Gov. Pat McCrory's general counsel, Bob Stevens, tells legislators Tuesday evening that if they pass the bill in its current form, McCrory would veto it, and sue if that veto is overridden.
Gov. Pat McCrory's general counsel, Bob Stevens, tells legislators Tuesday evening that if they pass the bill in its current form, McCrory would veto it, and sue if that veto is overridden. Photo credit: Rose Hoban.

Not a week after the state Department of Environmental Quality came up with plans to address emptying coal ash impoundments, legislators had a different idea.

By Catherine Clabby

In a move supported by Duke Energy, Republican legislators on Tuesday took steps to decrease state environmental agency control over how the utility cleans up 100 million tons of coal ash stashed across this state.

And once again, providing new drinking-water sources to people living near the waste was front and center.

A bill emerging from the House Committee on Rules, Calendars and Operations late Tuesday would require Duke to submit plans for new water supplies for hundreds of people living near its coal ash by Aug. 1. Linking well users to municipal water systems would be preferred. But if a state infrastructure authority says the cost would be prohibitive at given locations, installing filtration systems will be allowed.

Submitted by Rep. Chuck McGrady (R-Hendersonville), the bill would also revive the state’s coal ash commission, first created in 2014 with passage of the Coal Ash Management Act but disbanded as the result of a lawsuit.

The commission, not environmental regulators, would rule just how aggressively Duke must clean up coal ash on 10 of 14 properties storing waste.

The utility supports McGrady’s bill, Duke spokesman Paige Sheehan said. The coal ash management commission was intended to provide oversight and make recommendations regarding a number of safety, environmental and cost factors in the closure of North Carolina’s ash basins, she said.

“The commission is the only entity charged under CAMA in considering the potential impact to electric rates in reviewing basin rankings and closure planning,” she said.

Bill sponsor Rep. Chuck McGrady (R-Hendersonville) speaks to members of the media after the committee hearing Tuesday evening. At one point he said, “If I can get water supplied to the people who are wanting water and are most affected … this bill does that.” Photo credit: Rose Hoban

Out with the old

If approved, McGrady’s legislation could scuttle the state Department of Environmental Quality’s coal ash disposal rankings, released just last week. Based on current conditions and available data, DEQ concluded that all Duke coal ash stored in ponds and impoundments across the state poses potential health and environment risks and should be dug up.

DEQ also wanted legislative approval in 18 months to soften that requirement if Duke provided new drinking-water sources to neighbors and completed needed dam repairs on its properties.

Duke Energy opposed the latest DEQ risk assessment, saying it is convinced that it’s safe to cap but leave waste where it rests in impoundments at 10 locations. The Coal Ash Management Act required excavation at four other sites. In total, there are 32 coal ash dumps on 14 Duke Energy properties around the state; state law required excavation at eight.

The original coal ash commission, intended by legislators to be the final state authority on Duke’s cleanup, was dismantled after Gov. Pat McCrory and two former governors successfully challenged its constitutionality. In the court case McCrory v Berger, the governors argued that legislative control of the panel usurped powers reserved for the state’s executive branch.

Gov. Pat McCrory’s general counsel, Bob Stevens, tells legislators Tuesday evening that if they pass the bill in its current form, McCrory would veto it, and sue if that veto is overridden. “My message is, let’s don’t relive history here,” he said. Photo credit: Rose Hoban

The bill introduced Tuesday would give McCrory the power to appoint five people to be confirmed by the legislature and allow legislators to appoint two.

McCrory’s appointees would have to bring expertise in waste management, medicine or public health, power-supply planning and engineering, costs associated with electricity generation and hydrology and geology.

One legislative appointee would be recommended by the House leader and be affiliated with a conservation organization. The other, recommended by the Senate leader, can simply be a citizen.

Nonetheless, McCrory’s general counsel, Bob Stevens, told legislators he believed that based on his reading of the court ruling in McCrory v Berger, the bill did not give the governor enough control.

He threatened a gubernatorial veto if the legislature passes the bill in its current form.

The bill would also reopen acceptance of public comments on coal ash cleanup requirements, a process the Department of Environmental Quality had already closed.

McGrady, a co-chairman of the state Environmental Review Commission, on Tuesday said it’s vital to have people independent of DEQ reviewing and assessing its plans for coal ash.

“We need a coal ash commission that has a separate set of expertise and hopefully more information. Maybe they’ll bless everything the department says, maybe it will not,” McGrady said.

‘Pinky swear’

DEQ Sec. Donald R. van der Vart slammed McGrady’s proposal for lacking firm deadlines by which Duke must provide neighbors with new, permanent water supplies. He also faulted the bill’s silence on needed repairs of dams that separate ash from waterways.

DEQ Sec. Donald van der Vaart spoke to members of the House Rules Committee Tuesday evening, even as committee Chair Rep. David Lewis (l, facing forward) spoke with Senate Rules Chair Tom Apodaca. Photo credit: Rose Hoban

“Everybody believes that for those uncertain wells, this is a good solution. I’m here to say that part of the bill is quite right,” van der Vart said. But he quickly added that the timing of the fix is too open ended and doesn’t hold Duke accountable enough.

“All this is asking for is a kind of pinkie swear,” he said, adding that DEQ wants to be more certain that water supply lines get hooked up in a timely manner.

Rep. Larry Hall (D-Durham), the House minority leader, voiced a similar critique.

“The bill says you have to have a plan by August. It doesn’t say that you have to have water to people by then,” Hall said. “People can’t drink a plan, they need to drink clean water.”

McGrady stressed that he is willing to make changes to address concerns raised by DEQ and others.

New water lines

Duke Energy disclosed just last week that it is considering providing new sources of drinking water to people using wells and living near its coal ash waste, but did not reveal what it was considering at specific locations.

A draft study that the utility submitted May 17 to DEQ shows scenarios worked up for six locations where Duke now distributes the largest amounts of bottled water to those neighbors dependent on well water.

The preliminary study by Dewberry Engineers Inc., based in Virginia, proposes extending municipal water lines to neighbors near five sites, including the Allen Steam Station in Gaston County, Belews Creek in Stokes County, Buck Steam Station in Rowan County, Rogers Energy Complex (the former Cliffside Steam Station) in Cleveland County and Marshall Steam Station in Catawba County.

Due to a 14-mile distance between existing water lines and neighbors using well water near the Roxboro Power Station in Person County, the draft study recommends creating a community well system for those living nearby. Duke has not yet decided whether it would follow the Dewberry recommendations.

“We continue to see no indication that ash basins have influenced plant neighbors’ wells,” Sheehan said. “We believe giving plant neighbors the assurance of long-term water quality gives them peace of mind and benefits North Carolina because we preserve the range of options to safely close ash basins.”

Jim Behmer, director of Salisbury-Rowan Utilities, said his water system could accommodate adding the 95 properties Duke Energy has identified by its Buck Steam Station.

If Duke, on its own or with partners, extends water to reach people now dependent on well water, they would be receiving water that exceeds both state and federal safety standards, he said.

“We’re willing partners,” Behmer said.

Rose Hoban provided additional reporting.

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Catherine Clabby

Catherine Clabby (senior environmental reporter) is a writer and editor. A former senior editor at American Scientist magazine, Clabby won multiple awards reporting on science, medicine and higher education...