Coal ash cleanup to start, but oversight plan challenged

Editorial by Wilmington Star-News, November 18, 2014.

At last, Duke Energy has announced that next year it will begin relocating some of the 7 million tons of coal ash in ponds at the shuttered Sutton Steam Plant off U.S. 421 North. The company also plans to excavate coal ash from several other plants around the state. It's good news, but the action will address only about 30 percent of the millions of tons of ash the company's ponds hold.

Environmentalists have been trying to force cleanup of ponds storing millions of tons of ash residue produced by coal-fired power plants in North Carolina. The company will move the ash to existing lined landfills, allowing work to begin sooner than if new landfills had to be built.

But there are still questions of who will ultimately pay the cost of the relocation. The utility has sought permission to bill customers, but the customers didn't sign on to a storage plan that has resulted in spills – including the one at the Dan River plant that awoke state residents to the danger of coal-ash ponds. Coal-ash pollution from the Sutton plant is heading toward the drinking water supply at Flemington, causing Duke and the Cape Fear Public Utility Authority to work together to tie the small residential area into the main water system. Another variable is who will oversee the cleanup and determine what Duke Energy and its Duke Energy Progress arm (the former Progress Energy) will have to do.

Gov. Pat McCrory and former Govs. Jim Hunt, a Democrat, and Jim Martin, a Republican, are suing over the legislature's creation of a panel to monitor the coal-ash cleanup statewide. The General Assembly has six appointments to the governor's three; McCrory contends its creation is an unconstitutional encroachment on his executive authority.

He did not pose objections when lawmakers created commissions on oil, gas and mining, and he allowed the bill creating the coal-ash commission to become law without his signature, as opposed to vetoing it.

But at stake is the larger issue of balance of power as the state constitution intended it. The legislature's job is to pass laws, but it is the executive branch's duty to carry them out. Independent commissions, especially those that limit the ability of the governor to appoint members, can skew the balance of power in favor of the legislature.

In the case of the coal-ash mess, critics say McCrory, a former Duke Energy employee, is too close to the regulated party; his administration's recent decision to hire a Duke Energy lawyer to help oversee the coal-ash cleanup reinforced their concerns. But wresting power away from the executive branch sets a bad precedent.

The legislature also has considered diluting the executive branch's authority to administer the Medicaid program, instead creating yet another commission. Senate President Pro Tem Phil Berger, R-Rockingham, and House Speaker (and U.S. Senator-elect) Thom Tillis contend the commissions are within the legislature's scope of power. But they could have avoided the lawsuit by agreeing to McCrory's request for an advisory opinion from the N.C. Supreme Court. That is still possible, if the two sides can agree to abide by the court's decision.

Removal of toxic coal ash is too important to be tied up in lengthy litigation.

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