Long-Awaited Coal Ash Bill Leaves Communities at Risk

By Sarah Kellogg

This September, North Carolina’s first bill regulating the disposal of coal ash became law. Legislators praised the law as the strongest in the nation, but environmental groups and citizens living next to coal ash ponds say it is not strong enough.

North Carolina’s toxic coal ash, the by-product of burning coal for electricity, is stored in wet impoundments at 14 Duke Energy facilities across the state, all of which are leaking toxic heavy metals. After a faulty pipe at a Duke Energy coal ash impoundment spilled 39,000 tons of the waste into the Dan River earlier this year, state legislators responded to public concern by promising to draft the strongest coal ash regulations in the nation.

Citizen and environmental groups say the resulting legislation does not offer assurance of a timely, complete cleanup to 10 impacted communities. Instead, the law requires full cleanup of the four sites Duke Energy already agreed to remediate after public outcry earlier this year: Dan River, Sutton, Asheville, and Riverbend. The day the bill became law, Environment North Carolina and partner organizations delivered 40,000 petition signatures to N.C. Governor Pat McCrory’s office demanding the full cleanup of all 14 sites.

The bill leaves the fates of the remaining 10 sites in the hands of a special coal ash commission comprised of six appointees from the general assembly and three from the governor. Governor McCrory, who worked for Duke Energy for 28 years, stated that the commission is unconstitutional because the governor should be responsible for appointing the majority of a commission that executes legislative orders. Although he opposed the legislation, he did not veto it and allowed the bill to become law without his signature.

According to the bill, the commission will designate a rating of high, intermediate or low risk for each of the remaining 10 sites, and will also set timetables for the completion of cleanup, which Duke may appeal. The commission is also required to hold public hearings regarding cleanup plans at each site.

For coal ash sites deemed low-risk, the law allows “cap-in-place,” a storage method where water is drained from the coal ash pond and a cover is placed on top. Cap-in-place does not prevent groundwater contamination or the risk of dam failure.

The law also allows Duke Energy to request permission from the state to charge ratepayers for cleanup costs, though polls show that most North Carolinians think Duke’s shareholders should pay for all costs. Additionally, it weakens current laws protecting groundwater by allowing the state Department of Environment and Natural Resources to grant permits for illegal discharges of contaminated water from the coal ash ponds, rather than requiring Duke Energy to stop the source of the pollution.

Caroline Armijo helped deliver petitions opposing the bill to the governor’s office. She told reporters, “If coal ash is making us sick, then our leaders need to do something about it—now. We have a right to lead healthy lives.”