After asking the General Assembly last week to make changes to the Coal Ash Management Act (CAMA) to allow the Department of Environmental Quality (DEQ) to revisit its coal ash pond risk rankings in 18 months, the department is now opposing proposed legislation which it says goes too far in changing the law.
“The department cannot support this proposal because it substantially weakens environmental protections contained in the current law,” DEQ Secretary Donald van der Vaart wrote in a letter sent to Senate President Phil Berger and House Speaker Tim Moore on May 24.
The secretary argues that DEQ had hoped to revisit the rankings only after substantial improvements had been made on coal ash impoundments by Duke Energy and only after a permanent alternate water supply had been provided to area residents.
“Allowing reconsideration might provide for less expensive closure options that provide equal or better environmental protection,” writes van der Vaart. “Unfortunately, the draft legislation undermines all of the efforts of this Department to implement the Act. For example, our proposal would eliminate future uncertainty by requiring Duke Energy to actually hook nearby residents up to permanent water supply within 18 months. In contrast the draft gives Duke Energy over one year to come up with an enforceable plan and no deadline to complete the work.
“Our staff has worked for over two years to identify the extent of groundwater contamination, while the proposed legislation used arbitrary criteria to determine who is provided a permanent alternate water supply,” he adds. “Also, under the proposed legislation permanent water is not provided if it costs Duke Energy too much money. Instead, filters would be provided, which may not be effective at removing some potential contaminants.”
Filters could also prove to be a problem for some residents near the Belews Creek facility who have low producing wells. One resident recently told both the Walnut Cove and Stokes County boards of commissioners that her well only produces half a gallon a minute and filtering out the arsenic, which has been tested at almost 100 units over what is legally allowed, would cut her water supply in half.
“The proposed legislation also ignores the required dam safety repairs which, as we stated at the time of our classification, Duke Energy must complete by a date certain in order to be considered for possible reclassification,” writes van der Vaart, adding that the proposed legislation could lead to delays in coal ash pond closures. “We urge you to withdraw this legislation and instead allow reconsideration of these classifications 18 months from now as our department originally recommended.”
The legislation in question is a proposed house committee substitute to SB71 which was referred to the House Committee on Appropriations on Tuesday.
The proposed legislation argues the broad changes to CAMA are needed following the dismantling of the Coal Ash Management Commission earlier this year, noting that the commission was supposed to provide final oversight over risk classifications and be able to provide expertise on power supply resource planning, economic development, and the costs of electricity generation and rates — all facets which the legislation argues is beyond the jurisdictional responsibilities of the DEQ.
The proposed legislation sets the framework for reconstituting the Coal Ash Management Commission, in accord with court rulings, in order to provide “accurate classifications.”
The proposed legislation would ask the State Water Infrastructure Authority to determine whether or not a connection to a public water utility for residents living near a coal ash impoundment would be cost prohibitive. Duke Energy would be required to submit a plan for water replacement for each household to the State Water Infrastructure Authority by Aug. 1, with the Authority deciding to approve or disapprove the plan no later than Dec. 1. No deadline is set for the execution of the plan.
Under the proposed legislation the seven member, reduced from the original nine, Coal Ash Management Commission would be largely, five members, appointed by the governor and confirmed by the General Assembly. The President of the Senate and Speaker of the House would appoint the remaining two members. Expertise of members would include waste management, public health, power supply resource planning, electricity generation costs, and science or engineering in hydrology or geology.
Members would serve for four years, with initial appointments being made by June 1.
Under the proposed legislation the DEQ must submit its risk classifications no later than 10 days after the last member is appointed, and the commission would have 120 days to approve the risk classifications or they would be deemed as disapproved. The commission has the ability to extend the time for an approval by an additional 120 days, and disapproval through inaction would still be subject to appeal.
The proposed legislation also alters how members are selected for the North Carolina Mining Commission, moving the appointment of two members previously appointed by the Speaker of the House and the President of the Senate to the Governor, and requiring General Assembly confirmation for all members appointed by the Governor.
Similarly, the appointment of two members of the North Carolina Oil and Gas Commission previously appointed by the Speaker of the House and President of the Senate would be moved to the Governor, again requiring confirmation by the General Assembly.
Term limits for members of both commissions would decrease from six years to four years.
A full version of the proposed legislation can be found at http://goo.gl/NzCYNl.
Nicholas Elmes may be reached at 336-591-8191 or on Twitter @NicholasElmes.