McCrory’s Coal Ash Proposal: All Sizes Fit One

And who's the 'one'? Duke Energy

This week, Gov. McCrory proposed a revision to state law that would seem to be a strong step toward forcing Duke Energy to shut down its 31 coal ash ponds in North Carolina.

It’s not. To understand why not, we need to go over some background.

Let’s first go back to early March, when a Wake County Superior Court judge ruled that Duke Energy must take “immediate action” to stop leakage from its 31 coal ash ponds throughout North Carolina, and that the state had the authority to enforce the ruling.

Then move forward a month to early April, when the state Environmental Management Commission appealed the ruling (from the N&O):

It was an unexpected move by the state—and an unusual one—and put the commission on the same side of the ruling as Duke Energy, which last week also appealed the judge’s decision.

The March 6 ruling by Wake Superior Court Judge Paul Ridgeway reversed a state Environmental Management Commission decision that was reached in December.

The state EMC for several years has interpreted a groundwater pollution rule to mean that it didn’t have to require a polluter to immediately stop the source of pollution, which gave regulators more options to work toward a cleanup. Environmental groups sued to force the commission to return to the way it had imposed the rule before that, but the commission decided it had interpreted the rule correctly.

Environmentalists then sued to appeal the EMC ruling. Ridgeway agreed with them, and said the state had the authority to require an immediate halt to pollution. The EMC adopts and oversees rules for the state Department of Environment and Natural Resources, and is represented by the Attorney General’s Office.

Then we come to the governor’s announcement this week. Look closely at the language in the news release: “The initiative would result in the conversion or closure of all the state’s coal ash ponds [emphasis mine] …” Then look at the draft of the bill.

Environmental groups such as the Sierra Club and Southern Environmental Law Center argue, with ample justification, that ponds near waterways people drink from are unacceptably risky, as demonstrated by the Feb. 2 Dan River spill. They want the state to move the coal ash to lined landfills away from water. John Skvarla, the Department of Environment and Natural Resources secretary, argues that this represents an impractical, “one-size-fits-all” approach to the problem.

The draft legislation provides Duke with a number of sizes and a whole lot of discretion. There’s the move-the-ash option, defined as “clean closure.” Then there’s “closure-in-place,” covering the pond with a plastic lining, clay or soil; and “hybrid closure,” which “entails consolidating ash and ash-affected soil into as small an area as feasible within the ash pond footprint.”

What you might notice about those last two “closure” options is that they incorporate a fairly expansive definition of “closure.” What the draft bill describes here is more like “enclosure,” which isn’t the same thing. “Closure” means, or should mean, “shut down,” not “cover” or “consolidate into as small an area as feasible.” It means, or should mean, get the coal ash the hell away from the water.

And who would determine the “feasibility” of any of these options, or others unmentioned?

“The owner shall provide a proposed closure method. The proposed closure method must demonstrate that where groundwater quality is degraded, restoration to the level of the groundwater standards will be obtained as is economically and technically feasible. The selected proposed closure method shall be from one of the following alternatives, and shall include, but not be limited to” the three “closure” options.

Well, that certainly isn’t one-size-fits-all. That’s all-sizes-fit-one, “one” being Duke Energy, which gets to choose the size. This kind of regulatory feint may sound familiar to you, being akin in spirit to DENR’s ride to Duke’s rescue to defend it from coal ash lawsuits, as the Associated Press reported just after the Dan River spill.

DENR’s stated reason for imposing minimal fines instead of allowing the lawsuits to play out has always been that lawsuits take too long, as Skvarla reiterated this week: “A confrontational approach could take 10 years to resolve.”

Yes, possibly. It’s also true that regulators’ exercise of power clearly granted to them by law, and reinforced by the judge’s ruling, would resolve this entire matter quickly and get Duke Energy working on a plan to move heaps of toxins away from the sources of people’s drinking water. That’s an option that the State of North Carolina has not seen fit to explore.