Legislation proposed for closing Asheville ash ponds

ASHEVILLE – Calls for closing decades-old coal ash ponds at Duke Energy’s Asheville plant picked up momentum this week with Gov. Pat McCrory urging that the utility be required to draw up a plan for making it happen and one the legislature’s top lawmakers promising to go a step further.

McCrory proposed a bill mandating that the utility develop plans to close the leaky ash ponds at the Lake Julian facility within 60 days of the legislation’s passage.

The proposal also requires closure plans for lagoons at three other North Carolina plants, including the Dan River facility, where a massive spill in February coated 70 miles of the waterway with toxic sludge.

McCrory said the plan would result in the “conversion or closure” of the ponds at the utility’s 14 coal-fired power plants across the state and the closing of legal loopholes that allowed Duke to avoid cleanup of contaminated groundwater.

The governor said legislative leaders should take up the measure in the upcoming short session next month.

“I know that the public and the General Assembly share our concerns about coal ash, and I ask them to work with me to make sure we tackle this problem head-on to address longstanding problems caused by the ash basins,” McCrory said in announcing the initiative.

State Sen. Tom Apodaca, R-Henderson, said Thursday that McCrory’s proposal doesn’t go far enough. He also said the administration should have consulted with legislative leaders.

“The governor doesn’t do legislation. The legislature does legislation,” he said. “He should have worked with the folks in the legislature to be on the same page getting legislation drafted.”

Environmental groups also were critical of the governor’s plan, saying it is vague and doesn’t contain language specifically requiring Duke to move the ash ponds away from rivers and lakes.

Apodaca, chairman of the Senate Rules Committee, said he and Senate President Phil Berger plan to sponsor a bill in the upcoming session to toughen requirements on the handling of coal ash. He said staffers are working on the third draft of the legislation.

The bill will contain more stringent requirements than what the governor outlined, including the setting of deadlines for the removal ash at the Asheville plant and some of the others, Apodaca said. Those deadlines have not yet been determined, he said.

“We’re going to mandate actual timeframes to close these (ponds), especially those that are near water sources,” he said. “We’re determined to get rid of the wet ash pond at Asheville.”

McCrory’s bill says a closure plan for the Asheville ponds, which cover 91 acres next to the French Broad River, must be submitted to the N.C. Department of Environment and Natural Resources no later than 60 days after ratification.

The proposal also said the plan must “include detailed provisions that ensure all ash in the impoundments will be moved to a lined structural fill, a lined landfill, or an alternative disposition approved by the department.”

The bill doesn’t say when closure plans, which also would be required for Duke’s Riverbend and Sutton facilities, would have to be implemented.

It’s the possibility of “an alternative disposition” approved by state regulators that worries D.J. Gerken, an attorney with the Southern Environmental Law Center in Asheville.

“It does require a closure plan for Asheville, but doesn’t say what a closure plan is required to accomplish,” Gerken said. “It requires a plan, but no specific, substantial action.”

McCrory’s proposal, released Wednesday evening, said closure plans would be considered on a site-by-site basis. It provides Duke with the options of removing the ash or leaving it in place while placing caps over lagoons to keep water out.

“The governor’s preference is that these ponds are moved,” McCrory spokesman Josh Ellis said. “The end result will be moving many, if not all, coal ash ponds. That will be a decision made by scientists and engineers based on what is most environmentally sound.”

Duke spokesman Dave Scanzoni said the company has proposed an ash management strategy that will handle the waste in an environmentally sound way.

“Duke Energy looks forward to working constructively with the governor, lawmakers and regulators to determine the best coal ash management policies for North Carolina,” he said.

The utility said in a March letter to state officials that it might convert to producing dry ash at the Asheville plant rather than the wet material that has leached toxic chemicals from the storage ponds into the groundwater. It also said it would consider closing the plant.

Environmentalists want regulators to use what they say is the state’s existing legal authority to haul ash to lined landfills licensed to handle hazardous waste. Coal ash contains harmful chemicals such as arsenic, mercury and lead.

Wake County Superior Court Judge Paul Ridgeway this week denied a motion by Duke asking for a stay of his March 6 ruling finding that current state law gives state regulators the authority to require the utility to clean up its coal ash pollution.

Federal prosecutors have issued at least 23 subpoenas seeking records and grand jury testimony as part of a criminal investigation into the state’s oversight of Duke’s coal ash dumps. McCrory, who worked for the company for 28 years before retiring to run for governor, has denied that his administration gave any special treatment to his former employer.

Well findings at Duke Energy's Lake Julian plant in 2011 and 2012

• Chromium at eight times state drinking water standard in one well and three times standard in second. Chromium compounds are carcinogenic to humans.

• Manganese at 53 times state drinking water standard in one well, 10 times standard in a second and 142 times standard in a third. Nervous system disturbances have been observed in animals after high oral doses of manganese.

• Thallium at two times state drinking water standard in two wells. Thallium can enter food because it is easily taken up by plants through roots. Exposure to large amounts for brief periods can damage the nervous system and heart and can cause death.

What is coal ash?

Coal ash typically contains arsenic, barium, cadmium, calcium, chromium, copper, lead, magnesium, manganese, mercury, molybdenum, nickel, phosphorous, potassium, selenium, silver, sodium and zinc. Some of these materials are toxic and can cause cancer and nervous system disorders.