Duke Energy's Asheville Steam Electric Generating Plant coal ash ponds. The DEQ has ranked the ponds as risk.
In this image of the Asheville Steam Station, the coal ash basins are clearly marked. Lake Julian is the water body in the top right of the image. The French Broad River is visible adjacent to the red dotted line furthest to the left. Photo courtesy Duke Energy.

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A bill passed by both chambers of the legislature Tuesday would get new water to residents living near coal ash pits. Gov. Pat McCrory has threatened a veto.

By Catherine Clabby

State lawmakers passed legislation Tuesday requiring Duke Energy to provide new, permanent drinking water to hundreds of properties located within half a mile of the utility’s coal ash waste impoundments.

If contamination of groundwater tied to coal ash is deemed to put well water at risk farther away, Duke will be obliged to provide owners of those wells with new water supplies, too.

Rep. Chuck McGrady (R-Hendersonville)

“At the heart of this bill, permanent alternative water will be supplied for people living near coal ash,” said Chuck McGrady (R-Hendersonville), who led passage of the bill.

“That’s a really significant thing that is occurring here. We’re doing something that the law, up till now, would not allow us to do,” McGrady said.

The bill also would install a newly constituted coal ash management commission, instead of state environmental regulators, to oversee the cleanup of 100 million tons of coal ash.

At least for now.

Veto possible

Despite passage of McGrady’s legislation Tuesday, just how North Carolina’s Duke Energy plans to clean up the industrial waste remains unclear.

In one possible development, Gov. Pat McCrory, who opposes shifting control from his administration’s environmental officials to a legislature-approved commission, could veto rather than sign the bill. But a veto might not be viable because sizable bipartisan majorities approved the bill. If that is the case, the governor could once again sue.

The original Coal Ash Management Commission was dismantled after McCrory and two former governors successfully challenged its constitutionality. In the court case McCrory v Berger, the governors successfully argued that legislative control of the panel usurped powers reserved for the state’s executive branch.

Duke Energy’s Asheville Steam Electric Generating Plant coal ash ponds. The DEQ has ranked the ponds as high risk. Photo courtesy Duke Energy.

The new legislation gives the governor more say over who sits on the commission. Nonetheless, he made his opposition clear Tuesday.

“This legislative vote is not good for our environment or for the rule of law in North Carolina,” McCrory said in a written statement.

Under the legislation passed Tuesday, most appointees to the seven-member body would be selected by the governor; all would be approved by the legislature. If appointees are not named, the legislation provides a Plan B: The Environmental Management Commission, which McGrady co-chairs, will take over review and approval of risk classifications and ash-waste impoundment closure plans.

Shifting timelines

The new bill, if it becomes law, sets a timeline for Duke’s committing to liberating people living near coal ash dumps from using bottled water for drinking, cleaning, and bathing at their homes.

The legislation does not immediately resolve a key question about the scale of cleanup to be required of the impoundments, most of which are unlined pits that can potentially leach toxins into the ground. State law says eight out of Duke Energy’s 33 coal ash impoundments must be dug up. Whether excavation will required of the remaining 25 remains uncertain.

By October, Duke must submit a binding agreement to the state agreeing to provide well owners with new water supplies. By September 2017, Duke will need to submit specific plans for either hooking properties to municipal water supplies or providing full-home filtration systems.

The legislation also reopens a period for public comment on state Department of Environmental Quality assessments of risk posed by individual coal ash waste impoundments. DEQ would be obliged to accept feedback until Aug 1. By Sept. 1, DEQ must submit risk classifications to the newly formed coal ash commission for impoundments on the 10 sites not classified as high risk.

‘The key is time’

This procedure is not at all what DEQ had planned. In mid-May, the agency ranked 25 impoundments at 10 locations as posing an intermediate risk. That would require Duke Energy dig up all these coal ash sites, in addition to four others already designated as high risk by the 2014 Coal Ash Management Act .

DEQ wanted legislators to accept those rankings as tentative, however, and give the agency another 18 months to modify them if Duke Energy provided alternative drinking water sources to neighbors and made required repairs to dams on some sites.

Duke Energy opposed DEQ’s intermediate rankings and has said it is safe to leave all coal ash where it is and cap it, rather than dig it up. A statement issued by Duke Energy Tuesday reiterated the company’s support of McGrady’s bill.

Utility officials see value in a commission that considers costs to energy customers when ruling on cleanup requirements, two company representatives have said. And company officials support the new legislation’s emphasis on encouraging recycling of coal ash.

“We are open to considering a variety of reuse options for coal ash, including use in concrete and other construction materials, and as structural fill material,” Duke Energy spokesman Jeff Brooks said. “The key is time. If we can have the time to properly develop and implement reuse strategies, we can productively use ash that would otherwise end up in a long-term storage site.”

Ongoing debate

Frustration with DEQ was a key reason that several legislators, including some Democrats, gave for supporting the bill Tuesday.

Rep. Pricey Harrison (D-Greensboro) said she does not trust DEQ to manage the coal-ash cleanup well. Harrison’s opposition is linked in part to DEQ’s involvement in a controversial reversal of do-not-drink advisories sent to people near coal ash impoundments who are dependent on drinking wells where dangerous compounds associated with the waste have been detected.

Informed oversight of the department is needed, she said, as is providing new water supplies to people living near coal ash. “Being dependent on bottled water to drink, cook, and bath is no way to live in 2016,” Harrison said.

The debate over the risk from small amounts of the contaminants hexavalent chromium and vanadium, both associated with coal ash, remains very much alive. Both have been detected in more than 300 wells near Duke properties holding coal ash.

Before Tuesday’s vote in the House floor, Rep. Pat McElraft, (R-Emerald Isle), said she thinks someone with the state should tell well owners that their water does not pose health risks, despite the fact that the state issued do-not-drink advisories related to contamination in 2015 and withdrew them in 2016. The standards used to prompt the warnings, she said, were too low.

“Hopefully we’ll have someone come in and say there was no pollution,” McElraft said, adding that if her family had been affected, “I’d like to know that for five years or 10 years that I was not drinking polluted water.”

But a sworn deposition by the state Health Director Randall Williams suggested more warnings could be forthcoming, at least to a fraction of well owners.

Some levels of total chromium detected in wells tested near coal ash are higher than those deemed acceptable in state groundwater rules, he said in a deposition released by the Southern Environmental Law Center. Specially, Williams referred to measurements of all chromium at levels higher than 10 parts per billion.

“Anything over 10, whether it is total chromium or hexavalent chromium, we are going to say, ‘Do not drink your water’,” Williams testified.

The Southern Environmental Law Center opposed the legislation passed Tuesday. It favors getting well owners new water supplies but also supports keeping the DEQ risk rankings that would require Duke Energy to dig up all of its coal ash.

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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...