Gov. Pat McCrory

This story originally appeared here and is published by Carolina Public Press through a content-sharing agreement with The Charlotte Observer.

By Bruce Henderson

Gov. Pat McCrory will ask legislators for broader authority over coal ash disposal, but his plan does not envision eliminating all 33 of Duke Energy’s ash ponds.

The proposal, released Wednesday, calls for site-specific closures. Ash could be removed from some ponds but left in others, drained and capped to keep water out.

Duke has previously said it would weigh similar options.

“The governor and I are adamant that one size probably will not fit all 33 ash ponds,” environment Secretary John Skvarla said. “The engineering and science is going to be a little more complicated than digging them all up and moving them to landfills.”

McCrory still prefers that ash be moved away from waterways, Skvarla said.

Environmental advocates are skeptical the plan will rid the state of contamination threats highlighted by Duke’s Feb. 2 ash spill into the Dan River. They say the McCrory administration has been too soft on the governor’s former employer.

“All this is doing is attempting to put into law what Duke wants to do anyway, which is leave in place its ash at different sites where it continues to be a risk and continues to threaten communities,” said Frank Holleman, an attorney with the Southern Environmental Law Center.

Skvarla said neither McCrory’s staff nor the N.C. Department of Environment and Natural Resources consulted Duke about the proposal.

“This is our legislation, not Duke’s legislation,” he said.

DENR already has authority over ash through the permitting process. The proposed legislation gives the department authority to set priorities and time frames for closing ash ponds, but lets Duke propose how they should be closed.

Duke said it expects to work “constructively” with the governor, lawmakers and regulators in crafting ash management policies.

“Duke Energy has proposed a comprehensive ash management plan with both near-term and long-term actions that will address all retired sites, as well as pond management at active sites, in an environmentally sound way,” a statement said.

McCrory’s plan does not specify a timeline for action on ash ponds. But the legislation requires closure plans within 60 days to 90 days of its passage for four plants – Riverbend, Dan River, Sutton and Asheville.

The N.C. Department of Environment and Natural Resources will press Duke to act by 2015 on ash at the Riverbend plant, which perches above Charlotte’s water supply at Mountain Island Lake, Skvarla said.

Duke has already said it will remove ash from Riverbend’s two ponds and from those at the Dan River power plant where the ash spilled. It will continue removing ash from the Asheville plant and accelerate closing the ponds at its Sutton plant in Wilmington.

The state would use data from environmental assessments, including the proximity of drinking water wells, in deciding how ponds should be closed under McCrory’s proposal.

Other elements of McCrory’s plan would:

• Remove a provision in 2009 legislation that allowed Duke to keep secret some records about its ash dams, including emergency-action plans.

• Shorten the time in which Duke would have to notify the public of spills, from 48 hours to 24, and require annual dam inspections. Inspections are now required every two years, but most are already assessed once a year.

• Strengthen rules for ash used to level construction sites or fill gullies.

The plan will go next week to the legislative Environmental Review Commission, which vets upcoming bills. The commission will devote its Tuesday meeting to coal ash.

“On the surface, a number of things look like what we’ve talked about,” said Rep. Ruth Samuelson, a Charlotte Republican and commission co-chair who had not seen the text of the legislation. “I didn’t see any automatic red flags. But it’s all going to be a matter of the details.”

As McCrory seeks more authority over ash, environmental advocates noted, the Environmental Management Commission said last week it will appeal a judge’s ruling that the state can demand immediate action on ash contamination. McCrory and state House and Senate leaders appoint EMC members.

Superior Court Judge Paul Ridgeway on Wednesday denied Duke’s motion to delay putting his order into effect during appeals.

“This administration seems to say one thing and do another,” said Amy Adams of Appalachian Voices, a Boone-based environmental group. “When the language of the proposed bill is released, the public will have a better idea if there is any substance to it, or if it’s just another PR move.”

A federal grand jury in Raleigh is probing the state’s oversight of Duke, and the EPA has joined a state investigation. Four lawsuits against Duke by DENR over ash contamination of water are before Judge Ridgeway.

Skvarla said McCrory’s proposal could accelerate settlement of those lawsuits. The state has withdrawn an agreement with Duke over the Riverbend and Asheville power plants that was widely criticized by the public as too lenient.

“A confrontational approach could take 10 years to resolve,” he said.

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