals with recycled and recovered materials. There are a number of provisions. The first section, 2a, would exclude steel slag from the definition of solid waste if that slag was sold and distributed in the stream of commerce for consumption, use or further processing into another desired commodity and managed as an item of commercial value in controlled manners and not as a discarded material or in a manner constituting disposal. Section 2b would clarify requirements. Under current law for the term recovered materials. Under current law recovered materials are not treated as solid waste if they qualify under a few criteria. The change in this bill would add additional criteria. The first would be to provide that the materials, materials that are accumulated speculatively, and that term is defined under federal law, do not qualify as a recovered material and would be solid waste. The second modification would be to require that the recovered material must be managed as a valuable commodity in a manner consistent with the desired use or end use. In addition to specifying that 75% of the recovered material stored at a facility at the beginning of a calendar year would need to be removed from the facility at the end of the calendar year through sale or reuse. Current law requires that a majority of material on a person’s property be removed at the end of a calendar year and majority is not defined, so this would just add a 75% clear line. Excuse me. Next it would require that operations that process recovered material be conducted in a manner to ensure that the recovered material is not discharged, spilled, leaked, dumped, etc, to air, land or water or pose a threat to public safety. Next there’s a requirement that the recovered material not contain significant concentrations of foreign constituents that would render it unusable or inadequate for it send use. Section 2e would add provisions that specify construction and demolition debris and garbage diverted from the waste stream or collected as source separated material would be subject to

Permits for treatment and processing. Next, section 2D modernizes a number of definitions in the Electronic Search Cycle Act. You’ll notice that antiquated terms in electronics world such as “notebook” have been removed, and just generalized to “computers” since things have changed so much, even in the past few years, that the Electronic Search Cycling requirements have been on the books. Finally, in this part of the bill, section 2E, requires that facilities recover or recycle discarded computer equipment, televisions, or other electronics, to register with the Department of Environment and Natural Resources. [SPEAKER CHANGES] Part 3 of the bill before you begins on page six, this is Coal Ash Management Technical corrections and amendments, and as you will recall from the Coal Ash Management Act from last year, there are several different commissions responsible for implementing the act. Sections 3.1 A, B, and C, sections 3.6 and 3.7 all make clarifying changes to make it abundantly clear which commission we’re talking about in the various portions of the act, so those are clarifying changes. Sections 3.2 and 3.3 make technical corrections. Section 3.2 corrects an incorrect statutory cross-reference. Section 3.3 removes a reporting deadline for a report that was in an earlier version of the legislation from last year, but ultimately was dropped out and the reporting deadline was not removed at the same time. Section 3.4 makes a correction in the structural fill moratorium. There are two exceptions to the structural fill moratorium. One, for structural fill projects that have a lot of the same protections that are required for solid waste landfills. That language had read so that it looks like there was an alternative between two of those protections, between a caf liner and monitoring system where the intent was that actually both have to be in place. So essentially, an “or” is changed to a “and” to clarify that extra protection is required. Section 3.5 is dealing with a compliance boundary and corrective action. The language largely tracks an EMC rule on this subject that rule language had said the director or directors designate. Upon further review of that, we discovered the rules haven’t been updated in a long time and the reference to director actually wasn’t a director that existed anymore, so we changed that to the Secretary of the Department, rather than a specific director, and the Secretary can designate that authority to a specific director if the Secretary so desires. The next part, part four, on page eight, this is a large chunk of the bill, but all it’s doing is changing the name of the Ecosystem Enhancement program which is a program in Deener that deals with protection and mitigation of impacts to wetlands and streams. Just changes the name of that program to the Division of Mitigation Services. The next part is over on page 15. Part five, Energy Policy Council Amendments. On the Energy Policy Council you have several executive branch leaders on that council. The Secretary of Environment and Natural resources, Secretary of Commerce, Lieutenant Governor. This would just allow those three officers on the Energy Policy Council to designate a designee to act in their stead on the Energy Policy Council. Makes two other changes to the council, provides that a council member shall be automatically removed from the council if the member fails to attend three consecutive or successive council meetings without just cause as determined by the rest of the council, and finally, there’s some language that’s in a lot of other commissions statutes that provides the Governor has the authority to remove any council member for misfeasance, malfeasance, or nonfeasance. The last substantive part starts at the bottom of page 15, but is mainly on page 16. This is an amendment to earlier hydraulic fracturing legislation, on rulemaking by the EMC. The current law says that the EMC shall adopt rules for toxic air emissions from drilling operations. This changes it to provide that the EMC shall adopt toxic air emissions regulations for drilling operations if the commission determines that the state’s current program and any federal --

Regulation on air toxics are inadequate to protect public health, safety and welfare and the environment and except as already provided in the act, the act becomes effective when it becomes law. [SPEAKER CHANGES] Representative. [SPEAKER CHANGES] Mr. Chair I’d like to thank staff for that. They really gave a great synopsis of what this amends bill is about and I’d be happy to answer any questions from any members [??] [SPEAKER CHANGES] Questions from the committee? Senator Jackson. [SPEAKER CHANGES] This is probably a question for staff. It’s a small question about the first section regarding the slag. Section 28. My understanding is that it is not defined as solid waste currently so this is kind of a cautionary step to ensure that the existing export market that we have for slag isn’t disturbed by a future reclassification of slag as solid waste. Is that correct? [SPEAKER CHANGES] Mr. Chairman? [SPEAKER CHANGES] Yes. [SPEAKER CHANGES] I will give my answer but we also have I see the division director for the solid waste, Division of Waste Management at DNR so she can correct me if I’m wrong. There are some sludges that are exempted from the definition of solid waste under North Carolina state law. Steel slag is not mentioned specifically at all so the question would be whether they fall into that current exemption of sludges. So they’re not explicitly, they’ve not been explicity exempted in the past, but they may fall into that category and I would defer if the department has any clarifications. This is Linda Culpeper, Mr. Chair. [SPEAKER CHANGES] If you’d just turn on the mic and identify yourself for the record. [SPEAKER CHANGES] Yes, good morning. Linda Culpepper, Director of Division of Waste Management and Jennifer is correct, we have a lot of material in this category that is recycled. It is exempt under other recycling rules. This would provide that provision from the beginning that it is not considered a solid waste so it’s an additional provision for this particular waste stream. [SPEAKER CHANGES] Follow up? Senator Bryant. [SPEAKER CHANGES] Thank you, Mr. Chair. I have about three questions. [SPEAKER CHANGES] Okay. [??] [SPEAKER CHANGES] And my first one, I hate to ask one so elementary but what is slag? Maybe I’m not the only person here that don’t know what it is. [SPEAKER CHANGES] I had a sample. I wish I’d brought it in my purse. It’s actually a steel, it’s the byproduct of steel in [??] manufacturing. They have new course steel, they have that byproduct, and it actually can be used now as a commodity and sold and I had a sample of it used in gravel and I wish I’d brought it today but we’re saying now that it’s not a waste product. It needs to be used as a commodity. [SPEAKER CHANGES] Okay, thank you. Next question. [SPEAKER CHANGES] Yes. [SPEAKER CHANGES] This is in the area of the fracking air toxic emissions. I was wondering if the NEC published rules on the air toxic emissions and are we trying to preempt the rules that they published already? How do they compare with the state and federal standards that would be applying and are we strengthening? It’s really three questions in one. Are we strengthening, weakening, do we know the impact of this change? Does that? [SPEAKER CHANGES] I can give my opinion unless you want staff [??] to that. Staff, go ahead. [SPEAKER CHANGES] Mr. Chairman. [SPEAKER CHANGES] Yeah. [SPEAKER CHANGES] Senator Bryant, the original, when this was enacted the rule making directive was actually to the Environmental Management Commission and not to the Mining and Energy Commission. Neither have adopted a rule specific to air toxics for drilling operations, but it is my understanding again we have the Deputy Director for the Division of Air Quality in the back who can clarify me if I’m wrong, but that the EMC did look at this issue of air toxics for drilling operations and as advised by the Division of Air Quality found that, at the time that the existing regulatory scheme for air toxics was sufficient to handle the drilling operations so they did not feel additional rule making at that time was necessary but again I defer to the department on this specific, so what they looked at and what the EMC found. So just to be clear

Neither the EMC nor mining and energy has adopted a rule so this does not preempt anything that they’ve adopted in answer to your question. [SPEAKER CHANGES] Okay, and then, excuse me. [SPEAKER CHANGES] I’d just like to add. [SPEAKER CHANGES] Yeah. [SPEAKER CHANGES] The language in the bill still says that they shall if they don’t feel that our air toxic state and federal rules are sufficient, so there’s still a mandate in there if they don’t feel that they’re sufficient then they can adopt their own air toxic rules. [SPEAKER CHANGES] Thank you, Mr. Chair if we [??] bills on this on this. I don’t know since we only have one bill and what other comments there are, if there’s time and if there is anyone in the audience with expertise in this area from the environmental community that would like to speak or express a concern I would like to let them speak, thank you. [SPEAKER CHANGES] Yea, right, after the committee asks their questions I’ll turn it to public comment. Senator McInnis. [SPEAKER CHANGES] In the 130a-294. solid waste management program, excuse me, t, it speaks of construction and demolition, debris, diverted from the waste system or collected as source separate, separated materials, subject to a solid waste permit for transfer, treatment, processing at a permitted solid waste treatment facility, the department may adopt rules to implement this subsection. I’m always concerned when I see that the department may adopt rules when we create law, then they adopt rules that are more stringent or don’t have anything to do with it just to make things more difficult. I’d like a little further explanation on what that means as someone who is very conscious of affordable housing and the cost of construction and the cost of renovation and construction to keep our housing costs as low as possible. What does this solid waste permit, what does that entail, and when it’s diverted by the waste stream. If I’m using a 31 cubic yard dumpster and I’m collecting all the debris from a new construction home and I send it to the landfill will there be a permit and fees required for that or am I doing business in the same course as always. [SPEAKER CHANGES] Jennifer. [SPEAKER CHANGES] Senator, what this is actually trying to get at is the actual collectors and recyclers, not the generators. Already C and D waste, you know, must go to a permanent landfill or be recycled, so this is saying for those folks who collect and then send to recycling they need a solid waste permit. [SPEAKER CHANGES] Follow up, so the generator doesn’t have a dog in this fight. Is that what we’re saying? [SPEAKER CHANGES] Right, it is just the collector and recycler. [SPEAKER CHANGES] Thank you, Mr. Chairman. [SPEAKER CHANGES] Thank you Senator McInnis. Any other questions from the, I’m sorry, Senator Tucker. [SPEAKER CHANGES] Just one quick question. I’m not sure if Representative McElraft can do this or not, but on this EMC when we start allowing commissions like this to evade the rule making process everybody gets nervous. Are we just talking about drilling and the air toxins from drilling specifically and everything else falls under the already rule making process? Is that what I’m reading here. [SPEAKER CHANGES] Mr. Chairman? [SPEAKER CHANGES] Jennifer. [SPEAKER CHANGES] Yes, This language that’s being amended was very targeted for air toxics drilling operations, but of course they’re still governed by all the requirements for rule making, so if they implement something that require folks, drilling or otherwise, to adhere to requirements they’re gonna have to go through rule making and this change as we understand it mirrors general rule making given to air quality for toxic air emissions, so it authorizes the department when it finds that a regulatory scheme is insufficient to adopt rules and they do have to adopt rules if they are going to require folks to comply with them. [SPEAKER CHANGES] Any other questions? Senator Rabin. [SPEAKER CHANGES] Less a question than a request for staff. Could you send me a list sometime of all the boards and commissions and stuff that we have running things and probably running around in circles in some cases. I just would kinda like to know what that is. Thank you. [SPEAKER CHANGES] Throughout the entire state Senator Rabin? Throughout the entire state or just in? [SPEAKER CHANGES] In the state, not just with the

But I mean, you know, I just see in my mind a large number of these and there can’t help but be some overlap and there might be efficiencies in there that we could work on if we had a handle on what the total number is and what they do. [SPEAKER CHANGES] Okay. Senator Jackson. [SPEAKER CHANGES] Thank you, Mr. Chairman. [SPEAKER CHANGES] Thank you, Mr. Chairman. Representative McElraft we appreciate you being here this morning. I know it was an effort for you to be here at this early hour being I’ve worked with you before on NER. I appreciate you and Representative Catlin bringing all this up and getting these technical corrections in place and Mr. Chairman at the appropriate time I’d make a motion for a favorable report. [SPEAKER CHANGES] Well I was gonna not accept that from you I was gonna accept that from Senator Wade but since you beat her to the punch I’ll allow that to happen. [SPEAKER CHANGES] Sug, you mean Sug don’t you. [SPEAKER CHANGES] This is broadcast through the internet and divorce attorneys across the area so you better watch out. Any other questions before the committee? If not I’ll open it up for public comments. If anyone from the public wants to comment please approach the podium in the back and please identify yourself for the record. Nope. [SPEAKER CHANGES] Okay. Should I? No? Good morning. Cassie Gavin with the North Carolina Chapter of Sierra Club. I’m the Director of Government Relations and I just had a quick comment on the fracking provision in this bill. Thank you for the opportunity to speak and we all know that next week Tuesday marks the end of a long process that the Mining Commission developed rules for and now finally on Tuesday it looks like it’s the time when fracking permits can finally be applied for. I understand that the Mining Commission is right now researching rules having to do air toxics and they’re looking at whether Additional rules will be necessary so our concern is what is the rush to eliminate a requirement for the EMC to look at those rules at a time when the MEC is looking at the same thing. So I understand that our rules combined with the federal rules are not necessarily adequate and there’s gaps that still need to be filled so we would like the EMC to still have the requirement to go ahead and look at the MEC’s recommendations in the future. That’s all. Thank you. [SPEAKER CHANGES] Thank you. Anyone else from the public would like to speak? Okay. [SPEAKER CHANGES] May I just comment real quickly on that? [SPEAKER CHANGES] Yes. [SPEAKER CHANGES] I’d like to say that there is still a mandate for them to look at the air toxics. We are not alleviating that mandate at all, we’re just saying that if they find out through research, and they’ve been researching this for 2-3 years already, the department has, the EMC has, they’ve looked at other states, what they’re doing, that have been in this business for 40-50 years, so it’s not like we are saying don’t do air toxic rules. We’re saying we already have strong air toxic rules, federal and state. Let’s see if those are sufficient. If they’re not, we can tweak them and make a rule. So we’re not taking away any environmental pressure on making these air toxic rules. Thank you. [SPEAKER CHANGES] Any further questions or comments? Senator Jackson made a motion that we give House Bill 157 a favorable report. All those in favor will say aye. [SPEAKER CHANGES] Aye. [SPEAKER CHANGES] Opposed no. The ayes have it. Thank you. [SPEAKER CHANGES] [??] the committee. I hope you [??] [SPEAKER CHANGES] Thank you very much. We’re dismissed.