General Assembly sends compromise coal ash bill to the governor

The state House has passed a bill that would require an independent commission to oversee the cleanup of 33 coal ash ponds throughout North Carolina. State senators are expected to approve the measure later today.

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Mark Binker
RALEIGH, N.C. — Both the House and Senate voted Wednesday to approve a measure that leaders are calling a "first in the nation" bill that manages the removal of coal ash from 33 unlined pits throughout the state, despite objections from some environmental groups that the measure leaves too much of the decision making to an appointed board.

The state House voted 83 - 14 Wednesday afternoon to approve the bill. Shortly after 7 p.m., the Senate approved the bill 38-2.

Those votes on Senate Bill 729 come less than a month after House and Senate talks over a compromise piece of legislation broke down amid mistrust and finger-pointing over how some of the ponds would be designated for cleanup.

The bill now goes to Gov. Pat McCrory for his signature or veto.

"No other state has undertaken what we're undertaking today. We had no model to use and that's the reason it's taken the time it did," Rep. Chuck McGrady, R-Henderson, said. McGrady has been the lead negotiator for the House on the measure.

Coal ash became a front and center political issue for North Carolina following a Feb. 2 spill from a former Duke Energy power plant that dumped roughly 40,000 tons of the toxin-laced goop into the Dan River. Duke owns 14 power plants throughout the state that are either actively generating electricity or recently shuttered.

There are two basic types of ash produced when coal is burned to generate electricity. Fly ash is filtered out of the exhaust that is vented out of a coal burning plant. Other material is left behind in the boilers. While the bulk of either type of ash is inert, it contains mercury, arsenic, selenium and other toxins.

The Duke Energy pits have sat throughout the state for decades, and a massive billion-gallon spill in December of 2008 at a Tennessee Valley Authority coal ash facility brought the matter to national attention. But by and large both Democratic and Republican leaders have played down the need to address the state's unlined coal ash ponds until the Feb. 2 spill brought the subject into the public consciousness.

Even before the Feb. 2 spill, environmental groups like the Southern Environmental Law Center have been pushing in the courts to force Duke to cleanup the ponds. Advocates for the SELC and a few other groups have complained that the bill voted on today won't require Duke to dig up all the ash an put it into landfills. In some cases, the ash will be left in places for years or decades, if not forever.

"We do not have enough landfill space to do that," McGrady said. Rather, he said, it should be up to a new commission to determine how and when material is dug up and removed and when it can be recycled or left in place.

During his closing remarks on the bill, McGrady said that lawmakers would likely to see more bills dealing with coal ash cleanup in coming years.

Compromise reached on key issue

In March and April, legislative leaders in both the House and Senate pledged to craft a cleanup plan, and both chambers passed their own version of a plan. In late July and the first days of August, all that was left to do was reconcile those measures. However, the compromise appeared elusive.

In particular, the two chambers split over the definition of high, medium, and low priority that would attach to each of the ponds. High-priority ponds must be cleaned up right away, and 4 of the 33 ponds will be designated "high priority" by law. But there was no definition of lower priority and a concern among many legislators that Duke would be allowed to cap the toxic material in place near many vulnerable water sources.

Senators were skeptical of this fix, saying that it had not been vetted by either chamber and that it was unclear what the impact might be.

"If you want to know what held us up over the past two weeks, that's the provision," Rep. Chuck McGrady, R-Henderson said Wednesday morning.

The agreement reached on that provision says that no pond in which ash is sitting in the water table – the point in the ground were groundwater will be running through the sludge – could be designated as low priority.

While that appears to have ameliorated the concerns of many lawmakers, some environmental groups say its insufficient.

"A far cry from the historic bill lawmakers have touted, this plan chooses just four communities out of 14 across the state to receive cleanup," said Amy Adams, North Carolina campaign coordinator for Appalachian Voices. "The others, our lawmakers have decided, will have to wait for a commission of political appointees to decide their fate."

That appointed commission could be a point of contention with McCrory, although for different reasons. McCrory has objected to General Assembly taking power to manage certain parts of state government away from his direct purview and placing it in the hands of boards with legislative appointments. The coal ash bill creates a coal ash management commission that would have six legislative appointments and three gubernatorial appointees that would be charged with overseeing deadlines for Duke's work on removing or containing the ash.

McCrory has not yet said how he would handle this bill.

"We will continue to have a constitutional issue," McCrory said when asked about the bill and the management commission provision. And while he said that he was pleased legislative leaders were on track to pass the measure, the governor stopped short of saying he would sign the bill.

"I haven't had a chance to review what they have finally come to a conclusion with," McCrory said.

House leaders had argued that the state's Department of Environment and Natural Resources ought to provide the staff and other support for the commission. However, Senators insisted that the Department of Public Safety house the commission due to an ongoing federal criminal investigation into DENR's handling of coal ash pond over the past decade.

"At least when we set this thing up, we need to keep it away from things that may have occurred in the past. It should be set up in a neutral area of government," McGrady said.

House debate focuses on cost, boundaries

Senate debate on the measure was brief, with three members mainly spending time thanking others for their work on the bill.

House debate was more robust.

One thing the compromise ash bill does not do is say who will pay of the cleanup of the ponds. Duke Energy has committed to paying for the cost of cleaning up the Dan River spill, but company executives have said they may seek rate hikes in order to help pay the disposal costs.

The measure does place a moratorium on Duke asking for any rate increases associated with coal ash cleanup, but it expires on Jan. 15.

"My constituents have been concerned that in the fallout of all this that they are, as rate payers, going to have to tote the note," Rep. Kelly Alexander, D-Mecklenburg, said on the House floor Wednesday. "What assurances can you give me for my constituents that they won't be left holding the bag?" Alexander asked McGrady.

McGrady said that it was too soon to lay out who would bear the cleanup costs, although he did say that it would likely be split between the company and rate payers.

"There's a sweet spot somewhere in the middle here," McGrady said, noting that lawmakers would be able to take up coal ash cost legislation in 2015.

But those voting against the measure cited the cost issue as a major factor in their opposition. Rep. Pricey Harrison, D-Guilford, said power customers could see their rates rise $20-to-$30 per month if they were asked to cover all the costs.

"It's the cost issue that it's a sticking point for me," Rep. Grier Martin, D-Wake said.

Those who sided against the bill also pointed out it would overturn a recent court ruling. In that ruling, Wake county Judge Paul Ridgeway ruled that Duke had to remove the source of pollution that crossed a compliance boundary – essentially infringing on neighboring properties or surface waters.

"Judge Ridgeway ruled that existing law required the cleanup of the source of the pollution," Harrison said, adding that the bill undercut that ruling and would stall the cleanup it ordered.

But McGrady said the compliance boundary issue would affect more than just coal ash and could have implications for problems at municipal landfills and other sites of potential contamination where it would be impractical to remove the source of the pollution.

The House began debate on the bill Wednesday morning but took a two hour break before finishing that debate and taking a vote on the measure.

Even as the bill was vetted, some members expressed skepticism about how big of a threat ash posed.

"Coal ash in and of itself has never been declared to be a toxic or hazardous waste, has it?" Rep. Edgar Starnes, R-Caldwell, asked McGrady during a morning Rules Committee meeting.

McGrady acknowledge that it had not, although pointed out that federal regulations on the material were being developed.

"So if I went to a coal ash pond, picked it up and rubbed it on my hands, that's not in itself dangerous?" Starnes asked.

McGrady did not seem eager to joint Starnes in such an outing.

"You go ahead and do that," McGrady said, perhaps mindful that EPA reports have noted everything from heavy metals to trace radiation in ash ponds. "I'm not planning on doing that myself."


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