N.C. Coal Ash Management Commission disbanded as risk hearings underway

Workers excavate coal ash-laden soil from Duke Energy’s Dan River power plant in Eden.
Workers excavate coal ash-laden soil from Duke Energy’s Dan River power plant in Eden. AP

The state Coal Ash Management Commission, which played a key oversight role in closing Duke Energy’s ash ponds statewide, was abruptly disbanded this week.

Gov. Pat McCrory had challenged legislative appointments to the commission on constitutional grounds. In January, the N.C. Supreme Court agreed with him.

A staff email Monday to legislative leaders quoted the commission’s executive director, Natalie Birdwell, as saying “she had just been informed by the Governor’s Office that the Commission was no longer a legal entity.”

Rep. Chuck McGrady, an architect of the 2014 law that created the commission, confirmed it is not functioning. Birdwell wrote contacts Thursday that she had resigned. The commission’s website went dark.

McCrory’s office did not respond to requests for comment Wednesday and Thursday. After the Supreme Court ruling, the governor’s legal counsel said members of the ash commission and two other commissions named in the legal challenge would have to be reappointed.

“The North Carolina Supreme Court made it clear that the commission is an unconstitutional body that cannot take any action,” the Department of Environmental Quality said in a statement that the department said also represented the governor’s office. “However, there will be absolutely no change in the Department of Environmental Quality's implementation of the Coal Ash Management Act, which is the first comprehensive law in the nation to deal with coal ash.”

Birdwell would not comment, and commission chair Michael Jacobs could not be reached.

The nine-member commission was intended to ensure that the years-long process of closing Duke’s 32 ash ponds was done professionally amid public distrust of Duke and state regulators. At the time it was created, months after an ash spill into the Dan River, some legislators doubted the state environmental agency’s ability to police Duke.

Removing the commission “was not the intent of the original legislation, which frankly reflected a lack of confidence in what was then the Department of Environment and Natural Resources,” McGrady said Thursday. “I view the governor’s position as basically saying … DEQ is completely capable of handling the matter and we don’t need this overview.”

The DEQ is holding public meetings this month on proposed risk classifications that will determine how and when the ponds are closed. One of the commission’s key tasks was to review DEQ’s recommendations before they become final.

Engineer Chris Hardin, a coal ash expert and professional in residence at UNC Charlotte, worked as a technical information consultant for the commission. Hardin said he and Birdwell met last Friday with two engineering firms that were to review documents about the risk classifications.

“We were so excited as a team of engineers to work with Natalie. We felt we had a pretty clear charge of what to do,” Hardin said. Word the commission’s work had been stopped, he added, “just seems confusing because of the fact that we’re in public hearings.”

State law charges the commission with reviewing DEQ’s proposed risk classifications to make sure they “accurately reflect the level of risk” the ash ponds pose. If the commission doesn’t act on a proposed classification within 60 days, it is deemed to be approved.

In a preliminary document, DEQ classified most of the 32 ash ponds as intermediate or high risk, which would require the ash be removed from them as advocates want.

But the department’s final proposals on Dec. 31 classified eight ponds as “low-intermediate” risk, meaning those ponds might be drained and covered but the ash remain in place.

The state Sierra Club and the Southern Environmental Law Center, which represents advocates who have sued Duke, said closing the commission will erode public confidence in the state’s handling of coal ash.

“The legislature created the Coal Ash Management Commission to provide an added layer of independent review over the coal ash cleanup process,” said Cassie Gavin, the Sierra Club’s government relations director. “North Carolinians deserve to know that the decisions made regarding coal ash near their communities are based on science and engineering, not politics."

Duke said it “will comply with the law and rules that govern coal ash basin closure. We are focused on closing basins in ways that put safety first, protect the environment, minimize impacts to communities and manage costs.”

McGrady, a Hendersonville Republican and co-chair of the legislature’s Environmental Review Commission, said he had believed the legislature could “quickly fix” the appointments issue, allowing it to continue its oversight role.

McGrady said he’s talked to the staff of House Speaker Tim Moore but doesn’t know what if anything the legislature will do in response. Neither Moore’s nor Senate President Phil Berger’s office immediately responded to a request for comment.

Bruce Henderson: 704-358-5051, @bhender