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Political chaos in wake of North Carolina coal ash bill debacle

A drainage pipe under a coal ash pond at a retired power plant owned by Duke Energy leaked into the Dan River in February.
A drainage pipe under a coal ash pond at a retired power plant owned by Duke Energy leaked into the Dan River in February.
WFAE via Appalachian Voices

Updated to include additional information about the disputed provision in the legislation.

The inability of North Carolina General Assembly members to compromise on coal ash legislation reverberated throughout the state Friday and Saturday.

February's spill of up to 39,000 tons of toxic coal ash from a into the Dan River near Eden made national headlines. It also left state leaders scrambling to introduce a bill to address Duke Energy's ash ponds throughout the state.

Legislation delayed until mid-August or November

Conference committee negotiations between the House and Senate broke down Thursday over a provision introduced by the House. One source indicates that the provision would have excluded the ash ponds from being categorized as "low-risk" if they contacted groundwater, while another source stated that the provision would exclude ponds near surface waters. (Update: a blog written by a former senior employee at the state Department of Environment and Natural Resources indicates that the dispute stemmed from a disagreement over preventing the capping in place of low risk ponds below the water table.)

The Senate passed an adjournment resolution early Friday morning to possibly reconsider the bill in a November session. However, the House passed adjournment resolutions which would allow discussion of coal ash and other topics this month when possible gubernatorial vetoes are considered. Given that the Senate and House will not meet until Tuesday and Wednesday, respectively, it remains uncertain when coal ash and other legislative issues will again be discussed.

Conference committee member, Eden native and Senate President Pro Tem Phil Berger, in conjunction with fellow conferee Senator Tom Apodaca, said through a Friday news release, "The North Carolina House ... weakened our bill significantly .... At the 11th hour, ... three ... conferees went rogue and attempted to strong-arm entirely new policy no one had ever seen before."

House conferee and former Sierra Club president Chuck McGrady disagreed, having noted that, "[Apodaca] caught me yesterday to say there is no middle ground. We had to accept the Senate's position."

The Waterkeeper Alliance's Donna Lisenby decried the outcome as, "A multilayered failure of leadership. Both chambers failed to offer the comprehensive cleanup plan they promised at the outset of session."

Executive order and future actions

Governor Pat McCrory followed these events with an Executive Order on Friday which requires the state Department of Environment and Natural Resources to test groundwater at Duke's coal ash ponds, de-water four coal ash ponds under discussion, and add any needed staff. McCrory acknowledged, "[The order] is not a substitute for comprehensive legislation since it cannot address some existing loopholes."

Lisenby and the North Carolina Sierra Club's state director, Molly Diggins, both noted that the order instructed the department to take actions it already needed to undertake. Diggins also said that that the order should have come just after the February spill.

"The people of North Carolina deserve better than political stunts 'demanding' that Duke Energy do work it has already publicly committed to do," argued Lawyer D.J. Gerken of the Southern Environmental Law Center. The SELC and other environmental groups are involved in potential and ongoing lawsuits over the state's ash ponds. An earlier succesful suit against Duke forces it to clean up ponds causing groundwater contamination, barring succesful appeals.

"We will continue to work constructively with regulators and lawmakers to advance an enhanced plan for the long-term management of coal ash in North Carolina," Duke CEO Lynn Good said in a Friday news release. "We will also adjust our coal ash management plans according to upcoming federal rules on ash, which are expected in December."

The rules alluded to by Good will be issued by the Environmental Protection Agency. The rules will address whether ash is handled as a hazardous waste and if states or the federal government will bear primary enforcement responsibility.

North Carolina Sierra Club Director of Communication Dustin Chicurel-Bayard noted, "If North Carolina, in the face of an environmental disaster can't even agree on a resolution on this, it's an indication we need the EPA to set rules on this."

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