Senate coal ash plan tightens requirement for cleanup at four sites

Environmental advocates say the bill does more to clean up the 33 coal ash ponds at 14 locations around the state than the governor's measure, but it still falls short of the complete removal and containment advocated by many such groups. 

"The governor set a very low bar," said Frank Holleman, an attorney with the Southern Environmental Law Center. Asked to review the draft legislation obtained by WRAL News, Holleman said, "It's not a bill that completely cleans up North Carolina's coal ash problem." 

Coal ash legislation has been a high priority for Senate leaders during the legislative short session, which began in May and is due to wrap up by the end of this month. A major spill earlier this year occurred in Rockingham County, close to the home of Senate President Pro Tem Phil Berger. Senate Rules Committee Chairman Tom Apodaca, R-Henderson, has said for months he wants a bill that would require definitive action by Duke Energy, pointing out the potential for problems from coal ash locations in the western part of the state. 

Apodaca, the primary sponsor of the Senate bill, could not be reached for comment late Sunday. However, in prior interviews, he has said that he wants to see a faster, more permanent solution than what the governor has proposed. 

"Just letting them sit there is not the answer to the problem," he said.

In a report Sunday, Apodaca told The Associated Press that his bill was designed to deal with the biggest hazards right away.

"We've set up a plan to move forward, so we get out of the ash business totally with 15 years. That's total elimination of ash ponds or cap and seal," he said. 

For decades, the leftover ash material has been stored in wet ponds by Duke as well as Progress Energy, a power company Duke merged with in 2012. Although environmental groups have pushed for cleanup for years, it wasn't until the Feb. 2 spill that lawmakers fully focused on the issue. 

Under the draft legislation headed to the committee Monday, Duke would have to remove the coal ash from the Dan River location and three other locations across the state: Riverbend in Gaston County, the Asheville steam station in Buncombe County and the Sutton plant in New Hanover County near Wilmington. All of those locations have been the subject of either high-profile spills or local water contamination. 

For the remaining 10 Duke locations, the state Department of Environment and Natural Resources would be required to assess each coal ash facility and decide whether it is high, intermediate or low risk. High-risk locations would have to be cleaned up on the same timeline as the Dan River and three other high-priority locations. 

Duke would have to remove the ash from intermediate-risk coal ash ponds by the end of 2024. The bill would allow Duke to drain the water from low-risk ponds and either remove it or "cap" the location, essentially sealing in the ash. 

A new state commission would oversee DENR's work in this regard.

Holleman expressed doubts about the Coal Ash Management Commission, saying that only one member would represent the communities that could be potentially affected by another major spill. He also pointed out that DENR is the agency that has long had oversight over coal ash locations and is now the subject of a federal probe into potential criminal wrongdoing. 

"These other 10 communities across the state have no assurance that coal ash will be cleaned up in their communities," he said.

The Southern Environmental Law Center has been involved in litigation with Duke and the state over coal ash ponds for years. SELC contends that toxins from the ponds present an "ongoing disaster" that is contaminating ground and surface water from seepage that is less dramatic, but no less real, than the Feb. 2 spill.

As for the company itself, a spokesman calls the the timeline laid out by the Senate "aggressive" and worries that it tries to compress the work into too short of a time.

"We are currently reviewing the proposed legislation in detail, but it is clear that the bill timeline is much more aggressive than our plan," said Jeff Brooks, a Duke Energy spokesman. "For example, we’ve stated that excavation at one of our largest sites could take up to 30 years. The legislation requires all ash basins to be addressed within 15 years. We agree that coal ash needs to be addressed in a timely fashion, but this bill will place significant burdens on the company to meet this deadline and plan."

Other parts of the bill are more prescriptive. Duke and other companies that produce coal ash would have to begin scaling back their use of "wet" coal ash storage facilities this year. Any active power generating facility would have to phase out the wet storage of newly created fly ash – materials caught by filters that clean air discharged by power plants – by the end of 2018. Coal-fired power plants would have until the end of 2019 to store all newly created bottom ash – heavier material left in boilers inside the plant – in dry storage facilities. 

The bill would allow for ash to be used as "structural fill," which is material used to fill-in or even-out land for road construction and other projects. 

The measure would also prohibit the state's Utilities Commission from raising the rates Duke could charge customers for "costs resulting from an unlawful discharge to the surface waters of the State from a coal combustion residuals surface impoundment" after Jan. 1, 2014. That describes the Dan River spill and any future spill. It would also put a moratorium on rate increases related to the clean up of the 13 other coal ash locations until Jan. 15, 2015, in order to give the state time to study the impact of cleanup plans developed by Duke and DENR as well as new federal rules that are scheduled to be put in place later this year.

This measure is only a draft and has a long way to go before being sent to McCrory. It must clear the Senate Agricultural, Environment and Natural Resources Committee as well as the full Senate and then be approved by the House. However, lawmakers in both chambers have said the coal ash measure would be one item they would have in place before ending their session this summer.