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N.C. legislators approve regulating toxic coal ash

The Associated Press

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RALEIGH — North Carolina lawmakers Wednesday praised new legislation they say will regulate coal-ash pits and clean up decades of toxic waste generated by coal-burning electricity plants.

The House and Senate approved the legislation six months after a spill at a Duke Energy power plant near Eden coated 70-miles of the Dan River in toxic sludge and ignited debate about the safety of 32 other coal ash dumps across the state. The measure goes to Gov. Pat McCrory before becoming law. His spokesmen did not respond to a message asking whether he would sign it.

Environmentalists and some Democrats said the legislation doesn’t go far enough. Others called it a starting point for dealing with a problem long in the making.

“It may not be perfect, but it is a solid step forward,” said Rep. Joe Sam Queen, D-Haywood.

Lawmakers say North Carolina is the first state to pass a sweeping coal ash bill. Nationwide, there are more than 1,100 coal ash dumps. Regulation has largely been left to states as federal officials have debated rules for coal ash storage and disposal since the largest spill in Tennessee in 2008. Coal ash contains toxic chemicals including arsenic, mercury and lead. State regulators have previously conceded that all of Duke Energy’s unlined ash dumps in the state are contaminating groundwater.

Charlotte-based Duke Energy, the nation’s largest electricity company, can seek regulatory permission in January to charge consumers for cleanup costs projected as high as $10 billion. Duke Energy CEO Lynn Good suggested in March that customers shoulder most of the costs.

Good said late Wednesday the legislative approval gives the utility direction with stronger standards. “We will immediately begin adapting our strategy to meet the requirements,” she said in a prepared statement.

Rep. Chuck McGrady, a former national president of the Sierra Club and a lead House negotiator on the bill, said lawmakers can take up the issue of who pays when they return next January.

The compromise legislation tries to solve a testy issue: allowing “low risk” ash dumps to be capped with plastic sheeting and dirt. Environmentalists want all the ash dug up and moved to lined landfills away from rivers and lakes. The new version directs Duke Energy to move low-lying dumps if there is significant risk of groundwater contamination.

Duke Energy gets up to 15 years to remove the ash at four of its 14 coal-fired plants considered to be at the highest risk. It would then be up to a newly created commission to determine what Duke would be required to do with its remaining dumps.

The compromise language prohibits simply capping an ash pit if there is a risk it will continue contaminating groundwater.

The nine-member coal ash management commission would be based in the Division of Emergency Management, part of the Public Safety Department headed by a McCrory appointee. It was previously proposed the independent panel be housed in the state Department of Environment and Natural Resources, which is the target of a federal criminal investigation into the state’s oversight of Duke Energy’s coal ash dumps.

Last year, lawmakers allowed Duke Energy to avoid cleaning up underground plumes of pollution from its ash pits until the contamination crossed into a neighboring property or waterway. Lobbyists for Duke Energy sought the change.

Wake County Superior Court Judge Paul Ridgeway ruled in March that where pollution had spread beyond the property line of a Duke Energy coal ash site, the utility was required to take “immediate action” to fix the problem. The new legislation reverses that environmental court victory.

McGrady said the issue of where polluted groundwater is tolerable is bigger than coal ash dumps and could affect the operation of municipal landfills or sewage spraying operations. The judge’s ruling would have required a landfill with groundwater pollution migrating toward a neighbor to dig it up and remove it instead of fixing it in another way, said McGrady, R-Henderson.

“There are other ways to sometimes deal with this, short of forcing a city to turn off its sewer system or having to transfer all waste to some other site,” he said.

But the legislation allows Duke Energy to study the problem of migrating groundwater pollution indefinitely before proposing a cleanup timetable, said Frank Holleman, a senior attorney for the Southern Environmental Law Center. The group has sued the utility under the federal Clean Water Act over coal ash polluting groundwater and pushed state regulators to hold the company accountable for the toxic waste.

“This bill would allow Duke Energy to leave its coal ash in place, threatening North Carolina communities,” Holleman said.