2014 Legislative Session Begins With Coal Ash

Today opened the 2014 “short” session of the N.C. General Assembly. The main purpose of the off-year short session is to make adjustments in the two-year budget adopted by the legislature in the first year of the biennium.  In addition to appropriation  and revenue bills, the legislature can  take up any bill that passed  one chamber of the legislature in 2013 and bills recommended by interim special committees or study committees.  

One of the first bills introduced in the short session turned out to be a coal ash bill.  Given concerns about environmental problems associated with coal ash impoundments in the state (described here  and here),  a bill had been expected. The bill  surprisingly turned out to be  identical to  Governor Pat McCrory’s  “Comprehensive Coal Ash Action Plan”. The governor’s legislative proposal  initially received a  chilly reception from lawmakers, but has  new life as Senate Bill 729  (“Governor’s Coal Ash Action Plan”).  An earlier post analyzing  the Governor’s proposal for coal ash legislation also describes Senate Bill 729.

The bill  sets aggressive timelines for assessment and remediation of groundwater contamination around the existing  coal ash ponds.  The bill also requires Duke Energy to take steps to find and eliminate unpermitted discharges from ash  impoundments to surface waters.

The bill does not set a hard date for transition away from wet disposal of coal ash, but directs the Department of Environment and Natural Resources (DENR) to prioritize  existing coal ash impoundments for closure.  There is no deadline for completing  closure  of all 33 ash impoundments. The bill itself puts  four Duke Energy impoundment sites  at the top of the priority list for closure — Riverbend (located near Charlotte’s drinking water source);  the Asheville plant;  the Dan River plant; and  the Sutton plant near Wilmington. The Asheville site  has already been linked to contamination of a private drinking water well.  Groundwater contamination near the Sutton plant has required closure of several public water supply wells.

The bill identifies three methods for closing an ash impoundment  — capping the ash in place; removing the ash to an off-site disposal facility (such as a landfill); and  a hybrid approach that would involve consolidating the ash into a smaller footprint before installing an engineered cap. The bill provides only one  very broad standard for closure:  the closure method should result in restoration of contaminated groundwater to the  state groundwater standards to the extent  economically and technically feasible. There are no technical standards for the individual closure methods and no criteria  for selecting the appropriate closure method for an individual  site.

The bill  remains silent on standards for  future coal ash disposal, although it amends state law to classify coal ash removed from an impoundment as solid waste.  Presumably that means ash removed from an  impoundment during  closure  would have to be disposed of under the solid waste laws — most likely in a landfill. The option of using coal ash as structural fill on a construction site would still be available, although the bill puts a temporary “moratorium” on large scale structural fill sites. (Projects using less than 5,000 cubic yards of coal ash for fill would not be affected.)

The Senate had always been expected to  move first on coal ash legislation, but state House members have their own ideas about regulation of coal ash.  Senate Bill 729  just starts the   coal ash debate in the legislature.