Failure on coal ash is 2014 legislature’s legacy

North Carolina legislators will go home without nailing one of the General Assembly’s top priorities – action on toxic coal ash, prompting bitter exchanges among lawmakers, an executive order by the governor and dismay from environmental advocates.

Negotiations between the House and the Senate ended early Friday, with Senate leaders blaming House members for adding late provisions to a compromise bill. Legislators will try again in November.

The delay could help advocates suing Duke Energy over its ash management, highlighted by the nation’s third-largest ash spill into the Dan River in February. But environmentalists called the impasse further evidence of the state’s refusal to deal with ash.

“This is a multilayered failure of leadership. Both chambers failed to offer the comprehensive cleanup plan they promised at the outset of session,” said Donna Lisenby of the Waterkeeper Alliance. “Then they failed to take any action at all. We hope that lawmakers’ return in November will be a reboot of priorities.”

Gov. Pat McCrory issued an executive order in lieu of legislation. It orders the N.C. Department of Environment and Natural Resources to begin groundwater tests at Duke’s ash ponds, take steps to authorize draining water from high-priority ash ponds at four power plants and hire more staff.

“I issued this Executive Order to ensure that we don’t lose any more time in attacking this longstanding problem,” McCrory said in a statement. “While we are moving forward through this order, it is not a substitute for comprehensive legislation, and numerous issues need to be addressed.”

Senate leader Phil Berger and rules Chairman Tom Apodaca blamed the collapse of negotiations over a compromise bill on House members who “went rogue and attempted to strong-arm entirely new policy no one had ever seen before – that didn’t appear in either version of the bill – into the final legislation.”

Coal ash was a key concern issue for Berger, whose hometown of Eden was the site of Duke’s spill of up to 39,000 tons of ash into the Dan.

Both chambers had enacted broadly similar measures that would give Duke 15 years to drain water from its ash ponds, in stages according to their perceived risk.

The House had added the ability for Duke to seek open-ended extensions to the 15-year time frame, wording that environmentalists said would gut a judge’s order that the state could order “immediate action” on groundwater contamination, an issue at all of Duke’s coal-fired plants.

Berger and Apodaca pointed to the Senate’s tougher stance on those issues in claiming House members used a “last-minute maneuver to try to kill the coal ash bill.”

One of the “rogue” House members was Charlotte Republican Ruth Samuelson, who was one of the House negotiators.

Samuelson said the new House provision would have prevented Duke from allowing ash to be capped in place, rather than removing it, in areas with high water tables.

“It was important to us to make the coal ash bill as strong as possible,” Samuelson said, adding that she was disappointed that negotiations broke down. “If (the Senate) had stayed until today, we probably could have worked things out,” she said.

The Southern Environmental Law Center, which represents advocates suing or threatening to sue Duke, said the new provision would have improved the House version of the ash bill. Berger and Apodaca said its implications were unknown.

‘Enforce existing law’

Duke Energy said it will press ahead with an ash disposal plan the company proposed in March. That plan includes removing ash or accelerating its removal from four power plants. Among them is the Riverbend plant on Mountain Island Lake.

Permits haven’t been granted to begin the work, the company said, but engineering is underway.

“We will continue to work constructively with regulators and lawmakers to advance an enhanced plan for the long-term management of coal ash in North Carolina,” chief executive Lynn Good said. “We will also adjust our coal ash management plans according to upcoming federal rules on ash, which are expected in December.”

The Environmental Protection Agency is to release the first federal regulations on coal ash in December, after a delay of several years. Those rules will determine whether ash is regulated as a hazardous waste, and whether states or the federal government would take the lead in enforcement.

Environmental advocates said they, too, will continue to advance lawsuits targeting Duke’s ash.

“We will be pushing full steam ahead,” said Frank Holleman, a senior attorney with the Southern Environmental Law Center.

The legislation already included changes to groundwater contamination law and to state permits that environmentalists say benefit Duke. Because those changes haven’t been ratified, advocates can still argue in court that the company is violating existing standards.

“We’re going to work to enforce existing law, which is strong and which DENR (the state Department of Environment and Natural Resources) has not enforced,” Holleman said.

The law center represents groups that have sued Duke in federal court over ash at the Riverbend power plant near Charlotte and the Sutton plant in Wilmington. It has filed notices of intent to sue under the Clean Water Act over four additional plants.

Federal lawsuits may be filed over three of those plants, including Buck in Rowan County, in early September, if Duke doesn’t agree to fix problems or state environmental regulators don’t file similar actions on the same grounds.

Advocates have also been allowed to become parties to state-court lawsuits, for 12 of the 14 named power plants named, that DENR filed against Duke.