N.C. Senate Unanimously Passes Coal Ash Cleanup Bill That May Not Go Far Enough

A hand covered with wet coal ash from the Dan River spill in February. CREDIT: AP PHOTO / GERRY BROOME
A hand covered with wet coal ash from the Dan River spill in February. CREDIT: AP PHOTO / GERRY BROOME

A bill that would force Duke Energy to close all 33 of its unlined coal ash ponds in North Carolina within 15 years passed unanimously in the state’s Senate last week, signalling a potential legislative response to the massive coal ash spill in the state’s Dan River earlier this year.

The bill, introduced earlier this month by North Carolina Senators Tom Apodaca (R) and Phil Berger (R), would force the closure of all unlined coal ash ponds in North Carolina over the next 15 years, and singles out ponds at four high-risk coal plants — including on the Dan River — to be closed by 2019. The rest of the coal ash ponds in the state would be sorted into two categories — intermediate-risk ponds, which must be closed by 2024, or low-risk, which can be capped if a new coal ash commission created by the bill and North Carolina environmental regulators agree that the sites don’t have to be excavated and closed. It also prevents wet coal ash from being stored in unlined ponds in the future, mandating that the substance be put toward a “beneficial use” — such as concrete — or into a lined landfill.

“We’re going to set the standard for the rest of the country on coal ash,” Sen. Apodaca said. “Nobody has ever attempted to do anything like this. (The problem) definitely exists in Kentucky and Tennessee, but we haven’t seen that much legislation dealing with it. We’re going to, in a comprehensive way.”

It’s that low-risk category for coal ash ponds, however, that has some environmentalists in the state worried about the bill. Southern Environmental Law Center Attorney D.J. Gerken said he was glad to see that the bill set rules for future coal ash storage in the state, he didn’t think there was enough guidance in it about what constitutes a high-risk, intermediate-risk, or low-risk pond. That lack of guidance could mean ponds that are at risk of leaking could be placed into a low-risk category, to be capped at a certain level by coal companies but not to be excavated and removed.

“The truth is, no coal ash pond in the state of North Carolina is a low-risk site,” Gerken told the Hendersonville Times-News. “It is a disaster to leave DENR the discretion to stick with the plan it has embraced for years, which is covering them over with dirt and walking away.”

Gerken is also worried about a loophole in the bill that he says allows coal companies to leave coal ash where it is without a liner if they prove to the state’s Department of Environment and Natural Resources that they have a different design that meets water quality standards. The SELC said in a statement that the bill would leave 2.6 million North Carolinians who depend on water taken downstream of coal ash ponds that aren’t required to be cleaned up under the bill at risk.

“The bill allows Duke Energy and the state Department of Environment and Natural Resources to just cover up unlined coal ash pits that are polluting water near communities and upstream of public drinking water intakes,” the SELC said. “Covering up coal ash pits does not stop groundwater pollution underway at all of the Duke Energy sites.”

Duke, for its part, says the bill’s timeline is “aggressive” and would place “significant burdens on the company.”

Some lawmakers in North Carolina tried to attach amendments to the bill to add more Duke coal plants to the high-risk list, but those amendments were voted down last week. One of the amendments would have added Buck Steam Station in Salisbury, North Carolina to the list — a plant that Duke’s monitors have found to test positive for levels of dangerous chemicals that exceed state standards, and that those same chemicals have been found in tests of well water of nearby homes. Democrats also tried to attach an amendment to prevent Duke from seeking a rate increase to pay for the cleanup, but that was also blocked.

But despite these differences in opinion, the bill still passed unanimously — a signal that some of these lawmakers are willing to compromise in order to get a law passed to clean up coal ash in the state.

“This is not a perfect bill,” Sen. Mike Woodard (D) said. “I’m not going to let the perfect stand in the way of the good.”

Gov. Pat McCrory, who backed an earlier version of the bill that would have given more power to the DENR to make decisions about when and how coal ash ponds needed to be cleaned up, wouldn’t say one way or another to the Associated Press whether he would sign the bill in its current form if it’s passed by the House.