House, Senate approve compromise coal ash bill

North Carolina’s legislature approved a landmark bill Wednesday that begins the end of the coal ash ponds that line the state’s rivers and lakes, if not their environmental legacy.

Just before ending their sessions, lawmakers revived a stalemated bill and enacted the nation’s most aggressive regulations on ash. The third-worst U.S. ash spill, by Duke Energy into the Dan River in February, motivated legislators.

Duke will close its 33 North Carolina ponds by 2029, under the measure, although it can ask for extensions. A new, politically appointed commission will oversee the disposal of more than 100 million tons of ash. For the first time, ash will be treated like other forms of waste.

“This makes North Carolina the leader in coal ash management in the United States,” said Sen. Tom Apodaca, R-Henderson, who led Senate work on the bill. “I think we can go home proud.”

Environmental advocates, including several involved in lawsuits over Duke’s ash, faulted lawmakers for specifying that Duke excavate ash at only four of its 14 coal-fired power plants. The long-term fate of other ponds isn’t clear but, for some, will likely include caps placed over ash that stays in place.

“It’s still a woefully inadequate plan,” said Catawba Riverkeeper Sam Perkins. “I don’t think you can justify coal ash in pretty much the worst place possible, which is perched up high on the waterfront.”

Coal ash contains trace metals such as arsenic and selenium that can be toxic in high concentrations. The ash stockpile closest to Charlotte, at Duke’s Riverbend power plant, sits beside the city’s water supply.

“The comprehensive action by North Carolina lawmakers gives Duke Energy direction to move forward with a stronger standard for the management of coal ash at our facilities,” Duke CEO Lynn Good said in a brief statement. “We will immediately begin adapting our strategy to meet the requirements in the 2014 Coal Ash Management Act.”

The measure passed 84-13 in the House and 38-2 in the Senate. Gov. Pat McCrory has not said whether he will sign the bill.

Several of the few legislators who voted no pointed to its failure to make Duke, not its 3.2 million North Carolina customers, cover the costs of closing the ponds.

Duke is free to ask the N.C. Utilities Commission for approval to pass those costs to ratepayers, as it has indicated it will, once a brief moratorium expires Jan. 15. Duke has estimated the costs of closing the ponds at up to $10 billion. A state official has estimated that amount, if passed on to customers, would add more than $20 a month to typical bills.

“Not having a (longer) moratorium is telling the public, ‘This is going down, and your opinion doesn’t really matter,’ ” Rep. Paul Luebke, D-Durham, said during floor debate. “We as a body have not spoken out on cost, while Duke Energy has.”

Rep. Chuck McGrady, the Hendersonville Republican shepherding the bill in the House, said Duke isn’t likely to seek higher rates for ash anytime soon. Legislators may take up costs and other ash issues next year, he added.

“This is Coal Ash I,” he said. “There’s going to be a Coal Ash II and probably a Coal Ash III. We’re not going to get it all right the first time, but this bill gets us moving.”

Bill stalled in August

Ash emerged as a top priority for legislators after the Dan River spill, but the bill stalled in early August as House and Senate leaders tried to bridge differences between their versions.

A compromise emerged this week. It included the House’s caution over allowing low-risk ponds to be capped, with the ash still in place, in areas where they could contaminate groundwater.

The bill now says the N.C. Department of Environment and Natural Resources can allow those ponds to be capped only if it concludes contaminated groundwater would not extend outside a compliance boundary. The boundary is typically a 500-foot radius around the pollution source.

McGrady called that change “the single most (important) reason to support the bill.”

“As a general matter, a coal ash pond that is sitting in water is not going to be capped in place unless there is a technology that precludes contamination from moving to your neighbor’s property. What we’re saying is that there are coal ash ponds that are not appropriate to be capped in place,” McGrady said.

But the bill reverses a Superior Court judge’s ruling this year that the state can require “immediate action” to clean up the source of groundwater contamination, which has been found at all 14 of Duke’s coal-fired power plants. Instead, the bill says, the ash commission will only require studies of the extent of contamination and a plan to fix it.

The Sierra Club, citing that reversal, said the bill fails to protect groundwater and doesn’t give enough guidance to the new ash commission that will oversee ash disposal. It called on the Environmental Protection Agency, which will issue federal ash rules in December, to “finish what North Carolina started.”

“Without this legislation, coal ash would have remained essentially unregulated, an untenable position for North Carolina residents,” said Molly Diggins, Sierra’s state director. “Still, today’s action does not go far enough to prevent more contamination of our treasured water resources.”

The legislation places the new ash commission under the N.C. Department of Public Safety instead of DENR, which has been criticized for lightly regulating Duke. But the Southern Environmental Law Center, which represents advocates in litigation over ash, said the bill still places too much trust in DENR.

“This bill asks all of us to trust DENR and a group of political appointees to make the coal ash decisions for all of North Carolina, when DENR and our politicians have repeatedly failed to clean up coal ash pollution and DENR’s coal ash activities are under investigation by a federal criminal grand jury,” said senior attorney Frank Holleman.