June 16, 2014

Senate bill sets 15-year deadline for closing ash ponds

Bill would make North Carolina the first state to force ash ponds to shut down.

A measure N.C. Senate leaders introduced Monday would name a new, appointed commission to oversee closing of Duke Energy’s 33 coal ash ponds in the state over 15 years.

Deadlines for closing the ponds would start in 2019 and extend to 2029, depending on the risks that environmental regulators and the new Coal Ash Management Commission decide they pose. An ash spill at Duke’s Dan River plant in February made ash legislation a priority in this year’s legislative session.

The deadlines are the measure’s biggest departure from a plan Gov. Pat McCrory submitted in April, which didn’t impose a timeline. A substitute bill announced by Senate leader Phil Berger and rules committee chairman Tom Apodaca, R-Henderson, came before the Senate agriculture committee Monday.

The Senate leaders said the measure would make North Carolina the first state to force ash ponds to shut down.

“We’ll be setting the trend for the rest of the country when it comes to dealing with coal ash,” said Apodaca, who leads Senate efforts to craft ash legislation.

Environmental groups, including those that have sued Duke over ash contamination, said the bill improves McCrory’s version but say it is riddled with loopholes that benefit Duke.

The measure holds utilities responsible for paying for ash spill cleanups – a step Duke has taken for the Dan River spill – but leaves unclear whether Duke or its customers would pay to drain the ponds of water and close them. Duke has said it will ask the North Carolina Utilities Commission to let it pass those costs to customers.

Duke spokesman Jeff Brooks called the deadlines aggressive.

“When we talk about 102 million tons of coal ash (statewide), our engineers say it could take up to to 30 years to move that from our sites,” he said.

The company is reviewing the 44-page bill, Brooks said. The Senate agriculture committee meets again Tuesday morning.

The Southern Environmental Law Center, which represents environmental groups that have sued Duke or joined state lawsuits against the utility, noted that the bill requires Duke to remove ash from ponds at only four of its 14 operating or retired power plants. Those include Riverbend west of Charlotte; Dan River, site of the Feb. 2 spill; the Asheville plant; and the Sutton plant in Wilmington.

Remaining ponds would be classified by three risk categories, with deadlines for closing them by 2019, 2024 and and 2029. Those classifications would be made by August 2015.

Like McCrory’s proposal, the Senate bill allows for low-risk ponds to keep ash in place, drained of water and with caps placed over the material.

Ponds in the two higher-risk categories could be drained of water and converted to lined landfills. Ash would be temporarily removed and then replaced in the newly created landfill or taken to lined landfills.

‘Step forward’

The law center and environmental groups said the bill lacks clear standards to measure ponds’ risk and appropriate closure methods or sanctions if Duke doesn’t comply. They said it would let Duke avoid violations for illegal seeps from its coal ash ponds, for example, by including them in state permits.

“The bill could allow Duke to leave most, if not all, the coal ash at its facilities in place, in unlined pits, where it could continue to seep into groundwater and pollute nearby streams for years to come,” said Amy Adams of Boone-based Appalachian Voices.

Newly generated ash would have to be disposed of in lined landfills. The bill bans new ash ponds and creates 29 state staff positions to regulate ash, to be paid for by a new fee on utilities.

Like McCrory’s proposal, the bill requires utilities to test groundwater and surface water around its ash ponds for contamination. Duke has found tainted groundwater around ponds at all 14 of its North Carolina power plants, but disputes whether its ponds are the sources.

Environment Secretary John Skvarla praised the Senate plan as a “very, very significant and solid step forward.”

The nine members of the new ash commission would be appointed by the House, Senate and governor. Senate agriculture committee member Fletcher Hartsell, R-Cabarrus, questioned how the commission would work with existing agencies, including the state Environmental Management Commission and the North Carolina Utilities Commission.

Public confidence

“For right now, it’s probably useful to have something independent – assuming it’s independent and has a broad-based relationship with other entities,” Hartsell said after the meeting.

Berger said the commission was intended to restore public confidence in a regulatory system rattled by claims it has ignored past ash contamination and colluded with Duke to avoid harsh penalties.

The Senate measure for the first time requires permits, liners, drainage collection systems and groundwater monitoring for new structural fills – ash used to fill gullies or level ground for building sites – that use 100,000 tons or more of ash. But it doesn’t require those protective measures for smaller fill sites, which are typical of those in the Charlotte region.

The bill puts heavy emphasis on reusing ash to make products such as concrete, requiring utilities to analyze potential markets.

“We’ve got to find new uses,” Apodaca said. “The plain fact is we just don’t have enough room to bury it all.”

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