Gov. Pat McCrory objected Tuesday to the legislature’s plan to name a new commission to oversee hazard rankings and closures of Duke Energy’s 33 North Carolina ash ponds.
The nine-member Coal Ash Management Commission is part of an N.C. Senate bill that came before the House environment committee.
McCrory’s general counsel, Bob Stephens, warned the committee that the commission violates the separation of powers between the legislative branch, which makes law, and the executive branch that enforces it.
Stephens said McCrory doesn’t object to creating the commission but that it “needs to be appointed by the executive branch.”
The Senate measure gives the legislature six of the nine appointments and McCrory only three.
Asked after the meeting whether the issue could bring a McCrory veto, Stephens said “no decision has been made.”
But, he added, “Gov. McCrory is as concerned about the issue of separation of powers as any issue I’ve seen him on. It’s not that he’s concerned for himself. He’s concerned for future governors.”
Rep. Mike Hager, R-Rutherford, a committee vice chairman, said Stephens is wrong. Hager noted that the legislature also named the state Mining and Energy Commission, which is writing rules for fracking for natural gas.
“I think we’ll have to have further discussion of this,” Hager said.
The committee meeting was the House’s first discussion of an ash bill the Senate quickly approved on June 25. A February ash spill on the Dan River prompted the legislation.
The measure orders Duke to close its ponds in stages, depending on their perceived risks, between 2019 and 2029. The Senate built on a framework proposed by McCrory, whose plan did not propose an ash commission.
House members plan their own tinkers to the bill. The environment committee will meet Wednesday morning with plans to vote on a substitute measure.
Rep. Chuck McGrady, the Hendersonville Republican in charge of ash legislation in the House, told the committee he was surprised by the Senate’s creation of the ash commission.
McGrady said the Senate apparently concluded the N.C. Department of Environment and Natural Resources, which has been accused of ignoring long-standing pollution problems from ash, lacked “the credibility to act on this.”
“It’s a creative solution to the problem I also perceived as to how to make sure this gets done on the timetable the House and Senate want to put into place,” McGrady said.
Minority Democrats on the committee questioned aspects of the bill that environmentalists say benefit Duke.
Illegal seepage from ash-pond dams, for example, can be either corrected by Duke or incorporated into a power plant’s wastewater discharge permit. Liners to protect groundwater from the potentially toxic metals in ash aren’t required for structural fill sites, which level ground for building, that use less than 10,000 tons of ash on an acre.
The measure also is silent on whether Duke’s customers will pay to close the ash ponds. Duke has said it will ask the state Utilities Commission for permission to pass to consumers costs estimated at up to $10 billion.
“We can make a decision that the public shall not bear the costs,” said Rep. Paul Luebke, D-Durham. “That is something we can do before any of the detailed studies” on closing the ponds.
Rep. Ruth Samuelson, a Charlotte Republican, said “the Utilities Commission and the (consumer advocacy) Public Staff need to look at this. I don’t feel it’s something that we need to step in on.”
Environmental groups urged House members to go further than the Senate, which mandated that ash be removed from ponds at only four of Duke’s 14 coal-fired power plants.
Ash at other sites could be left in place, drained of water and capped, or the ponds converted to lined landfills.
“The single most important challenge before the House is to make changes to ensure that the coal ash at all sites is permanently isolated from water,” said Molly Diggins, state director of the Sierra Club. “All methods of closing the ponds must be shown to be as effective as removing the ash.”
Duke official George Everett noted that the company has already retired half of its 14 coal plants in the state and is moving away from ash ponds at the other plants. Duke has said the 15-year timeline for closing the ponds might be too short.
“We’re looking for a rational approach to prioritizing each site and a rational cleanup plan for each site,” Everett said.