A map showing the 14 coal-ash sites across North Carolina. Duke Energy now owns Progress Energy's former sites. Graphic courtesy N.C. DENR

The state House has passed a coal-ash bill that, according to some critics, would weaken the rules that protect subsurface drinking water.

By Gabe Rivin

Last week, after two long days of debate and multiple amendments, lawmakers in the state House of Representatives passed a bill that would govern the cleanup of coal-ash storage sites left behind from generations of coal-fired power production.

The House’s bill, passed July 3, amends a bill produced by the Senate, which was passed on June 25. And although House Speaker Thom Tillis left his podium to argue that the bill creates strict cleanup standards “unlike anything that’s been done in any other state,” the House version includes several new provisions that worry environmentalists, along with some members who opposed the legislation.

These critics also say that the bill undermines a recent decision by a Wake County judge, who ruled that Duke Energy must immediately clean up groundwater contamination at its 14 coal-ash sites.

A map showing the 14 coal-ash sites across North Carolina. Duke Energy now owns Progress Energy’s former sites. Graphic courtesy N.C. DENR

Their opposition comes as state legislators are hurrying to complete their work on coal ash as they work to wrap up this year’s short legislative session. Coal-ash legislation has remained a high priority for lawmakers, precipitated by the massive spill of coal ash into the Dan River in February.

Tracking contamination

Coal ash contains multiple toxic substances and is a byproduct of coal-fired power generation. In North Carolina, Duke stores the ash in wet, unlined ponds, which have leached the toxins into nearby groundwater, according to lawsuits filed by the state Department of Environment and Natural Resources.

Among the provisions added in the House version of the bill is one titled “amend compliance boundary provisions,” which makes several changes to the state’s groundwater rules.

Under current state rules, older facilities that contaminate groundwater must take “immediate action” to eliminate the sources of contamination. These are facilities that received pollution permits from DENR before Dec. 30, 1983, including Duke’s coal-ash ponds.

The facilities must also submit a “corrective action” plan to DENR. This plan details how the polluter will restore the health of groundwater. The rules also require the polluter to follow a schedule set by DENR.

But the rules are different for newer facilities. These facilities, which received their permits after Dec. 30, 1983, are not required to immediately eliminate sources of groundwater contamination.

This distinction was at the heart of a ruling by Wake County Superior Court Judge Paul Ridgeway, who, in March, ordered that polluters from older facilities, such as Duke, must take immediate action to eliminate the sources of groundwater contamination.

But the House’s coal-ash bill attempts to erase the distinction between older sites and newer sites, according to D.J. Gerken, a managing attorney with the Southern Environmental Law Center.

“I have hundreds of letters from the Department of Environment and Natural Resources to various violators and polluters, and the first sentence is, ‘If you have not already, you must take immediate action to eliminate the source of contamination,’” Gerken said.

“This provision genuinely does change the law – changes a well-accepted and well-applied law – as applied to all of those facilities.”

Fly ash, a portion of the ash generated when burning coal for fuel. Because coal ash can be used to make concrete, the House bill requires Duke to study the feasibility of its ash’s reuse in concrete. Photo courtesy American Coal Ash Association

The provision written into the bill says that, for polluters who violate groundwater standards, the N.C. Environmental Management Commission “shall require the permittee to undertake corrective action, without regard to the date that the system was first permitted,” to restore groundwater quality. Polluters would have to survey their contamination, then propose a plan and schedule to clean up groundwater. DENR would then have to approve this plan.

A process like that could take years.

By erasing the distinction between older and newer facilities, the bill would strike the requirement that older facilities immediately clean up their pollution, Gerken said.

This would apply to Duke’s ash ponds, and seemingly undermine Ridgeway’s order, he said. It would also apply to other polluters with older facilities, those who otherwise would have been required by law to immediately clean up their pollution.

Protecting municipal waste plants

Rep. Ruth Samuelson (R-Charlotte), vice chair of the House Environment Committee, said that the provision intends to protect municipal waste plants, which could be shut down in response to Ridgeway’s ruling.

“These compliance boundaries apply to every municipal waste-treatment facility,” she said, referring to the compliance boundaries that set spatial limits around a source of pollution. Groundwater standards may not be violated beyond this line.

“The intent of this language is to say, ‘We think you need to clean it up, and we think you need to keep it inside the compliance boundary,’” Samuelson said. “But you’re not going to have to shut down your waste-treatment facility. Or if you’re an industrial user, you’re not going to have to shut down your plant because you exceeded your compliance boundary.”

DENR has noted that a number of municipal plants could be affected by Ridgeway’s decision. Across the state, 226 municipal wastewater plants could be affected, according to a memo from Mitch Gillespie, DENR’s assistant secretary for the environment. (See story at bottom for a copy of the Gillespie memo.)

According to Gerken, legislators could have written the provision in a different way to create an exception for everything but coal ash.

Coal ash at the Dan River Steam Station, where the power plant’s pond spilled 39,000 tons of ash into the Dan River in February. Photo courtesy N.C. DENR

Rep. Pricey Harrison (D-Greensboro) was also suspicious of this language.

“It seemed like the provisions in this bill don’t provide any protection for Judge Ridgeway’s decision,” she said.

Flexibility for Duke and other changes

The House bill, unlike the Senate bill, also allows Duke to request an extension for the closure of its sites. Both bills require high-hazard sites to close by the end of 2019. Intermediate-hazard sites would have to close by the end of 2024 and low-hazard sites would have to close by the end of 2029.

Samuelson argued that this sort of flexibility is important.

“We have set deadlines. We feel like deadlines are important, and they drive the process to make sure things get done,” she said. “On the other hand, nobody has done this before.

“We wanted to put the variance language in there so that there was a way to accommodate the unforeseen in a very new system, but also to guarantee that that has a very public process.”

Both the Senate and House versions of the bill would establish a Coal Ash Management Commission. The commission would have final approval over the hazard classifications of ash ponds. It would also give final approval to Duke’s pond-closure plans.

In the House version of the bill though, the governor would appoint the chair of the commission. The Senate bill would have allowed commission members to appoint the chair.

The House bill would also locate the commission inside the Department of Environment and Natural Resources. The Senate version would place it inside the Department of Public Safety. Samuelson said that, with their work together, placing the commission inside of DENR would foster a closer working relationship.

Next steps

The debate over coal ash has been at once bitter and divisive, with memories of the February ash spill still at the forefront of legislators’ arguments.

In the House, debate over the coal-ash bill grew rancorous, as lawmakers tried to insert amendments that would classify their districts’ ash ponds as highly hazardous; this would require the ponds to be closed the soonest and with the strictest environmental protections.

Despite lawmakers’ pleas, the chamber voted down all of those amendments.

Now that the House has passed its version of the bill, the Senate may choose to approve the House’s version. If it does, the House’s bill will head to the governor for a signature.

The Senate may also choose to take the bill into a conference committee, where members of both chambers, meeting behind closed doors, would negotiate a compromise bill, potentially with new provisions. That bill would return to both chambers for approval. It would still require the governor’s signature.

2014 03 25 Mitch Gillespie Memo To NCDOJ (PDF)

2014 03 25 Mitch Gillespie Memo To NCDOJ (Text)

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Gabe Rivin

Gabe is our former environmental health reporter from 2014-2016. He is a former editor of The Cooperative Business Journal, and a former reporter for Inside Washington Publishers, where he covered federal...

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