Reactions vary after NC Senate proposes new coal ash plan

cjarvis@newsobserver.com jmurawski@newsobserver.comJune 16, 2014 Updated 1 hour ago

  • A work in progress

    Gov. Pat McCrory’s plan

    • Does not eliminate all 33 of Duke Energy’s coal ash ponds.

    • Requires closure plans within three months for the Riverbend, Asheville, Dan River and Sutton plants.

    • Requires disclosure of emergency plans for coal ash ponds.

    • Shortens time for public notification of spills, from 48 to 24 hours.

    • Strengthens rules for how ash is used in construction sites or in other material.

    • Identifies and addresses illegal wastewater discharges at coal ash ponds.

    • Strengthens control of solid waste disposal involving coal ash.

    Senate’s plan

    • Closes all unlined coal ash ponds and eliminates wet ash disposal within 15 years.

    • Requires coal ash ponds at the Riverbend, Asheville, Dan River and Sutton plants to be excavated and close as soon as practicable, no later than 2019.

    • Categorizes the remaining ponds by three levels of risk. High-risk ponds would be closed by 2019, intermediate risk by 2024 and low-risk by 2029. High- and intermediate-risk ponds cannot be left where they are and capped. They would have to be stored in lined landfills or recycled. Low-risk ponds could be capped in place if the Department of Environment and Natural Resources and a new coal ash commission agree.

    • Creates a commission to review and approve risk classifications and closure plans, and make policy recommendations. The nine-member commission would be comprised of six members appointed by the General Assembly and three by the governor.

    • Creates 29 new positions for coal ash regulation oversight, with 25 going to DENR and four to the new commission, to be paid for by a new fee on utilities.

    • Requires utilities to study markets for the commercial use of coal ash.

    • Requires future coal ash disposal be managed in new or existing lined landfills with increased groundwater monitoring. Requires utilities to divert stormwater away from ash ponds, and phase out the disposal of wet ash within five years. It would be illegal to build or expand wet coal ash ponds.

    • Utilities would not be allowed to recover costs from damage caused by spills.

    • Coincides with the governor’s plan on three points: strengthen regulation of coal ash as structural fill, require utilities to address current and future ground, surface and drinking water contamination, and require more inspections of dams.

— Leaders of the state Senate who unveiled a coal ash bill Monday said it would be the most comprehensive regulation of the power-plant residue in the country. Environmentalists said it was better than the governor’s plan, but still had loopholes that could endanger water supplies.

The bill would close all 33 coal ash storage ponds in the state within 15 years – twice as fast as Duke Energy says it would be able to – set up an appointed commission to oversee closure plans, impose additional safeguards, and encourage the exploration of alternate uses of coal ash in construction as a way to dispose of the more than 100 million tons of the material – far more than can be buried in landfills in North Carolina or nearby.

Republican senators and the head of North Carolina’s environmental protection agency were cautiously receptive to the bill, which was presented to them in a committee on Monday by Senate President Pro Tem Phil Berger and Sen. Tom Apodaca of Hendersonville.

Duke Energy called the proposed closure timeline an “aggressive” plan that would present “significant challenges” for the company. The biggest challenge would be finding a place to safely store the coal ash.

Duke Energy, in a court filing earlier this year, said there is no lined landfill that is big enough anywhere in North Carolina or its neighboring states. Complicating matters, if the federal Environmental Protection Agency classifies coal ash as a hazardous waste later this year, disposing of it in any existing landfill would be impossible and transporting it would be almost impossible, Duke said.

Apodaca, who has a coal plant in his district, acknowledged the deadlines were aggressive, but he said they could be met.

“We would be doing less than we need to if we did anything less than adopting an aggressive schedule,” he said.

Apodaca said provisions in the bill that require DENR, the Environmental Management Commission and utilities to take a detailed look at alternate uses of the material besides storage are key components.

“We’ve got to find other uses for it than just storing,” Apodaca said. “That’s what we really, really want to do with this bill. The plain fact is we just don’t have enough room to bury it all, at this point.”

Far beyond governor’s plan

Department of Environment and Natural Resources Secretary John Skvarla, who earlier this month appeared before the Senate natural resources committee to promote Gov. Pat McCrory’s coal ash plan, told members he could support this version with some adjustments.

“The governor in his blueprint created a solid foundation under the house,” Skvarla said. “The Senate has created the nucleus of building a pretty good house on that foundation. … All in all, I think this is a very, very significant and solid step forward.”

The 44-page legislation goes far beyond the governor’s plan. Its 27 sections spell out an extensive regulatory scheme that accelerates removal of the four most harmful coal ash ponds, which are discharging potentially contaminated material into rivers, while allowing the lowest-risk sites to remain covered where they are.

“This represents the most comprehensive effort to address the issue of coal ash in the nation,” Berger said. “It’s something that goes a long way toward protecting our water, and protecting our people from the environmental risks and dangers of coal ash.”

‘Tallest midget in the circus’

Lisa Evans, an attorney for the California-based advocacy group Earthjustice, which tracks coal ash pollution around the country and has pushed the EPA to impose stricter regulations, dismissed any claim that this would be the toughest regulation in the country.

“Even if it did, state regulations are so deficient it would simply be the tallest midget in the circus,” Evans said. “The presence of numerous loopholes would take away even that title.”

Who would pay?

The issue wasn’t on politicians’ radar until February, when a Duke plant in Eden spilled 39,000 tons of coal ash and 27 million gallons of wastewater into the Dan River. Berger lives in Eden.

The legislation would require Duke to pay to clean up coal ash spills without asking ratepayers to pick up the cost, which the utility has already said it would do for the Dan River spill in February. But it leaves unclear whether Duke or its customers would pay to drain the ponds and close them. Duke has said it would ask the Utilities Commission to let it pass those costs to customers.

An override provision

Robin Smith, who retired from DENR in December 2012 as assistant secretary for environment, said one problem with the the bill is that it leaves Duke with an option to make the case that the ash should be left at the current sites in unlined pits.

Smith said another provision that jumped out at her would authorize the newly created Coal Ash Management Commission – mostly appointed by the legislature – to override any DENR decision on coal ash disposal if the commission deems that “the negative impacts to electricity costs” outweigh the benefits to public safety and to the environment.

The state chapter of the Sierra Club said the bill failed to establish enforcement measures or safeguards to keep water unpolluted while the plants are closed. The Southern Environmental Law Center said the bill lacks standards for determining which sites are closed first, and that DENR can’t be trusted to require Duke to adequately clean up its other 10 sites. SELC and DENR are involved in contentious litigation over the agency’s enforcement of coal ash regulations.

Senators on the committee who spoke Monday were generally supportive of the bill, and several praised its scope. Apodaca said the bill would get a full airing. The committee will vote on it on Tuesday, and then it will make a stop in the finance or appropriations committees to deal with its financial implications, and then likely go to the full Senate next week.

Jarvis: 919-829-4576; Twitter: @CraigJ_NandO

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