Coal ash spill could push NC to move more aggressively on environmental threats

Feb 22 - News & Observer (Raleigh, NC)

North Carolina's massive coal ash spill into the Dan River this month was decades in the making. But for much of that period, the lagoons where ash is stored attracted little attention or regulatory oversight.

In the past five years, that attitude slowly started to change, as it became increasingly clear that Duke Energy's coal ash pits across the state were leaching toxins into the environment.

The blowout at a Duke lagoon near Eden on Feb. 2 has refocused attention on the power company's 14 ash storage sites and raised a host of questions about how Duke and state regulators have dealt with an issue that was known to pose serious risks to the environment.

The accident may mark a turning point in the state's hands-off approach to coal ash storage, which is under limited regulation in North Carolina as well as in other states. If that happens, Duke would likely have to bulldoze its lagoons, where ash soaks in water, and store the material elsewhere.

"It's impossible for any elected official to ignore this problem now," said D.J. Gerken , a senior lawyer for the Southern Environmental Law Center , which has pressed for ash pond closures for several years. "Everyone knows that's where (Duke) is going to have to go. They're just putting if off as long as they can."

Duke, based in Charlotte , has publicly apologized for the accident -- a gusher of an ash-and-water slurry from 48-inch pipe lasting seven days -- and has vowed to clean up the mess. Company officials are reviewing the feasibility of shutting down the lagoons, which are huge open pits in the ground where mounds of ash from coal-burning power plants are dumped and mixed with water.

Federal authorities have launched a criminal investigation of Duke and the N.C. Department of Environment and Natural Resources , the agency responsible for protecting drinking water, lakes and rivers under the federal Clean Water Act.

The U.S. Fish & Wildlife Service said last week that up to 39,000 tons of ash from Duke's spill have traveled about 80 miles downstream, coating the river bottom in a layer of sludge and endangering mollusks, fish and other aquatic wildlife.

"It would seem we're beyond the point of just doing additional monitoring," said Robin Smith , who retired from DENR in December 2012 as Assistant Secretary for Environment. "There are thousands of sites with contaminated groundwater in the state.

"The response to that is to ask the responsible party to remove the source of the contamination. The reality is, unlike the dry cleaner, Duke has not been told to remove the source of pollution."

A gradual awakening

The state's utility companies in the past have said that the lagoons are safe to operate and that mounting data on toxic pollution was inconclusive. All 14 facilities, containing 32 lagoons, have been owned by Duke Energy since the company bought Raleigh -based Progress Energy and its assets in 2012.

Duke and DENR officials say that treated drinking water that comes out of the Dan River is safe because the ash particles are filtered out during the treatment process. However, health officials advise against eating fish caught in the affected stretch of the river.

North Carolina's ash pits were installed decades ago, at a time when coal-burning power plants required no pollution controls; the ash facilities remained largely exempted from regulatory oversight until recently. The exemptions might have continued indefinitely if not for a December 2008 dike rupture in Tennessee that released more than 5 million cubic yards of ash slurry over 300 acres and required a cleanup costing more than $1 billion .

The overnight awareness of coal ash risks led to changes in North Carolina and elsewhere. The Department of Environment and Natural Resources began requiring groundwater testing at the facilities in 2009, and the state legislature ended an exemption for the ash lagoons from the state's dam safety laws.

Nationally, the U.S. Environmental Protection Agency has renewed its on-and-off plan to regulate coal ash as a hazardous waste or under some other legal framework; the EPA's proposed standards are expected this year.

In South Carolina , two utility companies have announced long-term plans to close their wet ponds and to put ash into dry storage in modern, lined landfills.

Even so, North Carolina is far ahead of many states that don't require groundwater testing around coal ash storage facilities, said Lisa Evans , an attorney for Earthjustice, a public interest advocacy law practice that sued the EPA two years ago to force the agency to issue safety standards for storing coal ash.

The move to tighten oversight of coal ash ponds met resistance here as Republicans gained control of North Carolina's legislature in the 2010 elections. A bill entitled "An act to increase regulatory efficiency in order to balance job creation and environmental protection" required the state "to reduce the burden" on regulated companies and disallowed state safety standards that are stricter than federal standards.

The law passed in 2011, at a time that DENR, still under the control of Democratic Gov. Bev Perdue , was tightening safety standards for coal ash pools.

"We were headed in the direction of more regulation," said Dee Freeman , who headed DENR for four years until January 2013 . "If you can't be more stringent than the federal regulations, then it presents a real dilemma."

Big costs ahead

It's not as if the risks were totally unknown. Even before the Tennessee accident, the EPA issued a report in 2007 assessing several dozen cases of environmental harm caused by hundreds of coal ash basins around the country. The report cited such incidents as well water turning green, sinkholes, spills, deformed fish and numerous warnings not to eat fish.

A North Carolina case involved selenium buildup causing fish population declines in the 1970s and 1980s in Hyco Lake at the Roxboro Steam Station , then owned by Carolina Power & Light .

During the same time frame, selenium accumulations that resulted from a coal ash pond overflow into Belews Lake -- a cooling reservoir for Duke's Belews Lake Steam Station -- resulted in the elimination of 16 of 20 fish species in the lake.

The dangers of coal ash are not always so clear cut. Utility companies store the incinerated dust on site only because they can't sell all of it to the construction industry, which uses the ash to make cement for concrete blocks and other building materials. Recycling ash for construction use is the utility industry's preferred option.

Ash is a neurotoxin and carcinogenic when ingested in high concentrations. But groundwater violations are typically in trace amounts and result from years of accumulation. Groundwater testing is done where the water is not being tapped for drinking. If the contaminated water trickled into a river, the contaminants would become diluted and likely undetectable.

Replacing the ash pits could run up a steep bill, even for a company like Duke, the nation's largest electric utility. Duke stores 106 million tons of ash, 84 million tons of which soak in lagoons, while 22 million tons are are kept dry as fill material or in dry basins, Duke spokeswoman Erin Culbert said.

A single state-of-the-art lined landfill for storing 2.9 million tons of ash in dry form will cost the Santee Cooper utility in South Carolina $24.5 million , said company spokeswoman Mollie Gore .

Culbert said Duke generated more than 3 million tons of ash last year, and most of that is being stored in dry form.

"We are very proud of the transition we've already accomplished at most of our operating plants to manage...ash in lined landfills," Culbert said. "In light of the Dan River incident, we are taking another look at all our ash management practices and basin closure plans."

'It's in our rules'

When Republican Gov. Pat McCrory took office in 2013, he quickly declared that his administration would put an end to traditional regulation of business and would instead adopt a "customer service" attitude to help companies get speedy permits and resolve legal disputes with the state.

Environmental organizations threatened to file lawsuits against the coal ash pits under the citizen enforcement provision of the Clean Water Act. The federal law gives state agencies 60 days to preempt citizen suits by taking their own action.

DENR filed suit, alleging that groundwater tests showed that the presence of dangerous chemicals exceeded drinking water safety standards at the state's coal ash facilities. The suits also charge that the lagoons pose a danger to public's health and safety and serious harm to the state's water resources.

Duke countered that the alleged violations could be the result of a natural occurrence of chemicals in the environment and more research would be needed to assess Duke's responsibility.

The agency and Duke reached a settlement over two of the facilities. The settlements gave Duke the option to redirect illegal leaks to culverts that already had state permits or to apply for state permits for the leaks.

The settlement gave Duke time to come up with a long-term solution. It included a $99,111 fine.

DENR Secretary John Skvarla III said last week the settlement prevented costly litigation that could have taken more than a decade to resolve through the courts. He said that the resolution will now take about five years because DENR and Duke are cooperating rather than clashing.

Agency officials also said they can't take an aggressive stance toward Duke just because it's a Fortune 500 corporation with deep pockets.

"Duke is not the only permittee in the state that's contaminating groundwater," said Tom Reeder , director of DENR's Division of Water Quality . "We were just treating Duke the same way we treat other permittees. It's all set out in our rules."

Since the accident, DENR asked Wake Superior Court Judge Paul Ridgeway to hold off ruling on the proposed settlement to give the agency time to review its oversight policies in light of the spill.

Meanwhile, health hazards continue to bubble to the surface from coal ash sites. In October, Duke agreed to pay up to $1.8 million for a new water pipe for a neighborhood near its Sutton power plant in Wilmington after the Cape Fear Public Utility Authority found elevated levels of boron in drinking water wells. As part of the deal, Duke required Cape Fear not to drill new wells in the area.

And in November, DENR directed Duke Energy Progress , formerly Progress Energy , to provide a household near Asheville with drinking water because the well water was contaminated with iron and manganese and was unsafe to drink. The home in Buncombe County is 1,500 feet from a coal ash pond at Duke's Asheville power plant.

Murawski: 919-829-8932

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