Coal ash bill eventually wins strong support, but getting to ‘Coal Ash 1’ was anything but easy

Rep. Chuck McGrady, R-Henderson, answers a question on coal ash legislation as House Rule Committee Chair Tim Moore, R-Cleveland, looks on during a meeting on the bill, held Wednesday in Raleigh. Kirk Ross/Carolina Public Press

RALEIGH — The 2013-2014 North Carolina General Assembly session ended with the passage of comprehensive coal ash legislation, an achievement — and a legislative compromise — few had expected earlier this year.

In the wake of a major coal ash spill that dumped close to 40,000 tons of coal ash in the Dan River in early February, new legislation was promised as a top priority when the legislature convened in May. But after months of hearings, any coal ash bill was all but given up for dead after a conference committee charged with working out major disagreements between House and Senate versions was disbanded at the end of July.

The stall in the push for legislation showed both the complexity of the task as well as how difficult it is to attempt to rein in Duke Energy, the state’s largest utility, which wields considerable influence in the legislature.

Finalizing a plan was also a major challenge for House and Senate leaders, exposing disagreements over how to regulate the ash ponds, which are in 14 locations spread around the state. During debate on previous versions of the bill, sponsors were forced to fight off attempts by both Democrats and Republicans seeking to add ponds in their districts to the list of high-priority sites.

The new version of the bill sets timetables for cleanup at four high-priority sites — including one in Asheville — and a process for categorizing the other 10 sites.

A coal-ash revival

The collapse of the House-Senate talks prompted Gov. Pat McCrory’s administration to move forward without legislation. On Aug. 1, the same day he signaled he would sign the newly minted state budget, McCrory announced his dissatisfaction with the lack of legislative action on coal ash. He issued Executive Order 62, which, among other things, ordered the N.C. Department of Environment and Natural Resources to start an immediate assessment of drinking water wells near coal ash ponds.

After that, hopes for coal ash legislation faded.

The House’s refusal, on Aug. 15, to agree to a Senate-proposed special session on coal ash in November seemed to seal off any prospect for an agreement.

But during the final weekend of the session, as House and Senate leaders planned the last few days of work, a deal began to take shape when the Senate offered compromise language to what had been a deal-breaker for the House.

Conferees signed off on the bill last Tuesday afternoon. It was heard in the House Rules Committee the following morning. The committee sent the bill on to the House floor where, after about a half-hour debate, it was approved 84 to 13. The bill won by a larger margin in the Senate and, after passing 38 to 2, was sent to McCrory. Democrats Rep. Susan Fisher and Sen. Terry Van Duyn, both of Asheville, were among those voting against the bill.

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During debate over the measure, opposition to the bill focused mainly on whether Duke Energy or its ratepayers would pay for cleanup. It also focused on a provision intended to negate a ruling by a North Carolina Superior Court judge requiring that, in the case of groundwater violations, the source material causing the contamination must be cleaned up.

Timeline revealed as McCrory considers legal fight

McCrory said this weekend he would sign the legislation but is considering a legal fight to change a provision reducing the executive branch’s role in the newly formed state Coal Ash Management Commission.

Under the new version of the bill, the commission will be moved from DENR to the Division of Emergency Management at the N.C. Department of Public Safety.

In addition to the new commission, the bill funds 25 new positions at DENR at a cost of $1.75 million. It also adds five positions at the Division of Emergency Management for support work for the commission.

Under the legislation, Duke Energy would be required to dewater and remove coal ash from its Asheville plant, Riverbend plant near Charlotte, Sutton plant near Wilmington and the former Dan River plant by Aug. 1, 2019. DENR is given until Dec. 31, 2015 to prioritize the closure of the remaining 10 sites.

Under the timetable in the bill, any other ponds deemed “high risk” would also be closed by Aug. 1, 2019. “Intermediate-risk” ponds would be closed by Dec. 31, 2024, and “low-risk” ponds would be closed by Dec. 31, 2029. The sites would be monitored for 30 years.

The main compromise in the bill was over new restrictions the House wanted on what types of ponds could be categorized as “low risk,” the only ranking that allows for a pond to be dewatered and then capped in place. The new restrictions would not allow ponds with coal ash below the water table to be considered low risk.

‘Exceptional turnaround’

The dam that forms Lake Julian is one of three Duke Energy dams located its coal-fired electricity plant in the Asheville area. Micah Wilkins/Carolina Public Press

For Rep. Chuck McGrady, R-Henderson, the chair of the House negotiating team, the 11th-hour agreement was an exceptional turnaround.

The House and Senate negotiations over coal ash saw McGrady and fellow Henderson County Republican Sen. Tom Apodaca square off over the final version of the bill.

The two worked closely on the bill at the start of the session, but after the conference negotiations broke down, Apodaca accused McGrady and the House team of trying to put in language not passed by either chamber. McGrady defended House changes on social media and detailed essays on his blog.

On the day the bill passed he tweeted “Hard to believe Sen Apodaca and I were about to kill each other and now we’ve passed a #coal ash bill with broad bipartisan support.”

In an interview after the House passed the conference report, McGrady said the negotiations were tough.

“Sen. Apodaca is not used to having people say ‘no’ to him,” he told Carolina Public Press.

‘Good news’ for Asheville, but criticism continues

While it passed with strong support, the bill has no shortage of critics.

Environmental groups praised the bill for its attempt to regulate coal ash and force a cleanup at the 14 sites around the state, but said the it fell short in a number of areas, especially groundwater protection.

In a statement issued after final passage, Molly Diggins, state director of the North Carolina Sierra Club, said a single piece of legislation won’t solve the problem.

“Without this legislation, coal ash would have remained essentially unregulated, an untenable position for North Carolina residents,” Diggins said. “Still, today’s action does not go far enough to prevent more contamination of our treasured water resources.”

D.J. Gerken

D.J. Gerken, an attorney with the Southern Environmental Law Center’s Asheville office, said the bill is good news for Asheville and those living near the other high-priority sites, but doesn’t provide sufficient guarantees on the other 10 sites, which are also contaminating groundwater and have potential for a spill like that on the Dan River.

He said the bill leaves what will happen at Cliffside in Rutherford County and elsewhere up to a commission full of “political appointees.”

Because the state and Duke had already promised action on the four high-priority sites, he said, the bill doesn’t move the state as far forward as its proponents say.

“The bill makes Duke do what it already promised to do,” he said.

Gerken said he believes the bill’s attempt to negate a March ruling by Superior Court Judge Paul Ridgeway instructing Duke Energy to take immediate action to stop groundwater contamination will prove unsuccessful.

He said he expects SELC and Duke to file additional briefs in the case as a result of the provision.

McGrady said he pushed for the language on the Ridgeway ruling because he expects the ruling to be overturned on appeal.

The judge, he said, went too far in requiring removal of the source of contamination, a mandate that could have negative effects beyond the coal ash ponds, including some municipal landfills.

Only the beginning

Supporters and opponents of the legislation agree on at least one thing — it’s only the beginning of coal ash legislation in North Carolina.

Last week, as the bill moved toward passage, McGrady said repeatedly that he expects to see more in the next session and beyond.

“We’ve got a really strong bill on policy,” he told his colleagues during debate on the House floor Wednesday. “It isn’t perfect. And what I want to tell you — warn you right now — this is Coal Ash 1. There’s going to be a Coal Ash 2 and probably Coal Ash 3. Even Sen. Apodaca agrees with me on that.”

Correction: An earlier version misstated the amount of coal ash spilled into the Dan River.