Coal ash could become campaign hazard

Republican leaders in the House and the Senate named a coal ash cleanup bill as one of their top priorities for this summer's legislative session. But as lawmakers struggle to adjourn, they will leave laws governing coal ash ponds like the one that spilled in the Dan River unchanged.

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Mark Binker
RALEIGH, N.C. — North Carolina's 33 coal ash ponds could pose a political hazard this fall as the General Assembly adjourns for the time being without finishing work on legislation to address the environmental hazard posed by the unlined pits filled with toxin-laced material. 

After a Feb. 2 spill from a shuttered Duke Energy plant dumped roughly 40,000 tons of coal ash into the Dan River, Republican leaders in both the House and the Senate vowed to craft legislation that would lead to the cleanup of the ponds that sit along waterways at 14 plants across the state. Progress on that legislation hit a snag earlier this month after legislative leaders couldn't resolve their differences over two different versions of the bill.

Lawmakers say they will return after the November election to take up both coal ash legislation and a Medicaid reform package. 

In the meantime, not only will state House and Senate members face voters without tackling what was supposedly a top priority for the summer session, but House Speaker Thom Tillis will campaign against U.S. Sen. Kay Hagan with a significant item remaining on his chamber's to-do list.  

"It does concern us," said Sen. Tom Apodaca, R-Henderson, the chairman of the Senate Rules Committee and one of the leaders responsible for helping his fellow Republicans get elected.

Apodaca also was one of the first Republican leaders to speak out and call for coal ash legislation.

Coal ash is the material left over after coal is burned for fuel. While most of it is inert, coal ash does contain mercury, arsenic and other toxins. Not only has the spill been an issue, but lawsuits by environmental groups have raised concerns that even intact ponds are slowly leaching toxins into groundwater supplies. As well, federal prosecutors have subpoenaed documents from both state regulators and Duke as part of a criminal investigation into the spill. All of that, plus the potential for another spill at one of the aging man-made ponds, has raised the political profile of the issue this year. 

"Just letting them sit there is not the answer to the problem," Apodaca said in February.
Other leaders soon signed on, and lawmakers held special meetings this spring designed to help quickly draft a bill. 
But as the summer wore on, the Republican majorities in both the House and the Senate ran into a number of differences over key legislation, including education spending in the budget, Medicaid and coal ash. While the budget battle eventually ended, the scrap over coal ash became publicly toxic two weeks ago, with members of both chambers accusing each other of being disingenuous. 

"We just can't reach agreement," Apodaca said. 

Questions about consequences

For Republicans, who won control of the legislature in 2010 from Democrats and expanded their majorities in 2012 based on promises to more efficiently and effectively run government, the failure to address such a high-profile problem could rebound at the polls. 

"My sense would be, in certain districts, it will be very salient," said Mac McCorkle, a former Democratic strategist for Govs. Bev Perdue and Mike Easley who now teaches at Duke University's Sanford School of Public Policy.

Lawmakers who have large coal ash ponds in or near their districts, such as Apodaca and Senate President Pro Tem Phil Berger, may face stiffer questions that those who do not.

"I understand the gravity of the problem and fixing it to be a top priority," Berger said on the Senate floor Thursday night. But he said coal ash "is a highly complex issue," and it was appropriate for the state to take more time.  

Traditionally, environmental issues have less pull in statewide elections, and it's unlikely that coal ash by itself will drive voters one way or the other. But, McCorkle said, the failure to pass a bill could contribute to a narrative that Republicans are not up to the job of governing. 

"It does seem they ought to be able to get something done, even if it's not terribly punitive against Duke, declare victory and go home," said North Carolina State University political science professor Andrew Taylor.

While some individual state lawmakers may face questions about coal ash, Taylor said Tillis may be more troubled by the issue if Democrats use it to question why the legislature couldn't get a bill passed.

"That's a competency and leadership argument rather than a question of whether they're good or bad on the environment," Taylor said.

Tillis said Thursday he's comfortable with leaving the bill until November.

"There's work that's being done now that follows the spirit of the underlying legislation," Tillis said Thursday night, referring to an executive order issued by Gov. Pat McCrory.  He downplayed any potential electoral consequences. 

"I believe North Carolina is moving more quickly than any other state," he said. Rather than "taking a pass," Tillis said lawmakers are just taking time to get complex bill right. 

Both Tillis and McCrory have been named in commercials by environmental groups complaining about their approach to the coal ash issue. While environmental issues have not yet taken center stage, McCrory has been criticized as a former Duke Energy employee who still held stock in the company. His administration's handling of various lawsuits surrounding the coal ash ponds has also been criticized as too lenient by environmental advocates. 

"It may well be that this a bigger issue for McCrory to resolve with 2016 in mind than for Tillis with 2014 in mind," Taylor said. 

As for General Assembly races, lawmakers are split over the potential impact of leaving town without a bill.  

Rep. Marilyn Avila, R-Wake, said that voters should appreciate the need for lawmakers to go slow.

"This is the first legislation of its type in the country," Avila said, and lawmakers need to get it right.

Asked whether the delay wasn't more over differences between the House and the Senate than the need to study the measure, Avila said the disagreement is over the best approach to determining what kind of cleanup procedure is needed for each pond. 

"The disagreements have to do with the particulars of how you approach a solution," she said. 

Both Avila and Apodaca said that an executive order by McCrory and subsequent action by the Department of Environment and Natural Resources will continue cleanup efforts. McCrory's executive order has been criticized by environmental groups as doing little more that putting monitoring in place and taking other steps that should have been done immediately after the spill.

"I think it's a big liability to leave it until after the election," Rep. Pricey Harrison, D-Guilford, said of the coal ash bill.

Harrison has filed coal ash cleanup measures since 2009, and she said Democrats could end up capitalizing on the GOP leadership's failure to act.

In particular, she said that constituents she has talked to don't want to see the cleanup costs affect their power bills. While Duke has said it will bear the cost of clearing up the Dan River spill, company officials have indicated they could ask for power rate increases to help with the costs of other ponds.

No version of the coal ash legislation says exactly how or if Duke would be able to recoup its cleanup costs from consumers, although several versions call for delays in levying any new fees for the cleanup.  

"That may be the stick of dynamite in this whole thing," long-time Republican strategist Carter Wrenn said of the cleanup cost issue.

While it's unlikely Duke can bear the whole cost of cleanup, Wrenn said that the very profitable company can't plausibly say it should pay nothing.

In addition, he said, the spill has changed the political calculus that has traditionally relegated coal ash to second-tier status among campaign issues. Widespread news coverage of the spill, subsequent investigations and pledges to act have made the environment generally, and the spill particularly, a top-of-mind issue. 

"It's a problem as long as voters think there's a problem with coal ash ponds," Wrenn said.

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