Raleigh, N.C. — Duke Energy would be able to leave toxin-laced coal ash in as many as seven unlined pits across North Carolina under a bill that cleared the state Senate 44-4 Tuesday.
The measure replaces a bill vetoed by Gov. Pat McCrory earlier this year because he said it infringed on his ability to manage environmental matters. Instead of creating a separate Coal Ash Management Commission to oversee the cleanup, lawmakers will entrust McCrory's Department of Environmental Quality with the job.
"Our staffs have met for weeks to get a consensus approach," Sen. Tom Apodaca, R-Henderson, said Tuesday, telling his colleagues that the bill has the governor's blessing.
Coal ash is the material left over after coal is burned for fuel. The material is largely inert, but bits of heavy metals and other toxins are mixed in. For years, environmental groups, the state and power companies have sparred over how that material should be handled.
That debate came to head on Feb. 2, 2014, when a coal ash pond in Rockingham County spilled tons of the material into the Dan River. Lawmakers responded to that bill by crafting a bill that designated virtually all of the company's 33 coal ash ponds as either high or medium risk. Those designations meant that Duke would eventually have to remove that ash from the ponds.
But when McCrory won a lawsuit against the General Assembly, lawmakers were forced to redraw the bill.
That new measure, which is now part of House Bill 630, not only foregoes the creation of a separate commission, it creates new rules for when coal ash must be dug up from pits.
Under the measure, ash from seven of 14 sites across the state must still be dug up and stored elsewhere. But in seven locations, if Duke makes repairs to coal ash dams and provides permanent water supplies to neighbors whose wells are potentially affected by coal ash contamination, those pits would get "low hazard" designation. That designation would let Duke take the water out of the pits and cap them, leaving the ash in place.
The bill does require the company to recycle 300,000 tons of ash so that it can be used in construction products.
Homeowners who live near coal ash ponds decried the agreement, saying that it goes easy on a company that has upended their lives.
"We don't understand why the state's not holding Duke's feet to the fire," said Deborah Graham, a homeowner near Duke's Buck Steam Station in Salisbury. "There should be no strings attached to clean water. ... It's almost like Duke wrote this whole thing themselves."
Homeowners like Graham have been forced to rely on bottled water for drinking, cooking and other needs due to contamination in their wells.
The bill also drew criticism from environmental groups.
"This bill abandons the idea that risk to groundwater and surface water should determine closure methods and timelines at half of the coal ash sites in the state," said Molly Diggins, state director for the North Carolina chapter of the Sierra Club. "Current law requires the state to base coal ash classifications and cleanup schedules on risks to public health and safety and the need to protect the environment and our natural resources. 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."
But the bill has the backing of state senators, Duke and the McCrory administration.
"I want to thank you for vesting your trust in my department for implementing the Coal Ash Management Act," DEQ Secretary Donald van der Vaart told the Senate Rules Committee Tuesday.
In addition to mapping the way forward on coal ash, the bill also affirms that lawmakers can keep other commissions overseeing oil and gas drilling in place.
However, the measure's fate in the House is less certain. One of the primary authors of coal ash legislation in the House said he does not like what senators have come up with.
"I will vote, 'no,'" Rep. Chuck McGrady, R-Henderson, said.
McGrady said he took particular issue with the provisions that require a low risk rating in many circumstances.
– WRAL News Reporter Tyler Dukes contributed to this report.