Legislators Take Another Swing at Regulating Coal Ash Cleanup

By Catherine Clabby

As this year’s legislative session winds down, lawmakers are making yet another move to change the rules Duke Energy must follow to clean up the coal ash stashed at more than a dozen utility properties across the state.

The bill, passed by the Senate Tuesday, would keep a requirement that Duke Energy provide new, permanent drinking-water sources to people living near coal ash impoundments. That’s intended to eliminate the risk that chemicals in coal waste could contaminate drinking water wells, a danger now feared by some but not yet documented.

Deborah Graham (left) of Dukeville and Amy Brown (right) of Belmont received "do not drink" letters last year only to receive subsequent letters saying they could drink their well water. The two attended Duke Energy's stockholders' meeting this week. Photo courtesy of Amy Brown. — Deborah Graham (left) of Dukeville and Amy Brown (right) of Belmont are among hundreds of homeowners who have complained about the burden of having to use bottled water. Photo courtesy of Amy Brown.

The new language would also mandate that Duke, where needed, repair and maintain dams at sites where they keep coal ash from reaching streams, rivers, and lakes. It also requires that Duke Energy identify sites where some of the coal ash could be recycled as raw material to make cement.

Environmentalists and some legislators on both sides of the aisle have expressed support of all of those provisions.

But the bill would also simplify the steps that Duke Energy must take to have impoundments at some sites designated as posing low risks to people’s health or the environment. Low-risk designations could allow the utility to skip digging up waste on some properties, allowing Duke instead to cap it, possibly in unlined pits where it was originally stored.

This proposed trimming of what must be evaluated when assessing an impoundment’s risk had Rep. Chuck McGrady (R-Hendersonville), a Republican architect of the state’s original 2014 coal-ash clean-up legislation, vowing Tuesday not to support the new bill.

“The new bill, upon provision of water and attention to issues related to dam safety, will automatically reclassify the remaining basins as low risk, which potentially means they will be capped and left in place,” McGrady said.”The original legislation anticipated that there was no one-size-fits-all remedy here. Now we’ve fallen back into that.”

NC Sierra Club speaks out against new bill

Some environmentalists agree with McGrady, a former national Sierra Club head with a long history of environmental advocacy.

“This bill abandons the idea that risk to groundwater and surface water should determine closure methods and timelines,” said Molly Diggins, state director of the NC Sierra Club.

Diggins said that statute currently requires the state to base coal ash classifications and cleanup schedules on risks to public health and safety, along with the need to protect the environment.

“This measure takes away agency discretion to classify a site as high or intermediate risk if public water supply hookups have been provided and structural issues addressed,” Diggins said in a written statement.

Duke Energy sites	DEQ May 2016 risk ranking	House bill 630 ranking
Asheville Steam Station	high	high
Dan River Combined Cycle Station	high	high
Riverbend Steam Station	high	high
L.V. Sutton Energy Complex	high	high
H.F. Lee Energy Complex	intermediate	intermediate
Cape Fear Steam Electric Plant	intermediate	intermediate
W.H. Weatherspoon Power Plant	intermediate	intermediate
Roxboro Steam Electric Plant	intermediate	low
Allen Steam Station	intermediate	low
Belews Creek Steam Station	intermediate	low
Buck Combined Cycle Station	intermediate	low
James E. Rogers Energy Complex	intermediate	low
Marshall Steam Station	intermediate	low

Data source: NC Department of Environmental Quality. According to a DEQ spokesman, low ratings proposed in the new bill are dependent on Duke Energy proving water to neighbors and making needed dam repairs.

The bill also eliminates the Coal Ash Management Commission. Diggins argued that the panel was created so that experts could conduct independent scientific and technical analysis of the sites.

Duke Energy supports the new bill, utility spokesman Jeff Brooks said. The legislation will require wide government oversight of the risks posed by impoundments, he said.

“We are still subject to all of the monitoring and reporting requirements in the Coal Ash Management Act as well as requirements of the many permits that define the work to maintain and close our ash basins,” Brooks said.

McGrady said he understands that leadership of his party has had to craft compromise language on this topic acceptable to multiple groups, including Gov. Pat McCrory, leaders of the state Department of Environmental Quality and other legislators.

Newest attempt to solve knotty problem

How to be both protective and practical with rules for Duke Energy to follow in cleaning up 100 million pounds of coal ash is a complex and contentious issue in North Carolina. This new legislation is, in part, the latest response to that.

The 2014 legislation that McGrady helped shape called for the creation of the Coal Ash Management Commission to create a roadmap for state regulators’ oversight of the cleanup.

But that original commission was dismantled after McCrory and two former governors successfully challenged its constitutionality in a lawsuit. They argued that when the legislature created the panel, it usurped powers reserved for the executive branch. This week’s bill would modify legislative appointments to commissions in two other domains, to oversee mining, and oil and gas exploration.

Earlier this month, McGrady ran a bill that would have re-established the Coal Ash Commission, after giving McCrory more control over its appointees. In addition, it would have required Duke Energy to provide coal ash impoundment neighbors with new water supplies, and it would have reduced the clout of the state Department of Environmental Quality, part of McCrory’s administration, in overseeing the cleanup of coal ash.

McGrady found wide bipartisan support among his legislative colleagues for that bill because of their frustration with DEQ, especially after the department’s controversial collaboration with state health regulators that withdrew do-not-drink advisories to people dependent on well water near coal ash impoundments. But the governor vetoed that bill. Legislators backed off from an override, realizing it would likely lead to another court fight.

This new bill is a compromise between McCrory and the Republican leadership in the General Assembly.

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 in Feb. 2014. Duke stores coal ash, a byproduct of electricity generation, in wet ponds such as this one at sites around the state. Photo courtesy Duke Energy

DEQ Secretary Donald van der Vaart appeared Tuesday before the Senate Rules and Operations Committee, where the new bill was introduced. He thanked legislators for supporting his department’s leadership of managing the state’s coal ash cleanup.

After his appearance, he said the department will be stringent in assessing whether any coal ash can remain in the ground.

Groundwater and nearby surfaces waters will be monitored for contaminants, he said, stressing that even sites designated as posing low risk could be required to be excavated.

In addition, Duke Energy will be obliged to meet US EPA standards for its handling of coal ash.

“The ability for them to follow federal requirements is very good from an efficiency standpoint,” van der Vaart said.

Read all of our joint coverage with The Charlotte Ledger here.