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House | May 24, 2016 | Chamber | House Rules

Full MP3 Audio File

[BLANK_AUDIO] Members, only for the record. [BLANK_AUDIO] The House Committee on Rules,Calendar and Operations of the House is in order. The Chair appreciates the help of the Sergeant-at-Arms David Leighton, Joe Austin, Randy Wall and Will Crocker. If the Sergeant-at-Arms could raise the volume. [BLANK_AUDIO] Representative Torbett, is this? [BLANK_AUDIO] Ladies and gentlemen, is this better? The Chair apologizes and appreciates everyone's patience. The House Committee on Rules, Calendar and Operations of the House is in order. Members, we're going to first begin with House Joint Resolution 1141, a joint resolution honoring our service members during the observance of Memorial Day. Representative Blust, does the gentleman wish to speak on this resolution in committee? >> I think it's self-explanatory, Mr. Chairman. I would just move it to favorable. >> Representative Blust has moved, that House Joint Resolution 1141 be given a favorable report. Is there further discussion or debate on the gentleman's motion? Seeing none, those favoring the motion, to give House Joint Resolution 1141 a favorable report will signify by saying aye, >> Aye. >> Those opposed will signify by saying, no. In the opinion of the Chair, the Ayes have it and the motion carries. Senate Bill 71, Committee Appointment Modifications. Members, for your planning purposes, it's the Chair's intent to recognize Representative McGrady to explain the bill. The Chair has also received a request from Secretary Donald van der Vaart, and also Mr. Bob Stephens, the counsel for the governor, who also wished to speak on this, then we will move into committee discussion on this bill. So Representative Daughtry moves, that the Committee Substitute for Senate Bill 71 be before the committee. Seeing no objection, it's so ordered. Representative McGrady, you're recognized to explain the proposed Committee Substitute for Senate Bill 71, which is properly before the committee. >> Thank you, Mr. Chairman. Unlike the bill you just took up, this bill is not self-explanatory. This bill is one that is intended to amend the previously passed Coal Ash Management Act, specifically to address the issue of water. Or alternative water supplies for residents in areas surrounding coal ash ponds, and then to really address the issues in and around the case McCrory versus Berger. I'm not much of a lawyer anymore, but basically the case was one in which the governor brought a lawsuit to determine the constitutionality of the Coal Ash Management Commission, and specifically the issue was the appointments

to that commission. The appointments in the original act put six of the appointments with the General Assembly, three in the House and three in the Senate, and three with the governor. And my read of that case is that it turns primarily on the appointments issue, and that in this bill we are trying to address McCrory verses Berger by re-constituting the Coal Ash Commission in a way that is consistent with McCrory versus Berger. I will take you quickly through the bill, but I'm then I'm gonna turn to staff, with the Chair's agreement, to make sure I haven't missed anything new and important here. What's different about this bill than many bills you see is pages 1, 2, 3 going to all the way down to page 4, is all of these whereas clauses. And the whereas clauses are really I guess, a recognition that we've already had a lawsuit on this, and that we have a potential for a lawsuit again. And rather than the court having to try to figure out what it is we intended, we're in these whereas clauses stating what it is we intend, and restating the history here. So that is really what that is about. Then beginning on page 4 line 15 Section 1a, is the provision that would provide water through pipes, as opposed to in plastic bottles or jugs, to a group of people that live in and around coal ash basins, and that is a significant change here. It is going to be paid for by Duke. In the process that Duke is already putting some amount of funds in to pay for this whole process of regulating coal ash. Beginning on the bottom of that page though, then we turn to sort of reconstituting the Coal Ash Commission, and I wanna make sure you understand that the original lawsuit actually had to do with more than just the Coal Ash Commission. There were three commissions at issue here, and so this bill actually deals with three commissions. Although for various reasons, including the high profile nature of coal ash right now, the coal ash piece is the one that has gotten the attention. And so beginning on page 4 line 40, you'll see the appointments have been changed. Bottom line is the Coal Ash Commission is reconstituted. There are five members appointed by the governor, and two members appointed by, one by the House and one by the Senate. We have stricken some language just to make sure that there's no question about that the governor has supervision. This Coal Ash Commission is put with the Department of Public Safety, but - >> The gentleman will suspend. >> Members, and ladies and gentlemen of the public, the Chair apologizes. We're going to stand at ease only for a moment, while the Sergeant- at-Arms verify that this is being recorded. If it is not, the Committee on Rules will be relocating to room 1027. >> It's recording now. [BLANK_AUDIO] >> Members, the Chair has been advised that some of Representative McGrady's remarks may not have been recorded, but the Chair is going to deem that this bill is still properly before the committee. And we're going to resume his presentation of the proposed Committee Substitute for Senate Bill 71, which is properly before the committee. Please continue. >> And Mr. Chairman, I'm assuming hopefully that I don't have to go back and re-record this. >> Just to be clear, the Chair assumes the members were recording it even if the machine was not. [LAUGH] >> Thank you. Thank you, Mr. Chairman. Anyway, again you will see language changes with respect to coal ash, the Coal Ash Commission's composition throughout the first part

of the bill from page 4 through page 8. I would also note that one of the things we tried to do to make sure that there would be no way that the legislative members could constitute a majority here is change the quorum requirements too. So that two members, meaning the two legislative members, could ever make up a quorum of three, in other words the governor's appointments here will always be in charge. Because we are re-constituting the Coal Ash Commission, what we're also needing to do we wanna put it, and remember how this was setup. DEQ makes a series of recommendations, in terms of how to classify these various coal ash basins, based on information largely provided to it by Duke Energy, but also others. And then after a certain period of time, the Coal Ash Commission has to make a decision on those. It takes the determinations and determines whether those will go final. We don't have a Coal Ash Commission right now, and so the bill then provides additional time to do that, and sets forth, makes some assumptions about the appointment process that would occur here. Given the position the administration has taken, it's pretty clear that there could be a veto of this bill, and there continues to be a concern that if we have a veto, we're gonna override, we get caught up in court, no one gets appointed, and yet who is making the decision here? So there is a default provision, and I'll call it a default provision, that may not be the right term. But basically says that if all of that happens, the Environmental Management Commission, which is already constituted, has been in place for decades. And the governor has actually appointed the majority of that commission is in place, would step into the shoes of the Coal Ash Commission while litigation goes forward. Again, the focus here is to keep the process running. We can't allow a year to go by, and not really be sure where we are on that. You will then see, again there are four-year terms, they rotate. The standard provisions on that are in almost every law that we passed regarding removal of members, malfeasance, misfeasance, etc. And that takes you really to page, I guess 13, where you see a similar set of changes being made in the Oil and Gas Commission, and then where's the other one? I've skipped over a commission here. There. page 11 is the Mining Commission, and then page 13 is the Oil and Gas Commission. The bill does provide, so as to not put a question, rules that have been already put in place by these commissions. We are adopting those rules and making them our own, so they don't have to go back through this whole process again. Somebody questioning their authority at some point, as to whether they had properly constituted to put in place those rules. So that is my layman's summary of the bill. If I can Mr. Chairman, turn to Jennifer McGinnis and see what I missed. >> Miss McGinnis, did you wanna add any details on the bill? >> Mr. Chairman, I think Representative McGrady actually did a very thorough job going through the key provisions, but I'm of course happy to answer any questions that the members would have. >> We'll certainly hold that for questions from the members. With that, the Chair is unaware if it's Secretary van der Vaart, or Mr. Stephens who wish to speak first. Either one of the gentleman will certainly be recognised. Mr. Stephens, it is our pleasure to welcome you to the Committee on Rules, Calendar and Operations of the House, sir. The identity of the gentleman, Mr. Stephens, the counsellor for the governor is known. And the Chair is pleased to recognise you to speak on the proposed committee substitute. >> Thank you, Mr. Chairman. I am Bob Stephens, and I am the governor's General Counsel. I wanna speak to you about the parts of the bill that deal with the three commissions that Representative McGrady just discussed

in some detail. We have looked at those commissions. We've looked at their structure, and we've looked at how they're being created, and my message to you is that all three of those commissions are unconstitutional, and will be challenged. Either by the governor, or by some third party who's aggrieved by some decision that they've made. I'm gonna tell you why they're unconstitutional in a minute, but let me go back and remind you of some history, and Representative McGrady discussed it, and that is the case of McCrory versus Berger. In 2014, this House considered a coal ash bill very similar to this one in terms of these three commissions. At that time, we spoke to you. We told you that we thought that the three commissions were unconstitutional because of the way they were structured and created. The bill was passed nevertheless, and then McCrory versus Berger was filed. And in McCrory versus Berger, we say they're unconstitutional, and the Supreme Court agreed with us in a 6-1 decision. Prior to that, we argued in front of a three-judge panel that also agreed with us. So we have nine judges and justices who have said that those commissions were unconstitutional. The ones you're considering today in this bill are essentially the same ones that were declared unconstitutional before, and let me tell you why and if you wanna ask questions that's fine. But let me give you a little bit about what the Supreme Court told us. The Supreme Court said, if the legislature wants to create a commission, as it has the authority to do, that performs an executive branch function, then the governor must have adequate control over that commission. And the Supreme Court went on further and said, here's what adequate control means. And with all due respect to Representative McGrady, the Supreme Court said there are three things that the governor must have in order to have control over the commission. The first one is appointments, and we've interpreted that to mean the governor must have a majority of the appointments. The Supreme Court didn't say majority, but that's the way we've interpreted it. The second one is, the governor or his secretary must have supervision over the commission. And then the third one is that the governor must have the ability to remove members of the commission at-will, those are the three things. And ladies and gentlemen, the three commissions that are in this bill today give the governor none of those. Not one. We do have the right to appoint a majority of the members, but now the bill has added that those members have to be confirmed. Legislature clearly has the right for confirmation in most instances. But when it is a commission that performs an executive branch function, the legislature cannot limit the governor's ability to appoint a majority by requiring them to go through a confirmation process. So we don't have the first one. The second one is the governor must have supervisory powers over the commission, and again with all due respect to Representative McGrady. We looked at the provision in the bill that talks about supervision, and quite frankly it doesn't say anything about who supervises. It clearly does not say that it is the governor, or the secretary of the Department of Environmental Quality, or the secretary of the Department of Public Safety. It does not say that they have supervisory powers. And then the third thing is the right to remove. And as Representative

McGrady correctly explained to you, this bill says, that the governor may remove members of the commissions for misfeasance, malfeasance and nonfeasance. The Supreme Court has said, the governor must have the power to remove at-will. So we have none of these. So my message is, let's don't relive history here. We know what happened the first time, let's don't do it again. Nobody wants that. The governor does not want that, but if this bill continues on with these three commissions structured the way that they are, he will veto the bill and we'll file a lawsuit, and we'll be right back where we were in 2014. So I would encourage you, and I would politely ask you to give thoughtful consideration to changing the way these committees are structured. Mr. Chairman, thank you very much. >> Thank you, Mr. Stephens. Members, the Chair is pleased to recognize Secretary Donald van der Vaart to speak on the bill, and the identity of the speaker is known to the Chair, and the Chair is pleased to recognize the Secretary. >> Thank you Chairman, and thank you for letting us discuss this bill. I'm here to speak more to the environmental side. If you've been keeping up with this, I think the reason we're here is because our department has done our job. We've been working with Duke in the last four or so weeks, and we discussed with them that the remaining issues left from an uncertainty standpoint, that is a risk standpoint, had to do with both dam repairs and the issue of how much nearby water is being impacted by the basins. I told Duke that they must satisfy those questions, those uncertainties. And toward the last two, three, four weeks it appeared that they were not gonna be able to achieve that, and so we discussed with them the possibility of eliminating some of these uncertain receptor wells by hooking them up with public water supply, that would eliminate the risk entirely. So at that time, they continued on trying to convince us otherwise. But when we made it clear that we were going to establish the risk levels according to the Coal Ash Management Act at the intermediate and higher levels, the story changed. And at that point, we were told that perhaps they could hook up water lines, and the day before we made the final proposal, we got a plan that identified hooking up water to various wells. And so I just tell you that to explain to you the context in which we deal in this issue, and it's the kind of the brinkmanship that is unfortunate. And since then of course we still had to do our job, we still explained that the uncertainty was still there. But I made it clear that with that kind of approach, an approach that we talked with Duke more than a month, month and a half ago now. With that kind of approach, we should be able to be given the authority under the Coal Ash Management Act, through a revision, so that we could revisit these classifications. Makes total sense, and I think what you've heard today is that everybody believes that for those uncertain wells, those questionable wells, this is a good solution. So I'm here to say that, that part of the bill is quite right, and it's quite reasonable, but the problem is, is that this bill is far too open-ended. We are looking for an 18-month deadline by which time we wanna see those water lines hooked up. All this asks for is a kind of a pinkie swear. It's a kind of a, we need a plan and by the time we get the plan, we'll believe it and we need to re-classify it simply based on a plan. I do think that the two can come together. I think we can, as long as we have an enforceable vehicle where we can actually ensure that these lines get hooked up, then there maybe a reasonable solution.

But until we have that, we don't understand how this could be pushed from an environmental standpoint because it is too open-ended. We need those dams fixed. We have the authority for that, and we are exercising it as we speak. But the only enforceable mechanism we have to make sure that these risky wells get hooked up to public water is the Coal Ash Management Act and the classifications. and that's why we did what we did. That's why we can't support this bill, but I wanna recognize that there is a path forward. And we made that clear in our announcement, and I'm very disappointed to see some of the things that are being written by some of Duke's representatives of the chamber, and that sort of thing. Those things are just not true. But I do agree with Representative McGrady, that what we need to do is find where we can hook these questionable wells to a public drinking water supply, and remove that risk entirely. So, thank you very much. >> Thank you, Mr. Secretary. Representative Daughtry, for what purpose do rise? >> I have a question. >> Mr. Secretary, I think Representative Daughtry has a question. Would you be open to answering his question? Please, Representative Daughtry. >> Excuse me, Mr. Secretary. Excuse me Representative Daughtry, would you please press the microphone button? Thank you. >> If the wells are hooked up to a water system that's satisfactory and the dams are fixed, is it your determination it would lower the risk levels? Would that be done? I think that's what Duke's so afraid of. >> Right, and we made a statement in our announcement, and if you look at the table that we set up, the language right at the very top makes it absolutely clear. It gave Duke a path to lowering these classifications, and it's exactly what you said, Representative Daughtry. What we said is, if you satisfactorily, to our satisfaction, repair the dams and if you, to our satisfaction, eliminate those risks through hooking up to installation of public water supplies, then they can be classified low. >> Thank you. >> Members, are there any other questions for the secretary? Seeing none, Representative McGrady, did the gentleman desire any comment at this time? Members, are there questions of staff or questions of the bill's sponsor? Representative Blust, the gentleman is recognized for an inquiry. >> I'd like to hear any potential rebuttal from Mr. Stephens on that. What did the ruling say? Was that a correct assessment of the court ruling? >> Thank you, Representative. Members, the Chair is gonna ask if you could assist us by pressing the green buttons on those microphones. And I believe Representative McGrady heard the question, which dealt with the rebuttal of the constitutional arguments. So, >> Mr. Chairman if I could, you and I know I haven't practised law in a while. I'd like to turn to Bart Goodson on the House's Speaker staff, and then turn to central staff to make sure you hear two different opinions on this. >> Again, my name Bart Goodson. For those who don't know me, I'm the Speaker's General Counsel. Representative Blust, to answer your questions, and with all due respect to Mr. Stephens and the governor's legal staff who I have the utmost respect for, this is one of these cases where we simply have to agree to disagree on their interpretation of what the Supreme Court said. The Supreme Court in this case, fortunately or unfortunately depending on how you look at it, did not give us very specific and clear guidelines going forward. There are some things that Mr. Stephen's represented to you, that in my personal opinion, legal opinion, I think are mischaracterizations. I don't think anywhere in there does the court say that we must give the governor at-will removal. I think the Court makes it clear that we do have confirmation power as well. So I think we have addressed in this bill, staff has addressed in this bill. I can't take credit for it, and Representative McGrady and the others who've worked on this. The concerns that the North Carolina Supreme Court raised in McCrory versus Berger, Bob Stephens, Mr. Stephens spoke about adequate control. That's where we ultimately are looking for a definition.

The court didn't give us a bright-line definition of what constitutes adequate control. The governor has one position, the House has another. Where the Supreme Court may come down, who knows? But we think we have addressed their concerns from that case. >> Follow up. As I understood it, Governor McCrory was not the sole plaintiff. Have the other plaintiffs in McCrory versus Berger weighed in on what they think of this? >> I forget them. >> I think it doesn't matter. >> I will just say, I've spoken with Governor Martin and Governor Hunt. Both of them have told me that the case turned on the appointments issue, and as they understood the position being taken by Governor McCrory, they are not supportive of that position. I didn't seek their opinion, it was accidental. But when I had the conversation, I went ahead and had it. Thank you. >> Representative Blust, did you want the central staff to speak to your question, Miss McGinnis and the other staff? >> Thank you, Mr. Chairman. We fully agree with Mr. Goodson. The court identified several factors in their upholding, concerning the supervision, but never made a definitive bright-line for the General Assembly. In fact they said, we cannot adopt a categorical rule. The bill before you provides the governor a majority of the appointments. That much was clear from that decision. It also removes language in the 2014 legislation that made the commission independent of the Department of Public Safety. It now puts it back in the Department of Public Safety. And in fact, we actually enhanced the language to make it clear that the Department of Public Safety is under the purview of the secretary, who takes his authority from the governor and the Constitution. So we've made it clear it is now operating fully within the authority of an executive branch agency. As for the dismissal for cause, legislative staff pretty thoroughly searched all the commissions across the statute. I think we only found four where it's kind of an at-will dismal authority. Two of them were licensing boards, acupuncturists, architecture board. One of them I do believe was the Board of Transportation, but beyond that it is all malfeasance, nonfeasance, with the event that it just tracks what has supposedly been the case with the decision. >> Representative Bell, for what purpose does the gentleman seeks recognition? >> A question and a comment, I'll deal with the question first. >> The gentleman may state his question. >> Thank you, Mr. Chairman. I'm not a lawyer and I'm very glad I'm not. But I do read a little bit here, and it says that there's just seven members that are appointed to the commission, five of them are gubernatorial appointments. Now I'm trying to describe what is adequate, but I do think that if five of the seven are gubernatorial appointments, that before we had four of them, and four to three for a quorum of gubernatorial appointments. I don't understand, how is that not adequate? Would be the question, and I don't know if that's a staff question, or Mr. Stephen's question, or her question. That's my question, and then my comment, and I'll let people think about that answer a little bit while I do my comment. My comment is, is we can get into an interpretation contest and talk about the past, but I have to look at North Carolina now and what's to happen in the future. And if you drive a mile and a half down the road from my house, you'll find the Lee Plant, where we do have some coal ash ponds sitting there, and so this is a big issue with my community. In Section 1, adding water supply is something we're in dire need, and for me this Section 1 alone is enough to ask the members of this body for support and let's move this bill forward. Cuz this a much needed provision that the residents in my community need, and I'm sure residents in other communities need right now. And so the legal case will play itself out, but this is a much needed provision here. I wanna thank the bill sponsors for working on this. I know it's not easy, but we do need it done. >> Representative Bell, for the purpose of the record of answering your question, the Chair is gonna recognize Mr. Goodson to speak to that point. [BLANK_AUDIO] >> Representative Bell and Miss McGinnis can chime in on this as well, if I have this incorrect. But there's obviously a concern here that they we're trying to address

in light of the decision, in light of the governor's concern for control. Again, Mr. Stephens spoke about adequate control. There's a concern that there could be a possibility of a quorum scenario in which members, appointed members from the House and Senate compose the majority. Perhaps if the quorum were three, and you had a scenario where you had the appointee from the House, appointee from the Senate and one from the governor's office constituting a quorum, that the governor will not be in control. So there's an attempt here to address that concern making the quorum four, of which three have to be gubernatorial appointees. That eliminates that concern from our standpoint, is that fair? >> I would agree that there would be really no action the commission could take without a majority of the governor's appointments moving that action forward. Even there just can't be any action unless there is a quorum consisting of a majority of the governor's appointees. >> Representative Daughtry, for what purpose does the gentleman seek recognition? >> To ask the staff - >> The gentleman is recognized. >> The lawyers, a question regarding the staff on the commission, usually who gets to appoint the staff? >> Mr. Chairman? >> Miss McGinnis, you're recognized. >> If you look at page 11, Section 2g of the bill, there is an appropriation of $400,000 in the current fiscal year from funding actually sitting in the Coal Ash Management Fund to the commission to hire for five positions. It does have language that states that the Department of Public Safety, Emergency Management Division, would also provide staff. So it would be staffed as within its own department where its administratively housed. >> Okay. Representative Bumgardner, for what purpose does the gentleman seek recognition? >> Thank you, Mr. Chairman. I just had a point about the - >> The gentleman is recognized. >> Thank you. The proposed classification chart that I have that the DEQ says, the second line from the bottom, will recommend that the law be changed to reflect them safety repairs. They can recommend that, but they can't say definitively that the law will be changed. So they're in effect saying they're willing to change an intermediate risk to a low risk, but that's based on the General Assembly taking action. [BLANK_AUDIO] >> The Chair apologizes, Representative Bumgardner. That was a statement, or was that an? >> Well it's a statement, but it's kind of a question too in that we're having a discussion about how to control the commission. And apparently we have money dedicated to the commission, and DEQ is promising to change the status of ponds, but they can't change it unless the General Assembly agrees to change it. And that's what it say right here on their paper. >> All right. Representative Floyd, for what purpose does the gentleman seek recognition? >> To ask either the staff or the bill sponsor a question, and that's provided in page 5 line 49 to page 6 line 1, 2, 3. >> Representative Floyd, the Chair believes the gentleman is asking about page 5 starting in line 49, and continuing on page 6 through line 3, is that correct? Please continue. >> My concern is that, if the House and Senate appoint, and then the governor wants at-will appointment to remove those individuals that the House and the Senate appoint? That's my question. >> Mr. Chairman? >> Miss McGinnis. >> I believe that would be for the governor's office to respond

to, but it is possible to construct the statute so that the governor would be given at-will removal authority for the governor's appointments, but not for the General Assembly appointments. But again, right now the governor does not have at-will removal power. >> The gentleman is recognized. >> But that was one of the questions. That was one of the things that we see that might bring the legal challenge, is that he does not have the statutory authority to remove. So when I hear statutory authority to remove, that means he can remove, that he is seeking removal of all. I don't know if it's like that. It's not having to determine Mr. Chairman, but that's the question that's lingering about that in the cloud, his ability to remove. >> Representative Floyd, let the Chair take a swipe at this one. The Chair believes it would be fair statement to say that there are different legal opinions on whether or not the court required the governor to have the authority to remove these appointees, or not. It would be fair to say that, that is the position that the counsel for the governor has taken, but that is not the position that the bill sponsors, or our central staff has taken. Representative Jackson, for what purpose does gentleman seek? I'm sorry, did you - >> Mr. Chairman, I can answer that. The way we've interpreted the removal authority. >> Okay. Mr. Stephens, the Chair's going to invite you to come forward and speak to that point. [BLANK_AUDIO] Yes sir, Mr. Stephens. >> Representative, the authority that the governor is seeking for removal at-will would apply only to his appointees, not to the others. Thanks, I'll just, >> Thank you, Mr. Stephens. Representative Jackson, for what purpose does the gentleman seek recognition? >> I had a question, whether to staff or to the - >> The gentleman may state his inquiry. >> It is a question about timing, and if someone could help me understand. This is a 16-page bill. I am now 21 pages into a 50-page Supreme Court decision trying to figure out, we got really smart and good lawyers who do this for a living on both sides who don't agree on this point. And if somebody can just help me understand why I need to make a decision and vote on it tonight. >> Representative McGrady, does the gentleman wish to handle that? >> When the Chair is ready just have it on the calendar. >> Well, the reason we need to vote on it soon is that I believe we need a Coal Ash Commission that is going to take the determinations done by the department, and bring it's independent expertise. Because we've got people with particular expertise appointed to these positions, and make a final decision. It's a two-step decision-making process, and the second step is to look over the recommendations, determinations, whatever you wanna call them, by the Coal Ash Commission. So that's the big issue. I will tell you standing here, I would have liked to have run this through the ERC and brought it to the floor the first week we got back. But sometimes the legislative process doesn't work that way, and so we stand here tonight. The other pressure here is that because we ended up with determinations last week that are what they are, there are now concerns about what the financial implications of the determinations that were made are. And that puts more pressure on, let's make sure we've got the process right, and so that's why you're here. There's interest in moving forward, and then finally we've heard people say we need to give them clean water, and they don't want bottled water anymore. And that's a huge piece of this bill that up to this point has been nowhere in legislation, so. >> Representative Jackson, for what purpose does the gentleman seek recognition? >> A follow up, Mr. Chairman. >> The gentleman is recognized for an inquiry.

>> Just following up with that Chairman McGrady, is it your anticipation that we could get these members appointed and confirmed by this body that quickly? Will we actually even get confirmation hearings before we're done with the short session? >> Yes it is my, if the appointments are made in a timely fashion, the confirmation will be made. If for some reason it slips, I believe the confirmation process is waived until we're next back in session. So the idea here is not to allow this to slow down just because of the vagaries of the legislative schedule. >> Thank you. >> Representative Jackson and members, the Chair would point out that a substantial amount of the bill that's before you was emailed to the committee several weeks ago in anticipation of being heard. And the Chair would also point out, part of the reason that the Rules Committee is meeting today, is to report out a bill that can be placed online and then be considered in Appropriations tomorrow. Representative Stam, for what purpose does the gentleman seek recognition? >> To have an idea for Representative Jackson. >> Do the gentlemen wish to go outside and discuss the idea? >> [LAUGH] >> Representative Jackson, if you just read about the last two pages, the majority opinion, that's all that really matters, and you still won't have an answer to the question. They wouldn't be arguing about it now if there was really an answer in the opinion, but you don't have to read all 50 pages. >> The Chair is gonna let Representative Jackson respond to the cliff note version of Con law, >> [LAUGH] >> If he so desires. >> Representative Stam, I like to read subtexts in decisions as well, it was a 6-1 decision. So it wasn't what they would term a close call, and when I start reading things that say, and the challenged legislation start with constrains the governor's power to remove members of any of three commissions, including him to do so only for cause. Although they don't say that it needs to give him more ability to remove them, it sure does imply that to me, and that's why I'd like to take the time to read the decision. But I understand it will hold things up tonight. >> Representative Hall, for what purpose does the gentleman seek recognition? >> I have a couple of questions, and whether it's to Representative McGrady or whoever on staff. Can I ask - >> If the gentleman would just state them, the Chair will direct the responder. >> Okay. Thank you, Mr. Chairman. The way this bill is set up now, proposes, does this allow the new commission to go back and hold public hearings again on these issues? >> Miss McGinnis. >> There's no requirement for the Coal Ash Management Commission, or the Environmental Management Commission if the EMP pops into the role for either of them to have public hearings around the State. >> The gentleman is recognized. >> Follow up. Then you said there's no requirement, and I guess my question is, will this newly constituted commission have authority to reopen public hearings then under the current version of the bill? >> Miss McGinnis. >> Now, just a point of clarification. It was always the Department of Environmental Quality who was conducting public hearings around the State, based on their proposed classifications. So we can look at the powers and duties of the Coal Ash Management Commission Act enacted, but the public hearing and public notice were tasks that were given to the Department of Environmental Quality in the original legislation. The role of the commission primarily is to review the classifications. To make sure that they were accurate, based on all of the information that was received, including public comments, and issue of final determination, and then of course also to evaluate the final closure plan. But there were no directions for the commission to hold public hearings, and again, we'll have to look at the statutory powers and duties to see if, we think that they could have the authority if they wanted to. >> Could - >> Just nothing in the bill, excuse me. >> The gentleman's recognized to continue his question. >> Thank you, Mr. Chairman. So I'm trying to determine then if this commission gets appointed, if they will be constrained to look at the public hearing information responses, and science as has already been solicited. And if any recommendations they make would be based upon that, is that already fixed?

>> In terms of the public hearing, again, we're looking at the powers and duties that they're constrained to just to entertain what was heard in the first public hearings. But part of this bill directs the Department of Environmental Quality to open up the public comment period again. It would be extended to August 1st. So additional information obviously could come from the public during the next 60 or so days. It does not require new public hearings, it just directs the Department of Environmental Quality to receive public comment until August 1st. And then gives them a period until September 1st to incorporate those comments and data and the information received in that period, and modify the classifications if necessary, before they submit them to the commission for review and potential approval. >> Follow up. Then under the bill as it's written now, then we're sometimes out past December possibly before action will be taken? >> Miss McGinnis. >> The timeline basically is, under this bill, that DEQ would be directed to open back up public comment period till August 1st. Then give them 30 days until September 1st to incorporate and modify proposed classifications as needed. Submit them to a commission, the Coal Ash Management Commission if it is appointed, or the Environmental Management Commission, if the CAMC is not appointed by that point. And then under the provisions, the Coal Ash Management Commission or the EMC would have 120 days from that point to review the proposed classifications, and all the information that had been received. And the way we read the statutes, not just the information that has been received, but it can look at information that did not come to DEQ. It has authority to look at all relevant information to an accurate classification. So it has 120 days. If it determines that it cannot make a decision on an accurate classification in the first 120 days, it is given another 120 days to make that decision. Of course, the Coal Ash Management Commission was disassembled months ago. So there's no staff, there's no members and so there was, I believe on the part of the sponsor, that there needed to be a time period for a newly reconstituted commission to ramp up in order to evaluate the proposed classification. >> Representative Paul. >> Yes. Thank you, Mr. Chairman. So I understand, we're basically saying then potentially under this, will be a year from now before we have this review completed, for the last cycle that they take an additional 120 days? Is that what you're telling us? >> I believe if you'd look on a calendar, if everything goes till the very last day, you're setting out in March. >> Next year in March? >> That's right. If everybody waits till the last minute to do appointments, to get everything done and we all take till the very last day, you could run the clock till March. On the other hand, if the additional 120 days are not there, you can march that back and you're in November. You march that back, and you're in November. When the commission would normally make its decision on the classifications put forward by the Department of Environmental Quality. >> Final follow up. >> Representative Hall. >> On the question of the water lines that are anticipated as going in, the people previously had wells that they had one-time expense of maintenance expense on. So are the water lines going in, is there some compensation or payment plan that allows the people that receive the water lines now, who previously had wells to receive that water from the city systems or wherever it's coming from without charge, or are they charged for the water usage going forward?

>> I'm not sure I know the answer to that. >> Mr. Chairman? >> Miss McGinnis. >> The provision just wraps a coal ash impoundment owner to provide a permanent alternative water supply. So it would be impoundment owner who would pay to either connect a household to a public water system, a pipe, or potentially also a whole house filtration system. The language does allow if the State Water Infrastructure Authority determines, based on proximity to a connection point and that kind of thing. If it is cost prohibitive for those rural households, a whole house filtration system is a possibility as well. Again, that is paid for by the impoundment. >> That's right, and so I've spoken to a dozen or more people who live around the impoundments. What they've always asked for is, get us public water, and so that's what this bill intends to do. It doesn't give them free public water, but it does put in all the pipes and gets them connected up. And if it's utterly impossible to get them public water, then we go the filtration route because again some of these are really rural areas, and it may not actually be possible. I'm assuming, without knowing, that the well water would still be potentially usable for other purposes. We're just not wanting, this is water that you may not wanna drink or bathe in perhaps, but it might be perfectly acceptable for other purposes, and I hope that's responsive. >> Final question, Mr. Chairman. Then this commission won't have any authority to grant any medical claims, or anything related to injuries, or damage to the property? >> No. >> Only to connect water? >> The commission has no jurisdiction over that. As was stated previously, the primary reason for the commission is to look at the classifications that have been put forward by the department, and to determine if they're the right ones. I would note though that, the commission that was in place before it was abolished was looking at the classifications, and had put together some proposals for us related to beneficial use, and that would certainly be within the prerogative of the commission to look at. This is a first time law. Look at things that might ought to be changed and tell us, we can do this in a better way, and I would hope the commission would also do that in its work. >> Representative Bumgardner, did - >> Am I the only one who had issues? >> Yes sir. >> Are we gonna have a vote on this? >> Yes sir. >> I'm not gonna have my questions answered, right? >> Representative Reives, for what purpose does the gentleman seek recognition? >> Just an inquiry of the bill sponsor or staff. >> The gentleman may state his inquiry. >> Thank you. If you look at 4 c, which is page 15 line 43. Now I may just be misreading this cuz it's late and I'm tired. I don't know. But it looks like to me that 4c is merely restating what 150b-2147 already says. Is that correct? >> I'll let staff take that one. >> Yes, it does track that 150b section very closely because of the McCrory v Berger decision however, and there is a pending lawsuit on the oil and gas rule. That basically calls into question whether the rules are constitutional given that the McCrory v Berger decision held that the commission that adopted the rule suite for oil and gas was unconstitutional as appointed. This language, the 150b language looks like just the situation before us. But it is intended to say, that rule suite that was adopted by the commission is now the rule suite and remains effective, is effective in the commission that is reconstituted in the bill before you. So basically intended to moot out the pending lawsuit that calls to constitutionality of the rule suite in the question. >> Members, the Chair sees no further hands.

The gentleman from Wake, Representative Stam has moved, that the proposed Committee Substitute for Senate Bill 71 be given a favorable report, unfavorable to the original bill. And that the proposed Committee Substitute be re-referred to the Committee on Appropriations. Is there further discussion or debate on the motion from the gentleman from Wake? Seeing none, those favoring the motion will say Aye, >> Aye. >> Those opposed will say, No, >> No. >> In the opinion of the Chair, the Ayes have it. The motion carries. There'll be no further business before the committee, the committee stands adjourned. [BLANK-AUDIO] Need to pause to celebrate really good news, and I'd like to announce that my intern Keith Foyet, has just been accepted into Campbell University, School of Law.