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Rowan legislators: Coal ash commission is legal

Days after the N.C. General Assembly passed sweeping coal ash legislation, the nation’s first, Gov. Pat McCrory challenged the constitutionality of an oversight commission, but most Rowan County legislators don’t see it as a problem.
Speaking Sunday in a televised interview, McCrory said the concept of creating commissions that are appointed by the legislature is unconstitutional, regardless of the subject.
His comments point directly to the creation of a coal ash commission that would review and approve coal ash pond classifications and closure plans, according to the Coal Ash Management Plan of 2014. The commission would also study and make recommendations on laws governing management of coal ash, the plan stated.
As of Tuesday evening, McCrory had not signed the management plan into law. During his Sunday comments, McCrory said he planned to sign the bill and later challenge the commission’s constitutionality.
All four of Rowan County’s state legislators disagreed with McCrory’s determination that the coal ash commission was unconstitutional. Republican N.C. Sen. Andrew Brock said the legislature makes other appointments, and constitutionality isn’t an issue.
“I just don’t see why all of a sudden it’s seen as a constitutional issue,” Brock said. “If it is an issue, we would have to take a look at how we appoint all of our boards and commissions. We actually have one full-time staff member that handles boards and commissions.”
N.C. Rep. Harry Warren, a Republican, and N.C. Sen. Gene McLaurin, a Democrat whose district includes part of Rowan, said they were also surprised by questions of constitutionality. McLaurin said questions about the commission’s legality were never raised during the legislature’s just-ended short session.
“The thought of whether it was constitutional or not never surfaced as a concern,” McLaurin said. “I certainly don’t recall any discussion on that topic. At the end of the day, it’s really just about protecting our clean drinking water and making sure our citizens receive what they deserve.”
Republican N.C. Rep. Carl Ford was the only dissenting voice, though his primary concern was that the coal ash commission could mimic functions of North Carolina’s Department of Environment and Natural Resources.
“I don’t think it’s unconstitutional, but I know I don’t like that it’s another, added level of bureaucracy,” he said.
The coal ash commission would be appointed in three different ways — three members by the general assembly upon recommendation of the president pro tempore of the Senate, three by the general assembly upon the speaker of the house’s recommendation and three by the governor — according to the legislation. Each appointment is also required to have knowledge in specific fields. For example, one of the governor’s appointments is required to have experience in economic development, according to the legislation.
One of the most immediate priorities in the coal ash legislation was determining four high-priority sties, one of which is a site near Eden, McLaurin said.
McLaurin said he and other legislators lobbied to include more sites, including Rowan county’s coal ash ponds at Duke Energy’s Buck Steam Station next to the Yadkin River, but were ultimately unsuccessful.
“These are just good solid citizens that want their issues addressed,” McLaurin said about the Rowan County residents living near coal ash ponds. “I just think some specific deadlines need to be put in place for the cleanup.”
All local legislators agreed that Duke Energy should be responsible for the cost of cleanup, without any rate increases. Duke Energy is currently unable to increase its rates because of a moratorium until next January.
Ford said one potential solution is to recycle coal ash in construction projects rather than cap ash ponds in place or bring waste to landfills.
“Airports all across the country have used coal ash to fill in ravines,” Ford said. “If you don’t cap it in place, it still has to go somewhere, and why not use it in construction.”

Contact reporter Josh Bergeron at 704-797-4246.

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