North Carolina’s environment department says all of Duke Energy’s coal ash ponds have to be excavated, but wants legislators to allow a revisit of that decision in 18 months.
The decision, released Wednesday on a deadline set by state law, is based on the state’s estimate of the risks posed by Duke’s 111 million tons of ash, including contaminating water supplies.
But regulators left open the option that Duke could save billions of dollars in cleanup costs by making repairs and submitting new data showing limited risk from its ash.
Duke maintains its ash has not tainted private wells nearby, but said Wednesday it may offer “peace of mind” to those neighborhoods by connecting them to public water lines.
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The Department of Environmental Quality said Wednesday’s deadline to decide when and how the ponds must be closed, based on risk ratings, was too short for Duke to make repairs to dams and submit more groundwater data.
“Making decisions based on incomplete information could lead to the expenditure of billions of dollars when spending millions now would provide equal or better protection,” Secretary Donald van der Vaart said in a statement.
Unless legislators change the timeline, DEQ’s decisions will take final effect in 60 days without review by an oversight panel created in 2014. Gov. Pat McCrory, a former Duke employee, disbanded the panel after a court case over appointees. A key legislator said the governor blocked efforts in recent days to revive it.
Duke has estimated the costs of closing the ponds at $4 billion but said in a securities filing Wednesday that costs would “significantly increase” if they all have to be excavated. Duke has said it would seek approval to pass those costs to customers.
A reversal of the department’s decisions could leave much of Duke’s ash in place. Environmental advocates, and neighbors who live near Duke’s power plants, insist that excavating ash is the only way to protect water supplies.
“If you allow them to do repairs and all this to the dams, you’re doing nothing for the danger that lies in the groundwater,” said Belmont resident Amy Brown, who lives near Duke’s Allen power plant. “If you do not remove the coal ash, you will always have people saying why didn’t you make them clean it up when you had the chance?”
Under the 2014 coal ash law, which followed a large spill of ash into the Dan River, eight of Duke’s ponds – near Charlotte, Eden, Asheville and Wilmington –were labeled high risk. The law required that they be drained of water and excavated by 2019.
In Wednesday’s decision, DEQ called the remaining 25 ponds intermediate risks, meaning they have to be dug up by 2024. Duke is excavating ash from five N.C. power plants.
Low-risk ratings, which Duke advocates, would mean ponds have to be closed by 2029. But the ponds could be simply drained and capped to keep out water, a far cheaper option than hauling ash away.
Capping ash ponds is allowed by the Environmental Protection Agency, Duke says, and would save customers money by reducing cleanup costs. Duke called DEQ’s excavation order “the most extreme closure option.”
“We do not believe (the ash law) intended a point-in-time ranking that relies on incomplete information,” Duke CEO Lynn Good told reporters. The company believes DEQ already has the ability to change its decisions when new information comes in, but will support changing the law.
DEQ appears receptive to changing its decisions to excavate.
Assistant Secretary Tom Reeder said the department hopes to determine the source and extent of groundwater contamination near Duke’s plants by late summer or early fall. Contaminated leaks from ash ponds into rivers and lakes could be regulated under pending discharge permits, he said.
“If the science proves that the risk has been alleviated to the people in these communities, and the risks of the solutions that Duke proposes is the same as excavation, that’s something we should consider,” Reeder said.
The department’s desire to revisit Wednesday’s announcement offers communities near Duke’s plants little guarantee they will be protected from ash, advocates said.
“They need to provide certainty to the people around the sites and even to Duke Energy,” said Catawba Riverkeeper Sam Perkins. “Letting these become final and truly final is what we need to move forward.”
Legislators created the Coal Ash Management Commission in 2014 to review DEQ’s decisions on closing ash ponds. McCrory disbanded the Coal Ash Management Commission in March after the state Supreme Court ruled that legislative appointments were unconstitutional.
Rep. Chuck McGrady, a Hendersonville Republican who helped write the coal ash law, said he finally won Senate support for a bill to reconstitute the commission. McCrory’s office, he said, promised to veto it.
“I just view this as a political act of an administration in trouble,” McGrady said. “Obviously the fact this governor is a former Duke employee is an issue. This is why we set up the second level of independent review.”
McCrory spokesman Graham Wilson responded that “the very liberal Rep. McGrady’s disrespectful and inaccurate statement is unbecoming to his office and doesn’t hide his disregard for the state Supreme Court’s recent 6-1 ruling that found the commission unconstitutional.”
Assistant DEQ secretary Reeder said the commission would serve no purpose.
“From a practical, regulatory perspective, I don’t see what possible benefit reconstituting the commission would have,” Reeder said. “Our staff has spent thousands of hours and gone over thousands of pages of documents on coal ash. The only thing I could see is it getting in the way and slowing things down.”