Coal Ash Issue

NC coal ash commission begins big job crafting clean-up regulations

A concrete pipe below this coal ash impoundment at the Dan River Power Plant in Eden N.C. failed, releasing coal ash and ash pond water into the Dan River.
A concrete pipe below this coal ash impoundment at the Dan River Power Plant in Eden N.C. failed, releasing coal ash and ash pond water into the Dan River. U.S. FISH AND WILDLIFE SERVICE

North Carolina is about to start building a comprehensive regulatory scheme leading to the cleaning up and safe storage of coal ash.

How effective that turns out to be depends upon a new commission that meets for the first time Friday. Its members come from a variety of backgrounds that touch on the issue. But some environmentalists are concerned that it tilts toward industry representatives and doesn’t include advocates or people who live near the coal-fired plants.

The Coal Ash Management Commission, whose nine members are appointed by the governor and legislature, is charged with prioritizing – based on risk of pollution – the closing of 32 ponds where ash is stored at Duke Energy’s 14 coal-fired plants near rivers.

The coal residue in high- or intermediate-risk basins will have to be removed, but the low-risk ponds could be capped without being moved – a far cheaper but potentially hazardous option. That will be the tension between Duke Energy and state environmental regulators and advocates, with the coal commission in the middle.

“Obviously, it’s a brand-new area. The legislation touches on things that have never been done before,” N.C. Department of Environment and Natural Resources Secretary John Skvarla said last week.

Friday’s meeting convenes without a full commission because one of the Senate’s three appointments, an engineer and construction company owner from Eden named Scott Flanagan, has withdrawn.

State law gives the governor the authority to fill vacancies, but he has to appoint someone recommended by the speaker of the House or the president pro tem of the Senate.

The comprehensive coal ash bill gave the legislature six appointments and the governor three. That was a big enough problem for Gov. Pat McCrory that he let the bill become law without his signature.

McCrory said it was a separation of powers issue in which the legislature was overstepping its authority in several instances by creating boards and commissions and appointing most of the members. The legislature’s chief legal counsel said it was permissible. McCrory said he would ask the state Supreme Court for an advisory opinion, or file a lawsuit to test the legislature’s authority.

Commissioners will represent specific areas of expertise. McCrory has chosen as chairman Michael Jacobs, the founder and CEO of a merger advisory firm and UNC-Chapel Hill professor who specializes in business and government.

Getting up to speed

In an interview this week, Jacobs said the commissioners have a lot of work to do getting up to speed on the issue, as they bring different kinds of experience to their new task.

“Basically, it’s a group of people plucked out of their otherwise normal lives and asked to serve the state and citizens of the state in addressing an issue that’s important to all of us,” Jacobs said.

Jacobs said his background will guide him through addressing the concerns of a variety of people, running the process with integrity, and knowing how business and government interact.

“This is about a very big business and government,” Jacobs said. “There’s not a clear path to knowing how it’s going to play out. I want to make sure that we consider all the issues very carefully, and understand different tradeoffs are involved in trying to come up with decisions. There are going to be tradeoffs.”

Commissioners represent a range of expertise, including waste management, economic development, electricity rates, engineering, health and conservation. Most are new to state service, with the notable exception of Larry Cobb, who was Republican minority leader in the state House and Senate in the 1970s and 1980s, served on the state Utilities Commission, and was a lobbyist. He remains an attorney working in utility regulatory law.

Frank Holleman, an attorney for the Southern Environmental Law Center, said the General Assembly should have included representatives of the communities affected by coal ash, and clean-river advocacy groups. Instead, the categories are weighted toward the utility industry and its consultants and contracts.

Holleman said the solution is to move all the coal ash into lined storage sites away from rivers without delay.

“Instead of doing that for every community in the state, the legislature chose to create a new commission,” he said.

Robin Smith, a former DENR assistant secretary, said Wednesday the commission has its work cut out for it in terms of meeting deadlines and dealing with interagency tensions over who has the authority to make final decisions. (Under the law it’s the commission, not DENR.)

Smith, who practices environmental law in Chapel Hill, said the legislature set unrealistic deadlines for the first two major reports the commission is required to produce. One on creating incentives to reuse coal ash in other products is due in December. The other, which is due next October, looks at the practicality of closing some sites based on how well contamination there will naturally degrade over time if left alone.

Skvarla, talking to reporters last week during a news conference with the governor, also said the deadline should have been extended.

“But we’re working through all that,” Skvarla said. “We’re going to meet the deadline, then we’re going to report what we know at the time.”

Independent of DENR

The coal ash regulatory apparatus won’t fully swing into action until the commission makes more progress. A fee on Duke Energy will eventually help pay for five new positions assigned to the commission, and 25 positions assigned to monitor coal ash for DENR.

There is a built-in bureaucratic conflict in the new law. The coal ash commission will be independent of DENR; it will be housed under the Emergency Management section of the state Department of Public Safety. Senate leaders insisted on that division because of an ongoing federal criminal investigation of DENR’s relationship to Duke Energy in the regulation of coal ash.

Public safety officials have been scrambling to arrange Friday’s meeting, where the new commissioners will be given an overview by Duke Energy and DENR officials, and learn about ethics and open-meeting requirements.

Under the new law, four plants will be closed first: Dan River, Riverbend, Asheville and Sutton. Classifying the other 10 plants is to be done by the end of next year. Closures of high-risk sites are to be set at the end of 2019, with intermediate-risk sites in 2024 and low-risk in 2029.

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