A BILL TO BE ENTITLED
AN ACT (1) to clarify and expand the requirements for the permitting of combustion products landfills and structural fill facilities in order to adequately protect the public health and the environment; (2) to authorize the Department of environment and natural resources to charge and collect fees from operators of combustion products landfills and structural fill facilities; (3) to direct the Department of Environment and Natural Resources to require monitoring and corrective action for existing combustion products surface impoundments, prohibit the construction of new coal combustion products surface impoundments, and provide for the phasing out of existing combustion products surface impoundments; and (4) to Remove the exemption from the dam safety act for existing combustion products surface impoundments.
The General Assembly of North Carolina enacts:
SECTION 1.  G.S. 130A‑290(a)(2b) reads as rewritten:
"(2b)	"Combustion products" means the solid and liquid waste generated by the burning of coal and the solid and liquid waste that is generated through the process of controlling the emissions that result from the burning of coal. "Combustion products" includes the residuals, including fly ash, bottom ash, boiler slag, scrubber sludge, mill rejects, and flue gas desulfurization residue produced by a coal‑fired generating unit or produced by any other burning of coal for commercial purposes. "Combustion products" also includes waste from fluidized bed combustion and any other waste that is uniquely associated with the burning of coal, often by being mixed with the ash, slag, or sludge."
SECTION 2.  G.S. 130A‑290(a)(2c) reads as rewritten:
"(2c)	"Combustion products landfill" means a facility or unit for the disposal of combustion products. "Combustion products landfill" does not include a combustion products surface impoundment."
SECTION 3.  G.S. 130A‑290(a) is amended by adding a new subdivision to read:
"(2d)	"Combustion products surface impoundment" means a topographic depression, excavation, or diked area that is primarily formed from earthen materials, that is either lined or unlined, and that is designed to hold accumulated combustion products in the form of liquid wastes, wastes containing free liquids, or sludges, and that is not backfilled or otherwise covered during periods of deposition. "Combustion products surface impoundment" includes an impoundment that is dry due to the deposited liquid having evaporated, volatilized, or leached. "Combustion products surface impoundment" includes an impoundment that is wet with exposed liquid. "Combustion products surface impoundment" includes lagoons, ponds, aeration pits, settling ponds, tailings ponds, and sludge pits, when these structures are designed to hold accumulated combustion products. "Combustion products surface impoundment" includes a combustion products surface impoundment that has been covered with soil after the final deposition of combustion products at the impoundment."
SECTION 4.  G.S. 130A‑295.4 reads as rewritten:
"§ 130A‑295.4.  Combustion products landfills.
(a)	The definitions set out in G.S. 130A‑290(a) apply to this section.
(b)	The Department may permit a combustion products landfill to be constructed or expanded, provided the permit includes all of the following conditions:
(1)	No waste disposal unit of the landfill shall be constructed or expanded within any of the following:
a.	A 100‑year floodplain or land removed from a 100‑year floodplain designation pursuant to 44 Code of Federal Regulations Part 72 (1 October 2006 Edition) as a result of man‑made alterations within the floodplain such as the placement of fill, except as authorized by variance granted under G.S. 143‑215.54A(b). This subdivision does not apply to land removed from a 100‑year floodplain designation (i) as a result of floodplain map corrections or updates not resulting from man‑made alterations of the affected areas within the floodplain, or (ii) pursuant to 44 Code of Federal Regulations Part 70 (1 October 2006 Edition) by a letter of map amendment.
b.	A wetland, fault area, seismic impact zone, unstable area, or karst terrain.
(2)	No waste disposal unit of the landfill shall be constructed or expanded beneath the seasonal high groundwater table.
(3)	Each waste disposal unit of the landfill shall be constructed or expanded with a bottom liner system that provides for dual liners and that satisfies the additional requirements under subsection (b1) of this section.
(4)	Each waste disposal unit of the landfill shall have a cap or cover that is designed to minimize air pollutants and leaching and to protect surface waters. 
(5)	Each disposal unit of the landfill shall be constructed or expanded to have at least one upgradient well and at least three downgradient wells to provide groundwater monitoring in accordance with subdivision (5) of this subsection.
(6)	Each disposal unit of the landfill shall be consistently monitored for groundwater contamination, and this monitoring shall include comprehensive testing for constituents of combustion products.
(7)	Each permit shall be subject to the environmental compliance provisions of 130A-295.3 and the siting requirements for sanitary landfills under G.S. 130A-295.6(b) through G.S. 130A-295.6(d).
(8)	Each permit shall include a response plan that satisfies the additional requirements under subsection (c) of this section.
(9)	Each applicant for a permit shall satisfy the financial responsibility requirements of G.S. 130A‑295.2 and shall also show the financial ability to clean up any pollution that results from the placement of combustion products into the environment.
(b1)	The bottom liner system of a combustion products landfill shall consist of three components in accordance with this section. Of the required three components, the upper two components shall consist of two separate flexible membrane liners, with a leak detection system and a fluid landfill waste collection and removal system between the two liners. The third component shall consist of a minimum of two feet of soil underneath the bottom of those liners, with the soil having a maximum permeability of 1 x 10‑7 centimeters per second. The flexible membrane liners shall have a minimum thickness of thirty one‑thousandths of an inch (0.030"), except that liners consisting of high‑density polyethylene shall be at least sixty one‑thousandths of an inch (0.060") thick. The lower flexible membrane liner shall be installed in direct and uniform contact with the compacted soil layer. The Department may approve an alternative to the soil component of the composite liner system if the Department finds, based on modeling, that the alternative liner system will provide an equivalent or greater degree of impermeability.
(c)	An applicant for a permit for a combustion products landfill shall develop and provide to the Department a response plan, which shall describe the circumstances under which corrective measures are to be taken at the landfill in the event of exceedances of permitted levels of coal combustion products constituents based on monitoring well data or the detection of leaks in the leak detection system between the upper two liner components at amounts exceeding an amount specified in the response plan (as expressed in average gallons per day per acre of landfill, defined as an Action Leakage Rate). The response plan shall also describe the remedial actions that the landfill is required to undertake in response to detection of leakage in amounts in excess of the Action Leakage Rate. Remedial action under this subsection is not complete until water quality standards at the monitoring wells have been restored and maintained for at least three consecutive years. The Department shall review the response plan as a part of the permit application for the landfill. Compliance with performance of the landfill to prevent releases of waste to the environment shall be determined based on leakage rate and monitoring well data.
(d)	The Department may charge and collect fees from operators of combustion products landfills permitted under this section. All fees collected under this section shall be credited to the Solid Waste Management Account and shall be used to support the solid waste management program established pursuant to G.S. 130A‑294.
(e)	Beginning January 1, 2010, no person shall construct a combustion products surface impoundment.
(f)	For the purpose of protecting human health and the environment, the Department shall require monitoring and corrective action for combustion products landfills and combustion products surface impoundments that were constructed before January 1, 2010. The Department shall develop a program for the phasing out of combustion products surface impoundments that were constructed before January 1, 2010.
(g)	Any provision of this section or any rules adopted pursuant to this section are subject to any provision of federal law or regulation that is more restrictive."
SECTION 5.  Part 2 of Article 9 of Chapter 130A of the General Statutes is amended by adding the following new section to read:
"§ 130A‑295.3A.  Structural fill facilities; beneficial end uses of combustion products.
(a)	The definitions set out in G.S. 130A‑290(a) apply to this section. In addition, as used in this section, the following definitions apply:
(1)	"Beneficial end use" means projects promoting public health and environmental protection, offering equivalent success relative to other alternatives, and preserving natural resources. Beneficial end use of combustion products means the procedure whereby combustion products are directly used either:
a.	As an ingredient in an industrial process to make a product, unless distinct components of the combustion products are recovered as separate end products.
b.	In a function or application as an effective substitute for a commercial product or natural resource.
(2)	"Structural fill" means an engineered fill with a projected beneficial end use that is constructed using products that are properly placed and compacted.
(b)	The Department shall develop a permit system governing the establishment, operation, and closure of structural fill facilities. The permit shall also address the siting, design, construction, and recordation of structural fill facilities. The permit shall be subject to the environmental compliance provisions of G.S. 130A-295.3 and the siting requirement for sanitary landfills under G.S. 130A-295.6(b) through G.S. 130A-295.6(d). The permit shall require monitoring, including monitoring of leachate for any heavy metals that could be present in coal ash. The permit shall require corrective action for any environmental damage associated with the facility.
(c)	The Department may charge and collect fees from operators of structural fill facilities permitted under subsection (b) of this section. All fees collected under this section shall be credited to the Solid Waste Management Account and shall be used to support the solid waste management program established pursuant to G.S. 130A‑294.
(d)	The Department may permit the beneficial end use of combustion products. Permitted uses shall be only those uses that are considered safe by conservative engineering and water quality protection standards.
(e)	The Department may adopt rules to implement this section.
(f)	Any provision of this section or any rules adopted pursuant to this section are subject to any provision of federal law or regulation that is more restrictive."
SECTION 6.  G.S. 143‑215.25A(a) reads as rewritten:
"(a)	Except as otherwise provided in this Part, this Part does not apply to any dam:
(1)	Constructed by the United States Army Corps of Engineers, the Tennessee Valley Authority, or another agency of the United States government, when the agency designed or approved plans for the dam and supervised its construction.
(2)	Constructed with financial assistance from the United States Soil Conservation Service, when that agency designed or approved plans for the dam and supervised its construction.
(3)	Licensed by the Federal Energy Regulatory Commission, or for which a license application is pending with the Federal Energy Regulatory Commission.
	
(5)	Under a single private ownership that provides protection only to land or other property under the same ownership and that does not pose a threat to human life or property below the dam.
(6)	That is less than 15 feet in height or that has an impoundment capacity of less than 10 acre‑feet, unless the Department determines that failure of the dam could result in loss of human life or significant damage to property below the dam."
SECTION 7.  The duty of regulating combustion products surface impoundments, as defined in G.S. 130A‑290, as amended by Section 3 of this act, shall be transferred from the North Carolina Utilities Commission to the Department of Environment and Natural Resources, Division of Waste Management.
SECTION 8.  This act becomes effective January 1, 2010.