Duke Energys coal-fired plant in Asheville

Legislature’s coal ash bill ensures cleanup only at Asheville and three other sites

While Asheville and three other sites across the state are winners in the coal ash bill adopted by the North Carolina legislature, overall the House and Senate have failed to deliver the comprehensive coal ash cleanup plan they promised at the outset of this legislative session.

The bill makes strides with regard to these four disposal sites and on the future production and reuse of coal ash, but the bill could allow existing coal ash to remain in place at 10 facilities across North Carolina, where it’s polluting rivers, streams and groundwater.

The bill also attempts to roll back existing law that imposes clean up obligations on Duke Energy, made clear in a judge’s ruling earlier this year that explicitly gave state environmental officials the authority to force Duke to take immediate action to eliminate sources of groundwater contamination.

“The French Broad River is one of the few real winners in this bill,” said Hartwell Carson, French Broad Riverkeeper at the Western North Carolina Alliance. “The bill requires the coal ash lagoons at Duke Energy’s Asheville plant to be excavated and the ash moved to a lined facility that will stop it from contaminating ground water and the French Broad River. That’s great, but other communities in the state with coal ash ponds, including those around the Cliffsideplant in Rutherford County, aren’t assured of the same protections.”

The bill requires Duke Energy to move ash from the Dan River, Riverbend, Sutton and Asheville facilities into lined landfills away from waterways. Duke had already publically committed to move ash at these four sites, three of which are sites where environmental groups threatened to sue Duke Energy and the fourth, Dan River, was the site of a massive coal ash spill in February.

The Alliance, along with the Sierra Club and the Waterkeeper Alliance and represented by the Southern Environmental Law Center, initiated legal action at the Asheville plant early in 2013 after years of water monitoring and urging that the state and the federal Environmental Protection Agency take action. The Alliance is also party to litigation on Duke Energy’s Cliffside plant.

“We took legal action because the state refused to step up. In the wake of the Dan River spill, we hoped the legislature would impose strong cleanup requirements. But this bill doesnt require Duke Energy to do anything to clean up coal ash beyond what it has already pledged to do,” Carson said. “Given the opportunity the legislature had, that isn’t much progress.”

The bill leaves decisions about clean up at Duke Energy’s other 10 coal ash disposal sites to the discretion of the state Department of Environment and Natural Resources and a newly created coal ash commission whose members are appointed by the legislature and the governor. These unlined coal ash pits are leaching arsenic, chromium, mercury, lead, cadmium and boron into rivers, streams and groundwater.

The final bill was amended to add language aimed at better protecting groundwater at these sites, but it is unclear how effective it will actually be when implemented.

“DENR has worked hand and hand with Duke Energy to prevent cleanup of coal ash pollution for years, despite full knowledge of the problems. Granting this level of discretion to an agency with a history of putting the interests of Duke Energy above the public is a prescription for failure,” said Julie Mayfield, co-director at the Alliance.

“And in allowing for the possibility that some coal ash sites will be left in place in unlined pits, the legislature is attempting to roll back existing clean up requirements,” Mayfield said. “Why would our elected leaders put fewer requirements on Duke and leave communities across the state at risk? Every community deserves to be protected like Asheville.”

Also of great concern, the bill gives Duke Energy amnesty for leaks from its coal ash dams that flow directly into streams and rivers. Rather than requiring Duke to fix its leaking dams, the bill mirrors the sweetheart deal Duke negotiated with DENR last year – a deal DENR later withdrew that shields Duke by permitting these uncontrolled discharges of contaminated wastewater. “The legislature should require Duke Energy clean up its leaking coal ash dams, not allow DENR to paper over Duke’s pollution,” Carson said.

On the positive side, the bill requires Duke Energy to transition from wet coal ash disposal to dry ash disposal at all of its facilities by 2019. That should reduce the likelihood of future contamination and the likelihood of a catastrophic dam failure.

The bill also imposes requirements on the use of coal ash as structural fill, similar to those in place at the Asheville airport project that has been using ash from the Asheville coal plant for several years. These requirements only apply to large coal ash fill projects, however, not all fill projects. And there are other positive provisions around public notification of spills, providing drinking water to impacted families, and groundwater monitoring.

“These are important, positive steps forward that will help prevent future contamination and protect impacted communities,” Mayfield said. “The legislature would have done better to adopt a similarly strong approach to dealing with existing contamination.”

The final bill also tightens a provision that allows Duke Energy to obtain a variance to clean up deadlines in the bill. The version adopted by the House had no criteria for granting the variance, allowing for the possibility that Duke could obtain variances at all of their sites and never actually clean up anything. The final bill limits the number of times Duke can request variances and time limits the deadline extensions.