Coal ash bill rewritten to avoid veto

State legislative leaders and Gov. Pat McCrory’s administration have written new coal ash cleanup regulations, avoiding a late-in-session override of the governor’s veto and the protracted court battle that would follow.

The bill surfaced in a Senate committee Tuesday afternoon and was sent to the full Senate without public discussion. The Senate approved it 44-4, and sent it to the House.

The new House Bill 630 concedes to McCrory’s objection to having an independent panel monitor Duke Energy’s cleanup at its 14 sites across the state, where coal residue is stored submerged in leaking basins. Senate leaders had said that oversight was needed because McCrory worked for Duke Energy for close to 30 years, a connection that dogged the governor after the 2014 coal ash spill into the Dan River.

Earlier this year the state Supreme Court ruled the legislature’s creation of the Coal Ash Management Commission was an unconstitutional overreach into the executive branch because the governor didn’t control it. The bill would leave regulation up to the state Department of Environmental Quality.

The proposal gives Duke Energy more time to clean up its sites if it upgrades its basin dams and provides permanent drinking water connections for neighbors of coal-fired power plants by October 2018. State environmental regulators would assess the progress the utility makes and determine which basins should be classified high, intermediate or low risk, which requires they close between 2019 and 2029.

Basins would have to be designated low-risk if their dams have been fixed and drinking water has been supplied to neighbors. Low-risk basins would not have to be excavated and the residue shipped to lined storage, but could remain where they are with a permanent cover.

The closest power plant to the Triangle, the Cape Fear Steam Station in Chatham County, has been designated intermediate risk. It must be closed and excavated as soon as practicable, no later than 2028, under a court settlement.

Four other sites have already been designated as high-risk and must be excavated. That leaves seven sites yet to be classified.

Although the legislature has enough votes to override the veto, legislative leaders decided to work with the governor to avoid a prolonged court battle, and to get clean water to hundreds of well owners who live near Duke Energy plants.

Those people have been living on bottled water that Duke has voluntarily provided for more than a year, although the company notes there is no definitive link between its sites and elevated levels of vanadium and hexavalent chromium, which occur naturally and in coal ash, in well water.

Senate Rules Committee Chairman Sen. Tom Apodaca, a Hendersonville Republican, said lawmakers incorporated into the bill most of what the administration wanted. He said McCrory strongly supports it.

"We worked through this and I think we’ve got a product we can all be proud of," Apodaca said.

Environmental Secretary Donald van der Vaart thanked the committee for trusting his agency to do its job.

Several environmental organizations criticized the bill, saying it was a retreat from the previous stances by the legislature and Department of Environmental Quality.

"All this bill offers is more delay, more concessions to Duke Energy and more loopholes for Duke Energy to evade cleanup," said Frank Holleman of the Southern Environmental Law Center.

The Sierra Club said if the bill becomes law the focus would no longer be on public health and safety, but would tie classifications to Duke Energy’s ability to hook people up to municipal water systems and repair its dams.

Duke spokesman Jeff Brooks said the bill would provide the flexibility to clean up different sites based on science and engineering and the specifics of each basin. He said requiring the utility to excavate all of its basins would be prohibitively expensive.

"We wanted the science all along to determine what the best closure method was and this gives us that, provided that we address these issues of the alternate water supplies and the dam repairs, which are underway," Brooks said.

The bill also requires Duke Energy to establish three recycling centers in the state that can each process 300,000 tons of coal ash a year that can be reused to make other products.

This story was originally published June 28, 2016 at 12:25 PM with the headline "Coal ash bill rewritten to avoid veto."