Conservation groups challenging coal-ash 'boundary' at Sutton plant

Jan 17 - McClatchy-Tribune Regional News - Kate Elizabeth Queram Star-News, Wilmington, N.C.

Environmental groups have filed a lawsuit against the N.C. Environmental Management Commission, appealing a prior decision that state officials were correct in declining to fine or stringently monitor for potential groundwater contamination from coal-ash ponds at 14 power plants throughout North Carolina, including the Sutton Plant in Wilmington.

Conservationists have long opposed the ponds -- large, in-ground basins where utility companies pump and store coal-ash slurry, a mixture of water and fly ash, a lightweight byproduct of burning coal. Coal ash is loaded with toxins, including arsenic, magnesium and thallium, which can leech into groundwater supplies and affect nearby residents and businesses.

"We're trying to get the state to clarify how they handle coal ash," said Kemp Burdette, the Cape Fear Riverkeeper. "There's not a real good understanding of what all this stuff is, but what we do know is that there's really a lot of some pretty toxic stuff in the groundwater."

The lawsuit, filed by the Southern Environmental Law Center on behalf of Cape Fear River Watch, the Sierra Club and others, takes issue specifically with a December vote by the commission that upheld the state's interpretation of groundwater contamination rules. As currently enforced, the rule grants Progress Energy Carolinas and Duke Energy Carolinas what's known as a "compliance boundary" -- an imaginary line 500 feet from the edge of the ash basin inside of which groundwater contamination isn't punishable by law.

"It's the point at which the state could take enforcement action," said Erin Culbert, a spokeswoman for Duke Energy. "These organizations would like to see this removed. They'd like to see virtually no boundary, where the state could take action right at the ash basin."

The utility companies oppose that notion, Culbert said, because most coal-ash contamination occurs inside the compliance boundary.

"Up to this point, the vast majority of exceedances of groundwater standards are on-site detections of iron and manganese," Culbert said. "Those are common elements in Piedmont soils in North Carolina. They can influence the taste and odor of drinking water, but they cause no health concerns. Exceedances of other compounds have been sporadic."

Environmental groups allege that the law, as written and enforced, allows the utility to pollute and contaminate the state's groundwater supply with little or no recourse. According to court documents, at least one well inside the compliance boundary at the Sutton plant has exceeded state standards for arsenic four times in a two-year period.

"We're asking that to be corrected. If we win, the result is that the law will clearly require all 14 of these facilities to take action," said DJ Gerken, a senior attorney with the Southern Environmental Law Center. "Right now they're not even starting down that road, because they're taking the position that they don't have to because they haven't crossed that imaginary line around the facility."

By 2014, the Sutton plant will switch from coal to natural gas, at which point the ash basins there -- one comprising 54 surface acres, the other 82 surface acres -- will be decommissioned and eventually closed. Two years ago a portion of one of the facility's ash basins failed, sending a wave of clay and ash cascading down a raised embankment. To prevent further contamination, the plaintiffs would prefer that the utilities to move the coal ash to lined, covered landfills, though that provision is not mentioned specifically in the lawsuit.

"It's certainly something we believe," Gerken said. "The only thing that works in the long term is to stop dumping a slurry of coal water into an unlined pit in the ground."

Because the court case challenges a ruling rather than suing a specific entity, it's likely the proceedings will move more quickly than in a typical lawsuit. Gerken said he expects a hearing in approximately 90 days, though from there it's difficult to predict when a final decision will be reached.

"This case is really not about the facts at the 14 facilities, and for that reason it's going to move faster," he said. "What we'll get is a clarification of the law."

Kate Elizabeth Queram: 343-2217

On Twitter: @kate_goes_bleu