February 7, 2018 GWWM Committee


512 N. Salisbury Street
Archdale Building-Ground Floor Hearing Room

February 7, 2018
10:00 a.m. - 12:00 Noon

Bill Puette, Chairman, Presiding

In the event the previously scheduled committee adjourns prior to the estimated adjournment time, the other committee meeting may be called to order by the Chairman fifteen minutes after the previous meeting adjourned.

I.      Preliminary Matters

1.      Call to Order and Notice of NCGS §138A-15 (Chairman Puette)

General Statute §138A-15 mandates that the Chairman inquires as to whether any member knows of any known conflict of interest or appearance of conflict with respect to matters before the Environmental Management Commission’s Groundwater and Waste Management Committee. If any member knows of a conflict of interest or appearance of conflict, please so state at this time.

(Counsel Phillip Reynolds)

II. Action Item:

1. Petition for Rulemaking to Amend 15A NCAC 13A .0102(b) for the Definition of "Operator" 
(AG) Counsel Hill Davis  

Explanation:  On December 5, 2017, the Division of Waste Management received a petition for rulemaking from Sean M. Sullivan, Attorney with Troutman Sanders LLP on behalf of one petitioner, WASCO LLC.  The petition specifically addressed the definition for "operator" and requested amendment of 15A NCAC 13A .0102(b) to add the term "operator" to the list of terms whose definitions are not incorporated by reference from the federal regulations at 40 C.F.R. 260.10.  In the petition, WASCO stated the term "operator" is defined in N.C.G.S. 130A-290(a)(21) and this definition is the one that should be used by the North Carolina Division of Waste Management.   After review by the EMC Chairman, DWM staff, and EMC counsel in accordance with the criteria outlined in 15A NCAC 02I .0501, Form and Contents of Petition, the petition for rulemaking was deemed to be complete and was referred to the Groundwater & Waste Management Committee (GWWMC) for review in accordance with 15A NCAC 02I .0502, Review by a Committee of the Commission.  15A NCAC 02I .0502 requires the GWWMC to review the petition and recommend action to the full Environmental Management Commission (EMC).   A notice was sent to interested parties and the Secretary of State that a special called GWWMC meeting has been scheduled for Wednesday, February 7, 2018 at 10:00 a.m.  Notice of the special GWWMC meeting date has been provided to the petitioners, and they have been afforded the opportunity to present their petition in person before the GWWMC.  Notice of the meeting and a copy of the agenda has also been provided to those individuals on the DWM, Hazardous Waste Section interested parties list. In accordance with 15A NCAC 02I .0502, interested parties may request the opportunity to make an oral presentation on the subject petition for rulemaking.  The GWWMC Chairman ultimately decides who will be allowed to speak before the GWWMC on the petition and may decide to only allow one presenter to provide an opposing viewpoint to the rulemaking activities proposed in the Petition.  All interested parties wishing to speak at the February GWWMC meeting should submit an official request to Michael E. Scott, DWM Director, at Michael.Scott@ncdenr.gov by 12:00 p.m. on January 29, 2018. Requests can also be submitted by mail to 1646 Mail Service Center, 217 W. Jones Street, Suite 4000, Raleigh, NC 27609-1646, but must be received by 12:00 p.m. on January 29, 2018.  Each request shall:

(1) state the interest of the person;
(2) state the person's position on the petition for rulemaking; and
(3) be accompanied by supporting materials.

(Sean Sullivan)


Attachment A:  Wasco Petition for Rulemaking

Attachment B:  Exhibits for WASCO LLC Rulemaking Petition

Exhibit 1 - Superior Court Hearing (Petition for Judicial Review) Transcript (Oct. 12, 2015) (excerpted) (pages B-1 through B-5)

Exhibit 2 - Winston Mills’ original Part A Permit Application (Oct. 1990), Request to Re-Issue EPA ID Number (Oct. 1990) (had been terminated in 1985), and January 1995 Amended Part A Application (pages B-6 through B-36)

Exhibit 3 - NC DEQ Response to Public Records Request No. 2016-10-05 (Nov. 8, 2016) (pages B-37 through B-41)

Exhibit 4 - Purported 1999 Amendment to Winston Mills’ Part A Permit Application (pages B-42 through B-50)

Exhibit 5 - U.S. EPA Response to FOIA Online No. EPA-HQ-2017-003409 (pages B-51 through B-75)

Exhibit 6 - Examples of documents that refer to Anvil Knitwear operating the Facility (pages B-76 through B-81)

Exhibit 7 - Anvil Knitwear–Dyna-Diggr Purchase Agreement (2007) (excerpted) (pages B-82 through B-98)

Exhibit 8 - Dyna-Diggr Documents (pages B-99 through B-178)

Exhibit 9 - August 2013 Directive (pages B-179 through B-194)

Exhibit 10 - Department’s Brief in Support of Summary Judgment Motion (Sept. 2014) (excerpted) (pages B-195 through B-207)

Exhibit 11- Email to NC DEQ GC and HWS Inspector (Sept. 19, 2017) (copy of attachment to letter dated 27 Sept. 2017) (pages B-208 through B-217)

Exhibit 12 - Letter from Section (Jan. 6, 2010) (pages B-218 through B-221)

Exhibit 13 - Email to NC DEQ General Counsel (“GC”) (Aug. 16, 2017), with excerpted attachments (pages B-222 through B-243)

Exhibit 14:  Letter to NC DEQ GC (May 4, 2017) (excerpted) (pages B-244 through B-254)

Exhibit 15 - Sworn Affidavit, Hazardous Waste Section Chief (pages B-255 through B-259)

Exhibit 16 - Current U.S. EPA records related to the Facility (pages B-260 through B-310)

Exhibit 17 - Biederman Memos (2012) (pages B-311 through B-338)

Exhibit 18 - Dyna-Diggr Letter to Department (July 17, 2013), Rejects Post-Closure Order (pages B-339 through B-344)

Exhibit 19 - Summary Comparison, terms defined under 130A-290 and 40 CFR 260.10, compared to 15A NCAC 13A.0102 (pages B-345 through B-381)

Exhibit 20 - Department’s Admissions that it has no evidence that WASCO meets the required elements of the definition of “operator” under G.S. 130A-290(a)(21) or 40 CFR 260.10  (pages B-382 through B-414)

Exhibit 21 - Department’s Brief in Opp’n to WASCO’s Rule 56(f) Motion for Continuance (Oct. 22, 2014) (excerpted) (pages B-415 through B-421)

Exhibit 22 - ALJ Decision (Jan. 2015) (excerpted) (pages B-422 through B-428)

Exhibit 23 - Department’s Brief in Response to WASCO Petition for Judicial Review (excerpted) (pages B-429 through B-446)

Exhibit 24 - Superior Court Opinion (Petition for Judicial Review) (Oct. 23, 2015) (excerpted) (pages B-447 through B-459)

Exhibit 25 - Department’s Brief to N.C. Court of Appeals (July 12, 2016) (excerpted) (pages B-460 through B-472)

Exhibit 26 - Appellate Court Hearing Transcript (October 6, 2016) (pages B-473 through B-516)

Exhibit 27 - Post-2014 Documents, Section Asserting Operator Determinations Other than 130A-290 (pages B-517 through B-558)

Exhibit 28 - Section’s Letters re Five-Year Reviews of Post-Closure Orders (2016–2017) (pages B-559 through B-634)

Exhibit 29 - Examples of Section Operator Determinations Based on 130A-290 (2013–2014) (pages B-635 through B-687)

Exhibit 30 - Documents, NC DEQ Proposed Modification to Post-Closure Order, NCD 057 451 270 (2017) (pages B-688 through B-749)

Exhibit 31 - Revisions of Rule 13A.0102 (pages B-750 through B-761)

Exhibit 32 - Certified Copy of 15A N.C.A.C. 13A (pages B-762 through B-788)

Exhibit 33 - N.C. Sess. Laws 1989, c. 784 (excerpted) (added “operator” definition to G.S. 130A-290) and N.C. Sess. Laws 2007-107, §2.1(a) (pages B-789 through B-805)

Exhibit 34 - N.C.G.S. § 130A-294; 55 N.C. Atty. Gen. 73 (N.C.A.G.) (references 130A-294(c)); and N.C. Atty. Gen. Advisory Op., 1996 WL 925101 (Issued to then Senator Roy A. Cooper III) (pages B-806 through B-818)

Exhibit 35 - Email to DEQ General Counsel, dated 05 May 2017 (pages B-819 through B-826)

Exhibit 36 - Section & NC DOJ Communications Asserting Providing RCRA Financial Assurance on Behalf of an Entity Can Cause Another Entity to Become an “Operator” under the State’s Hazardous Waste Management Program (pages B-827 through B-869)

Exhibit 37 - Open Public Records Requests Related to Winston Mills’ Post-Closure Financial Assurance (Dec. 2016 and Jan. 2017) (pages B-870 through B-898)

Attachment C:  WASCO Figures

Figure 1 - Graphic NC HWS Operator Determinations (2009-2017) (pages C-1 through C-2)
Figure 2 - Graphic Summary, State HW Program, Enabling Statute Overview (Article 9, Chapter 130A); Use and Definition of “Operator” (C-1 through C-2)
Figure 3 - Graphic Summary, Attachment to Letter to N.C. DEQ General Counsel Section Actions re Facility (2010–2014) (C-1 through C-2)

Attachment D:  Table 1 - DEQ’s Changing Allegations (2010–2017) (showing date and asserted basis for “operator”) (pages D-1 through D-2)

Attachment ENCDEQ Recommendation and Exhibits

III.    Closing

Closing Remarks ………………………………………………………………….......................................................................................................Chairman Puette

Adjournment 2-07-18