For more than 80 years, North Carolina has done almost nothing to regulate coal ash. Duke Energy and other utilities have been free to burn coal for generations and dump the toxic ash into unlined ponds. There was minimal protection for groundwater and nearby lakes and rivers.
Looked at in that context, the bill N.C. Senate leaders unveiled Monday is remarkable. The legislation from Republican Sens. Phil Berger and Tom Apodaca requires Duke to close four of its 14 N.C. ash pond complexes within five years and remove the ash from them. It requires that the other 10 sites be closed in the 10 years after that. It ends the practice of dumping ash into lagoons and requires all future ash to be stored in dry, lined landfills. No ash could be stored within 300 feet of a body of water. And it creates 29 new positions, paid for by utilities, to regulate coal ash.
The legislation is a meaningful response to a February spill that dumped 40,000 tons of sludge – and its arsenic, mercury and other toxic substances – into the Dan River north of Greensboro. Cleaning these pits up would be the one benefit to come from the environmental tragedy on the Dan.
While the Berger-Apodaca bill is a relatively large step forward, it has several flaws:
• It gives Duke a clear path to pass the cost on to consumers through higher electric bills. Disposing of a production byproduct is a business expense, and its cost should be borne by the company and its shareholders. The bill requires Duke to pay for its cleanup of the Dan and any future spills, but ratepayers could be on the hook for the much bigger costs of moving the ash.
• The bill requires the Department of Environment and Natural Resources to classify the remaining 10 sites as high-, intermediate- or low-risk, with low-risk ponds subject to the most permissive restrictions and able to operate for 15 more years. There is little to stop DENR from designating most or all of them as low-risk. DENR’s relationship with Duke has been so cozy that it is being criminally investigated by federal authorities, suggesting it might not take the strictest approach.
• Duke doesn’t have to remove the ash from sites deemed to be low-risk. The company can leave the ash in place and just put a “cap” over those lagoons, which does not protect groundwater.
• The legislation creates a coal ash commission to review DENR’s recommendations and serve as a middleman making policy recommendations to the General Assembly. Only one of nine members would represent conservation interests, and the other appointments will determine how much the panel bares its teeth.
Utilities have been allowed to store toxic waste in a way that cities can’t even store routine garbage. It’s past time for that to change. This bill is a start, but once the Senate passes it, the House needs to make some crucial fixes.