Raleigh, N.C. — The question of how and how quickly more than 30 unlined coal ash pits across North Carolina must be cleaned up would be reopened under a bill the House Rules Committee passed Tuesday.
Members of the committee rewrote Senate Bill 71 Tuesday afternoon to address three coal ash-related topics. It would reactivate the Coal Ash Management Commission, an appointed body that Gov. Pat McCrory shut down earlier this year after he won a legal battle with the legislature.
The new measure would also rewrite rules for how quickly Duke Energy and the Department of Environmental Quality will ensure that the owners of homes with wells fouled by coal ash contamination are hooked to a new water supply for their homes. The bill also would reopen the comment period on how much risk each coal ash pond poses, effectively opening the possibility that the state could require a more or less rapid cleanup after the new comment period.
"I believe that we need a coal ash commission that is going to take the determinations by the department and bring its independent expertise ... and make a decision," said Rep. Chuck McGrady, R-Henderson, the lead author of the revised bill.
The proposal, which is expected to be reviewed by the House Appropriations Committee and potentially the full House on Wednesday, immediately drew a veto threat from McCrory, who said lawmakers are weakening coal ash protections and trampling on his prerogative to manage environmental issues. He, along with DEQ Secretary Donald van der Vaart and McCrory General Counsel Bob Stephens wrote to ask that lawmakers withdraw or redraft the legislation.
"This bill is far too open-ended," van der Vaart told the committee Tuesday afternoon, saying it would both slow the cleanup of pits and slow the connection of affected homeowners to public water supplies.
If all parties took the maximum amount of time allowed under the measure, McGrady said, it would be March before the newly reconstituted Coal Ash Management Commission signed off on a cleanup schedule.
He pointed out that the requirement that Duke provide clean water to homeowners was never set down in statute. Rep. John Bell, R-Wayne, said that the requirement that Duke help homeowners with water is, by itself, reason enough for him to back the bill.
Last week, DEQ rated all existing coal ash ponds as posing either medium or high risks. That means they would have to be dug up and the ash deposited in a lined landfill. Van der Vaart told the committee that the administration has been negotiating with Duke to give some ponds "low risk" designation in exchange for reinforcing dams and providing expedited water connections. A "low risk" designation would allow the company to handle those ponds by sealing the ash on site rather than removing it.
Cost appears to be a point of agreement between the legislature and the executive branch. McGrady said that he does have a concern that designating all ponds as medium or high risk would require the company to pass on increased costs to consumers.
The North Carolina Chamber raised the same cost issue in a letter it sent to lawmakers urging them to take action to reopen the coal ash question.Environmental groups criticized the measure, saying it slows work on a much needed environmental cleanup and is too much of a sop to the power company.
"This bill is the latest attempt by Raleigh politicians to bail out Duke Energy," said Frank Holleman, a lawyer for the Southern Environmental Law Center, which has sued to force environmental cleanup of the ponds. "Under the existing law, after extensive public comments, DEQ was forced to conclude that Duke Energy must remove its coal ash from its dangerous and leaking pits across the state. Now, after heavy lobbying by Duke Energy, the Raleigh politicians want to reopen the process to try to find a way to let Duke Energy off the hook."
While environmental groups, Duke and the state have sparred for years over what to do with the waste leftover when coal is burned for fuel, the issue sprang full force on the state's political scene following a Feb. 2, 2014, spill that spewed tons of toxin-laced coal ash into the Dan River.
After that spill, lawmakers moved to force Duke, which owns coal-fired power plants across the state, to clean up the unlined pits that had stored the waste for decades. Environmental groups contend that that the pits have been leaching poison into lakes and ground water for years.
They were also uncomfortable with McCrory's management of the cleanup. The governor is a former Duke employee, as are many key members of his administration. That's why the legislators created the Coal Ash Management Commission to oversee the cleanup.
The state Supreme Court ruled that lawmakers appointed too many members of the commission. The court told lawmakers to redraw that commission and two other panels because they were dominated by legislative appointments.
Senate Bill 71 gives the governor the five of the seven appointments to the Coal Ash Management Commission and creates new quorum rules to ensure that legislative members can't work without cooperating with the governor's appointees.
"The governor's appointments will always be in charge," McGrady said.
But the bill also requires the lawmakers to confirm gubernatorial appointments and limits the reasons for which members of the commission can be removed.
"Let's don't relive history here," Stephens told Rules Committee members, saying that the bill would not give McCrory adequate control of the commission. "My message to you is that all three of those commissions are unconstitutional and will be challenged."
Anticipating a fight form the governor, McGrady said the bill will turn over the coal ash commission's responsibilities to the Environmental Management Commission, an existing independent commission, if the bill is challenged in court.