Coal ash at the Dan River Steam Station

Legislative leaders say their coal ash legislation will protect the public’s health. But environmentalists argue that it doesn’t do enough to prevent groundwater contamination.

By Gabe Rivin

The General Assembly has approved legislation to address coal ash, sending a bill to the governor that legislators called the first of its kind in the nation, but which environmentalists warned would slow the cleanup of toxic coal ash.

Coal ash legislation, prompted by a major spill in February into the Dan River, had been a high priority for legislators in this year’s short legislative session, which began in May. But passage of a comprehensive bill this year appeared unlikely after a lengthy debate over the state budget left legislators with little time to reconcile their views on different versions of the bill.

Still, a bicameral conference committee quietly negotiated a final bill, and on Wednesday afternoon the House voted 84-13 to approve the Coal Ash Management Act. The Senate, voting at 7:30 that evening, approved the bill 38-2, sending it to McCrory for his signature.

The final bill includes several tweaks to the House and Senate bills, but leaves their major provisions intact.

Under the bill, Duke Energy will have to close the last of its ash ponds by 2029. The ponds at four sites – Dan River, Riverbend, Asheville and Sutton – are required to close by 2019 and meet strict cleanup requirements.

Classifying risk

But the timetables and cleanup requirements for Duke’s other 10 sites will be left to a new Coal Ash Management Commission, which will have final approval over recommendations made by the N.C. Department of Environment and Natural Resources.

This is an aerial shot of the Dan River Steam Station
An aerial shot of the Dan River Steam Station, the power plant from which ash spilled into the Dan River. Duke stores coal ash, a byproduct of electricity generation, in wet ponds. Photo courtesy Duke Energy

DENR will propose to classify each site as a high risk, an intermediate risk or a low risk. Duke will have to close its high-risk sites by 2019, meeting the strictest cleanup requirements, which include moving the ash to lined landfills.

Intermediate-risk sites will have the same cleanup requirements, but will be required to close by 2024.

Low-risk sites will be required to close by 2029 and will have the greatest flexibility in cleanup methods.

These sites will be allowed to install a barrier, or “cap,” over the top of the ponds, leaving the ash in place. Duke will be required beforehand to remove as much water from the ponds as possible.

Environmentalists say that this idea stems from good intentions.

“The idea behind putting a cap on a site – whether it’s a landfill or whatever – is to stop water from entering the waste,” said D.J. Gerken, a managing attorney with the Southern Environmental Law Center, which has sued Duke for groundwater contamination. “You stop rainwater and surface water from draining into the open landfill – ash pit – because once it goes in, it interacts with the waste. It gets contaminated and comes out the bottom side as groundwater.”

But many, if not all, of the ponds were dug below the water table, the highest level of subsurface water, according to Gerken. That’s allowed the groundwater to flow freely into and out of the unlined ash ponds, carrying away the ash’s constituents, he said.

Coal ash, a toxic byproduct of burning coal for energy, has sat in unlined ponds in North Carolina for decades. Groundwater, which residents draw from private wells, can be highly carcinogenic when tainted by coal ash, according to a risk assessment by the U.S. Environmental Protection Agency.

The unchecked migration of water in and out of ponds partly explains how the ash’s constituents find their way into the water. In an apparent recognition of this problem, the legislative conference committee added language to the final bill that addresses water-table levels. High-risk and low-risk ponds that sit above the water table, the bill says, will have to be dewatered.

But ponds at or below the water table will need to be dewatered “to the maximum extent practicable.”

This language, Gerken said, acknowledges that little can be done about ponds dug below the water table.

“In that provision is a recognition that the first and most logical thing to do – drain the water out of the ponds – may not even be technically possible as long as ash is left where it’s sitting.”

Redundant groundwater requirements

Legislative leaders trumpeted the coal ash legislation as protective of the public’s health and the first of its kind in the U.S.

This bill is “the most comprehensive, aggressive and science-driven mitigation plan in the entire country,” said Sen. Phil Berger (R-Eden), the Senate’s Pro Tempore, in a press statement.

Duke Energy also applauded the bill.

“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,” said Lynn Good, president of Duke Energy, in a press statement.

Yet a closer look at several of the bill’s provisions raises questions about the newness of these requirements.

The bill, for example, requires Duke to monitor subsurface waters near its ash ponds. If Duke finds that a pond has contaminated water, it must propose and implement a plan to restore the water’s quality.

Tom Reeder, director of the water-quality division at DENR, defended this process at a June 5 Senate committee hearing, calling it a “comprehensive solution” for all 14 Duke sites.

But that process is already written into law, North Carolina Health News has reported.

And, citing that law, DENR has already sued Duke, in attempt to force Duke to clean up groundwater contamination at all of its sites, according to Drew Elliot, DENR’s communications director.

Photo of U.S. Fish and WIldlife Service staff taking core samples
Staff from the U.S. Fish and WIldlife Service take core samples following the spill of coal ash into the Dan River. Photo courtesy U.S. Fish and Wildlife Service

The bill, unlike former versions, acknowledges Duke’s current obligations. It says that groundwater monitoring and restoration are required “in addition” to any previous obligations.

But environmentalists say the bill’s intention is not what it seems to be. By recreating an existing regulatory process, the coal ash bill gives Duke an extension on its current legal obligations, Gerken said.

And the final bill, like the House’s version, also invalidates a key legal distinction that a Wake County Superior Court judge relied upon in March, in a decision that forced Duke to take immediate action to clean up its groundwater contamination. Current state rules require groundwater polluters at older facilities to take “immediate action” to eliminate sources of contamination, while newer facilities do not face the same requirement.

The coal ash bill does away with that distinction, a move that could challenge Ridgeway’s decision.

Bill preserves language from House and Senate

Under the bill, Duke will be prohibited from building new ash ponds or expanding existing ponds. The bill also requires Duke to store its coal ash as “dry ash,” not in the form of a liquid sludge, as it has at other ponds.

The bill allows for the eventual use of coal ash as structural fill. Coal ash can be used to create structural foundations and to build roads. This use, though, is under a moratorium until next August, so that DENR and others can study its use. The exception is for projects that use liners and other environmental protections, as well as road-construction projects by public agencies.

The Coal Ash Management Commission reflects its makeup in the House and Senate versions of the bill. The commission will have nine members, including a specialist in waste management and a “licensed physician or a person with experience in public health.”

The General Assembly will appoint six of the nine members. The legislature’s outsized power to appoint commission members – normally an executive prerogative – had caused consternation within McCrory’s administration, though the final bill allows the governor to appoint the commission’s chair.

The bill does allow the public to have a voice in the coal ash pond closure plans. DENR is required to hold a public hearing after it proposes a designation for each site’s hazard level.

The final decision for each site will remain in the hands of the Coal Ash Management Commission, which can disapprove of a plan if it finds that it’s not economically feasible.

After the commission approves the plan, Duke can request up to a three-year extension on its deadline. The commission will decide whether to approve the request, and will only grant one extension per site.

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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...