New North Carolina coal ash commission begins oversight of Duke Energy dumps as governor sues

IndustriesAssociated Press

A new state commission overseeing the cleanup of Duke Energy's coal ash dumps in North Carolina was sworn in Friday as Gov. Pat McCrory sued to challenge the panel's formation.

The new nine-member Coal Ash Management Commission was created by a law passed in response to the massive Feb. 2 spill at a Duke dump in Eden, which coated 70 miles of the Dan River in gray sludge. The ash that remains after coal is burned to generate electricity contains numerous toxic heavy metals, including lead, arsenic and mercury.

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"My goal for this commission is to establish the most effective and most efficient management of coal ash in America," said Michael Jacobs, the chairman of the new board. "This commission will focus on science, safety and economics, not politics."

But before the commission even began its work, the governor sued his fellow Republican leaders at the state legislature, claiming its creation violated the North Carolina Constitution by infringing on his executive authority. The legislature appoints six of the panel's members, leaving the governor the remaining three.

Senate Leader Phil Berger and House Speaker Thom Tillis have said it's essential for the commission to be independent. McCrory worked at Duke for 29 years prior to becoming governor. Environmental groups have criticized decisions by his administration before and after the Dan River spill that they contend improperly favored the company.

Some of those state regulatory decisions are now the subject of a federal criminal investigation. The governor has repeatedly denied his former employer has received any special treatment.

Duke has 32 active and retired ash basins at 14 sites across the state, containing more than 100 million tons of ash.

Under the new law, Duke is required to remove its ash at four priority sites within five years. The remaining dumps are to be either removed or capped in place by 2029. It will be up to the commission to decide which remedy is required at each specific location.

State officials say Duke's leaky unlined dumps are contaminating surrounding groundwater and environmentalists have called for all the ash to be removed to lined landfills away from rivers and lakes. Duke has said it will seek the less expensive option of leaving at least some of the dumps in place, covered with a layer of plastic sheeting and topped with soil to prevent rainwater from seeping through the pile and contaminating the surrounding area.

Speaking before the commission on Friday, a high-ranking Duke official compared coal ash to coffee grounds.

"Think of it as making coffee tomorrow morning," said Richard Baker, Duke's director of water and natural resources. "If you don't get any water to that coffee, you simply don't have any coffee to drink afterward. We're just cutting off the source of water to that material."

Jacobs, the founder of a private-equity fund, was appointed by McCrory to lead the commission. Jacobs said the board's job will be to balance the safety of the state's citizens and environment against the massive cost of the cleanup.

Duke has indicated removing all the coal ash from its dumps could cost up to $10 billion, an expense the company intends to pass on to its customers in the form of higher electricity rates. Environmental groups and consumer advocates say Duke's shareholders, who have profited for decades by cheaply dumping the company's waste into open-air pits, should foot the bill.

Either way, Jacobs said, nearly everyone in North Carolina will end up feeling the squeeze.

"The citizens who will suffer most from higher electricity bills are the poor," Jacobs said. "... Duke shareholders include our state university endowment funds, charitable organizations, churches, and young couples saving for their children's education. So regardless of how the cleanup is paid for, it will impact the citizens of North Carolina."

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