Much less than it’s cracked up to be

Much less than it’s cracked up to be

- in Weekly Briefing

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Ballyhooed coal ash “fix” promises to be neither prompt nor adequate

If ever there was a subject on which critics of North Carolina’s current state political leadership and its serial inactivity when it comes to protecting the environment would love to be proved wrong – myself included – it is coal ash. A week ago in this space in a column entitled “The great coal ash blunder,” I slammed state leaders for their then-Congress-like gridlock in addressing one of the most important environmental crises of our times. As the piece noted:

In other words, despite widespread agreement that something simply must be done (and the compelling argument of environmental experts that the only truly safe and lasting solution is to expeditiously close the current pits and ponds – all of which are currently leaking – and move the ash to lined landfills away from water supplies), state leaders have produced the following: Nada. Zip. A big fat goose egg.

A day later, however, the situation seemed to change dramatically. Hours after saying that they would head home without any agreement at all, legislative leaders hung a quick U-turn and pulled a 45-page coal ash “clean-up” bill out of their hat that they then passed and sent to the Governor. The measure even won grudging approval from some environmental advocates in the General Assembly and attracted only 15 negative votes between the House and the Senate.

Almost immediately after the bill passed and despite voicing the opinion that part of it was unconstitutional (click here for more on that rather strange bit of political calculus), Gov. McCrory signaled that he would sign the bill into law.

All told, it was enough to make a critic conclude that a large dish of crow might actually be on the menu. “Thank goodness, I was wrong,” went the initial thinking. “If it took Nixon to go to China, maybe it takes a former 29-year Duke Energy employee to clean up North Carolina’s coal ash mess!”

Barely a beginning

Sadly, a look beyond the headlines and the self-congratulatory press releases quickly revealed that the supposedly comprehensive legislation was and is anything but. In point of fact, the legislation sitting on the Governor’s desk (he actually has 30 days to decide what to do with it rather than the normal 10 since legislators have adjourned for the year) is a weak and inadequate measure that promises, at best, a small dent in the problem in some areas and quite arguably makes things significantly worse in others. The experts at the Southern Environmental Law Center (who have spent years fighting obstruction from both Duke and state regulators on the coal ash issue) released a statement that explains why:

The coal ash bill issued by a conference committee of the N.C. General Assembly today fails to require cleanup of 10 coal ash sites across North Carolina by allowing Duke Energy to leave its polluting coal ash in unlined, leaking pits at 10 of 14 sites. The bill leaves at risk people in nearby and downstream communities throughout North Carolina and other states. The bill seeks to weaken existing law and protect Duke Energy from taking responsibility for its coal ash waste.

Allowing coal ash to be left in unlined, leaking pits across North Carolina with documented groundwater contamination at each site is not a cleanup plan nor does it protect the people of North Carolina. Many sites across the country where coal ash has been covered up or “capped” in place continue to experience high levels of toxic pollution. Covering up coal ash and calling sites “closed” does not stop or clean up pollution.

And this is from another statement released on behalf of a group of experts by the group Appalachian Voices:

Despite promising strong legislation that would protect communities and their drinking water from toxic pollution, both the House and Senate put forward weak proposals that let the nation’s largest utility off the hook for its mess. Although a conference committee added language that could potentially limit how many low-risk coal ash ponds can be capped in place, the provision offers few assurances that groundwater will be adequately protected….

Unlined coal ash pits are leaching arsenic, chromium, mercury, lead, cadmium, boron, and other pollutants into rivers, streams and groundwater at every single Duke Energy facility in this state. Under public pressure, Duke Energy has already publicly volunteered to remove ash from the Dan River, Riverbend, Sutton and Asheville facilities.

Put simply, the deal agreed to by legislative leaders amounts, at best, to only a few slices of the full loaf that North Carolinians had (and still have) reason to expect and demand when it comes to safely disposing of this dangerous and amazingly abundant waste product. Rather than ordering Duke to clean up its mess by moving all of the ash to lined landfills away from water supplies (and commanding that it get started ASAP given that the process will take many years under the best of circumstances), lawmakers have essentially agreed to what Duke wanted all along: more study and monitoring in most existing sites.

In fact, the new plan could well result in many of the existing coal ash dumps simply being left where they are (i.e. “capped in place”). This is despite the fact that all of the sites are already leaking poisons in violation of existing state law. To make matters even more objectionable, the legislation does nothing to require Duke to pay for the clean-up and instead lays the groundwork for the cost to be passed onto consumers. Again, here are the folks at Appalachian Voices:

Just as Duke Energy says it has cleaned up the Dan River by removing about 7 percent of the coal ash spilled in February, the legislature is trying to call this a historic cleanup plan when it’s only ensuring cleanup for the four sites Duke already committed to,” said Donna Lisenby, global coal campaign coordinator for Waterkeeper Alliance. “To say it falls short is an understatement.”

The utility posted $609 million in profits this quarter, but has balked at footing the bill for complete excavation and removal of coal ash at all of its sites. The bill would allow Duke Energy to begin raising rates to recoup cleanup costs in as little as five months.

Par for the course

Ultimately, none of this is terribly surprising for a legislature and an administration that have made clear from Day One that they have zero interest in strong environmental protection laws or reining in the abuses of large corporations. Even as the Governor was signaling his approval of the coal ash bill, he was also, by all indications, preparing to approve another compilation of gifts to corporate polluters that was rammed through the General Assembly just a few days before.

Moreover, as was noted here last week, there was every incentive for lawmakers and the Governor to simply pass something – anything – and declare victory in order to blunt the criticism of people like Senator Kay Hagan. After all, the coal ash problem is complex and difficult for average voters to get their arms around. Add to this the all-but guaranteed public blessing of cheerleaders in the conservative “think tanks” for any “solution” and it’s a wonder it took so long to do what they did.

The only losers in all of this, of course, are the citizens of North Carolina. They will now have to depend once again on courageous and outgunned nonprofit lawyers, the courts and perhaps the federal government to protect them from being forced to pay Duke’s bills and consume its poisons in their drinking water.

Let’s hope this latest episode inspires the would-be protectors to redouble their efforts.

About the author

Rob Schofield, Director of NC Policy Watch, has three decades of experience as a lawyer, lobbyist, writer and commentator. At Policy Watch, Rob writes and edits daily online commentaries and handles numerous public speaking and electronic media appearances. He also delivers a radio commentary that’s broadcast weekdays on WRAL-FM and WCHL and hosts News and Views, a weekly radio news magazine that airs on multiple stations across North Carolina.
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