Earth & Energy

Ash commission in a time squeeze on core duty

Coal ash was scooped from the banks of the Dan River after Duke Energy spilled tons in February 2014.
Coal ash was scooped from the banks of the Dan River after Duke Energy spilled tons in February 2014. AP

The Coal Ash Management Commission could run out of time to perform one of its key oversight duties, its chairman told Gov. Pat McCrory and legislative leaders this week.

The commission is in legal limbo because McCrory challenged its makeup. Legislation that created it last year said its nine members are to be appointed by the governor and the legislature. McCrory filed suit, saying the executive branch has sole authority to name such panels.

A three-judge panel agreed with the governor in March. The commission canceled its March meeting in Charlotte and, per the court ruling, has only the three members named by McCrory.

The case is now before the North Carolina Supreme Court, which heard arguments in June but has not yet ruled.

That’s becoming a problem because the Department of Environmental Quality has to recommend hazard classifications for each of Duke Energy’s 32 ash ponds by Dec. 31. The classifications will determine how and when, between 2019 and 2029, the ponds are closed.

The ash commission is charged with reviewing DEQ’s recommendations before they are made final. If it doesn’t act within 60 days of receiving them, the department’s recommendations will go into effect automatically.

That’s probably not what legislators had in mind when, following complaints of weak policing of ash by DEQ, they administratively housed the oversight commission in the Department of Public Safety.

But as time passes, the odds of getting a Supreme Court decision, naming new commission members and getting them up to speed on ash issues slips.

“As a practical matter, it is highly unlikely at this stage that there will be a sufficient number of commissioners sworn in by this date in order to convene a meeting to begin reviewing these recommendations and meet the timeline ... for rendering our decision in the spring of 2016,” chairman Michael Jacobs, who teaches business at UNC Chapel Hill, wrote McCrory, Senate leader Phil Berger and House Speaker Tim Moore.

After making its recommendations, DEQ has to send notices to affected counties, open a public comment period, and hold hearings on them. That process could take as long as the end of May – or end weeks sooner.

“DEQ will continue to work aggressively to meet its deadlines so that the public hearings in each county with a coal ash impoundment occur on schedule and the longstanding issue of coal ash is resolved as quickly as possible,” Secretary Donald van der Vaart said in a blog post this week.

Bruce Henderson: 704-358-5051, @bhender