Posts Tagged ‘Clean Water Act’

Residents Near Duke Ash Ponds Told To Not Drink Their Water

Monday, June 15th, 2015 - posted by Cody Burchett
Residents impacted by coal ash join together with concerned citizens to rally outside the annual Duke Energy shareholder’s meeting in Charlotte on May 7. Photo courtesy of NC WARN

Residents impacted by coal ash join together with concerned citizens to rally outside the annual Duke Energy shareholder’s meeting in Charlotte on May 7. Photo courtesy of NC WARN

Utility pleads guilty to separate water pollution charges

By Sarah Kellogg

Jeff Keiser and his wife, Kim, have lived in a small neighborhood in Belmont, N.C., near Duke Energy’s G.G. Allen power plant, for 15 years. Although their community is surrounded on three sides by coal ash, the toxic by-product of burning coal, the Keisers have used their tap water just like anyone else. But that changed in late April when they and their neighbors started receiving letters from the state health department advising them not to drink or cook with their water.

“It was pretty frightening for us to hear all of our neighbors getting do not drink letters from the state,” recalls Keiser. “We had been drinking the water with no worry at all, now we’re scared for our health.”

The do-not-drink orders were a result of mandatory water tests conducted by Duke Energy and required by North Carolina’s Coal Ash Management Act. As of late May, wells had been tested near eleven of Duke’s fourteen coal ash pond locations. Of the 207 wells tested by May —all located within 1,000 feet of the ponds —191 were deemed unsafe to drink. Most of the wells tested high for vanadium or hexavalent chromium, both known carcinogens. The Belmont community received 83 do-not-drink orders, the most of any location.

Duke Energy claims that the elements found in the wells are naturally occurring and not a result of groundwater contamination from coal ash ponds, although the utility agreed to supply affected residents with bottled water until the source of the contamination is determined.

Keiser and other residents feel certain that Duke is to blame for their bad water. “I do feel like it’s their ash ponds that have created this whole mess,” he says. His neighbor, Barbara Morales, who also received a do-not-drink notice, told the L.A. Times, “Duke just won’t admit their coal ash is poisoning my water, but they need to take responsibility.”

Two weeks after the first round of water tests was released, Duke Energy pleaded guilty in federal court to nine violations of the Clean Water Act at five of its North Carolina coal ash sites and agreed to pay a $102 million fine. The lawsuit was unrelated to the well water results, but rather was the result of a federal investigation that began after Duke spilled 39,000 tons of coal ash into the Dan River in February 2014.

Separate lawsuits against Duke, filed by the state in 2013 for violations of the Clean Water Act at all 14 of the utility’s North Carolina coal ash sites, are still pending.

Duke’s guilty verdict and the do-not-drink orders come on the heels of a controversial wastewater discharge permit renewal for three of Duke Energy’s N.C. plants, including G.G. Allen. The state’s Clean Water Act lawsuits against Duke charge that the utility is violating the discharge permits at all of their plants due to toxic seeps from their coal ash ponds leaking into surface water and drinking water. Although the state is suing Duke Energy for the violations, it issued new draft permits that would make all current and future seeps from the coal ash ponds legal. As of publication, the permits have not been finalized, but hundreds of citizens submitted comments in April urging the state to limit the amount of coal ash pollution Duke Energy can discharge.

In Belmont and other communities, residents continue to process the news that their well water is undrinkable. “If we wanted to move, we’d feel obligated to let the purchasers of the house know about the issue with Duke and the drinking water in our neighborhood,” Keiser reflects. “That is very scary because this is our most valuable asset.”

Permit Renewal Raises Questions for Radford Arsenal

Monday, June 15th, 2015 - posted by Cody Burchett
The Radford Army Ammunition Plant in Virginia  manufactures munitions for the U.S. Army. Photo courtesy U.S. EPA

The Radford Army Ammunition Plant in Virginia manufactures munitions for the U.S. Army. Photo courtesy U.S. EPA

Air pollution concerns spark a controversy in the New River Valley

By Andrea Brunais

Perhaps in a parallel universe, these four things don’t sit within walking distance: a toxin-emitting munitions plant, a mountain river, an elementary school playground and Kentland Farm, where Virginia Tech students tend plots of fruits and vegetables.

The New River, famous for its snaky wildness, is a favorite of kayakers and tourism-boosters who tout its unusual south-to-north flow and its ancient origins. Biodiversity flourishes near the river, whose features include breathtaking rock cliffs and rim-top ledges. Its three-state span – North Carolina, Virginia and West Virginia – hosts vastly different environmental issues along its length.

In Virginia’s Pulaski and Montgomery counties near the town of Blacksburg, a 4,600-acre U.S. Army munitions plant dating to 1941 straddles the New River. Bill Hayden of the Virginia Department of Environmental Quality confirms that the Radford Army Ammunition Plant, operated by a private contractor to manufacture munitions for the U.S. Army, is “one of the top emitters of toxic chemicals in the state.”

According to the DEQ, some nine million pounds of toxins are released from the plant annually, most being nitrate compounds stemming from the process that neutralizes acids used to make explosives. In the agency’s Toxic Release Inventory report for 2013, issued this spring, the arsenal once again topped Virginia’s list of polluters; the annual report has frequently listed the plant.

By law, operators are permitted to discharge toxic substances, mostly nitrates, into the river. According to the U.S. Environmental Protection Agency, the plant’s toxic emissions include nitroglycerin, lead, ammonia and nitric acid. Other hazardous wastes identified at the plant include remnants of TNT, chromium, cadmium and perchlorates.

The operators are also issued permits to burn some of the hazardous waste left over from the manufacturing process. Burns take place out in the open, in sight of the river and close to an elementary school. The DEQ issued a warning letter to the facility in April 2015 when an open burn produced 4 percent more lead than the permit allows.

The plant was cited as a top polluter in a 2012 report on the nation’s most contaminated waterways from the Environment America Research and Policy Center, but studies repeatedly deem the plant’s emissions — at least those that are measured — in compliance with environmental laws and health standards. Regulators from the DEQ as well as Army staff defend the strictness of the standards.

The latest all-clear regarding water quality comes from the Centers for Disease Control and Prevention. A study released in January concluded that the plant’s discharges “cannot harm people’s health” via groundwater used for local residential drinking water.

According to Rick Roth, president of the local Friends of the New River and professor of geospatial science at Radford University, the CDC’s conclusion does not surprise him. “Are they the kind of toxins that bioaccumulate?” asks Roth of the plant’s nitrogen discharges into the New River, and immediately answers, “No.”

But according to a former Virginia DEQ employee who quit his job citing lax enforcement, concerns over the plant’s history of handling hazardous materials on the premises are legitimate.

The former regulator, who spoke on condition of anonymity, says nitrates may not measurably contaminate the river even when permitted discharge limits are exceeded because the river is huge enough to easily swallow up the compounds. But he points to what he calls a fundamental flaw in the agency’s methodology: “The DEQ’s entire approach is that dilution is the solution,” he says.

Which is better, he asks: Halting the discharge of millions of pounds of contaminants into a water body, or continuing the polluting practices because of the theory that the New River is so large and flows so fast that the toxins quickly seem to leave no trace?

A Hazardous Breeze

Some environmental advocates believe the battleground should be air quality rather than water quality. The plant’s DEQ permit, which allows 8,000 pounds of propellant to be burned in the open air each day, is up for renewal at the end of June.

According to Peter deFur, an environmental scientist and instructor at Virginia Commonwealth University, air quality measurements in nearby neighborhoods have never been collected and are needed.

Dr. Jill Dyken — the co-author of the CDC report that examined groundwater near the plant — agrees, stating that the agency “recognizes the lack of air sampling results as a data gap.” She further writes in an email that the agency’s next step is to “evaluate the community’s exposures to contaminants in air.”

Blacksburg resident Devawn Oberlender, spokesperson for Environmental Patriots of the New River Valley, campaigns to end the arsenal’s open burns. During the burns, contaminated material is doused with diesel fuel. Plant employees go behind a wall as the burn begins.

“All of this takes place 150 feet from the New River – just a mile and a half upwind from Belview Elementary School,” Oberlender says.

On the plant’s website, the Army states that safety procedures “include red flashing lights and a warning speaker system to notify people on the river that a burn is going to occur.”

Also adding to the air pollution is an aging 1941 coal-fired power plant that generates most of the arsenal facility’s electricity. According to Rob Davie, the Army’s chief of operations at the plant, getting a new, cleaner plant within two years is one of the “priorities” of the Army.

Cleanup Questions

Greg Nelson, a Virginia Tech student whose doctoral dissertation focuses on public participation in the hazardous-waste cleanup at the arsenal, seeks to address the risks from burning thousands of pounds of what are called “munitions constituents.” He says, “The health effects have never been documented because there’s never been a health study.”

According to Nelson and deFur, the half-century track record as a major emitter of contaminants provides ample reason to investigate the Radford plant for Superfund status. But the EPA-supervised cleanup plan for the facility stops short of classifying the plant as a Superfund site, and Justine Barati, director of Public and Congressional Affairs Joint Munitions Command for the Army, supports the status quo, responding in an email that Superfund status does not apply.

For Nelson and deFur, Superfund classification could be a big part of a long-term solution. According to deFur, if agency regulators were to declare the arsenal a Superfund site, a full-scale cleanup could take place with federal agency involvement “in a day-to-day way,” he says. Public scrutiny would be increased as well, Nelson adds.

What’s more, deFur says, Superfund oversight would bring more attention to groundwater cleanup. “The data on what chemicals are going where are not sufficient to confirm that the existing problem is not larger and not reaching the New River,” he says.

At a recent public meeting on May 28 mandated by the cleanup plan, Oberlender and others came armed with a December 2014 report from the EPA’s National Enforcement Investigations Center that was publicly released the day before. The report, which the Environmental Patriots of the New River Valley obtained via a Freedom of Information Act request, outlines violations of four federal statutes including the Clear Air and Clean Water Acts. When asked about the findings at the meeting, Army officials said they were not yet ready to comment.

Alternative Disposal

BAE Systems, the plant’s private-sector operator since 2011, also operates Holston Army Ammunition Plant in Kingsport, Tenn., where the Tennessee Clean Water Network has filed suit against the company and the U.S. military. The lawsuit claims that the Kingsport plant is polluting the Holston River, a drinking water source, with RDX, an explosive chemical that may also be a human carcinogen.

But the Radford plant’s contamination problems predate BAE Systems by decades. Over the years, explosions and major fires have repeatedly occurred. Relatives of people working at the arsenal, who asked to remain anonymous, say the community accepted such incidents because they were thankful for jobs — even though the price paid included spills and releases of toxic chemicals into the soil, water and air.

As the June 29 deadline to begin the renewal process for the plant’s open-burn permit approaches, DEQ spokesperson Hayden says the agency is “evaluating possible alternatives.” The Army’s Davie says the arsenal “will be going to bid” on a project to design an incinerator to replace open burns, but he declines to answer questions about timeline and cost.

Different disposal methods were considered at Camp Minden in Louisiana, where a 2014 proposal to eliminate more than 15 million pounds of an explosive propellant called M6 through open burns spurred public outcry. In May 2015, the EPA approved the Louisiana Military Department’s proposal to hire a contractor to conduct a contained burn.

Oberlender has followed the events at Camp Minden and strives to see the open burns in Radford replaced with safer disposal methods.

“I think there’s more widespread challenge to [the permit renewal] coming than the Army has let on,” deFur says. “The question is, how long is anybody going to put up with the open burning and [with] Radford being one of the largest contributors of nitrogen going into the river?”

As the Army readies for the DEQ’s decision, greater public questioning has upped the ante. “They’ve never had as many people asking about the plant as there are right now,” Nelson says. “There’s more public questioning than the arsenal has ever experienced in its history.”

Keep the Clean Water Act going strong

Thursday, June 4th, 2015 - posted by sandra

Is the Obama administration ready to continue modernizing the landmark law?

After releasing the final Clean Water Rule last week, the EPA should continue modernizing the Clean Water Act by better protecting clean water from power plant and industrial waste.

After releasing the final Clean Water Rule last week, the EPA should continue modernizing the Clean Water Act by better protecting clean water from power plant and industrial waste.

Last week, the U.S. Environmental Protection Agency announced the release of its long-awaited Clean Water Rule, which clarifies the scope of waters protected under the Clean Water Act.

The finalized rule ends a decade of confusion; a 2006 U.S. Supreme Court decision brought into doubt the definition of “navigable waters,” which the EPA had historically interpreted to include areas connected to waters by tributaries or other smaller streams.

As The Los Angeles Times reports:

Before the new rule, up to 60 percent of American streams and millions of acres of wetlands were potentially overlooked by the Clean Water Act, EPA officials say. One in three Americans … use drinking water affected by these sources that lacked clear protection from pollution before the rule change, according to the agency.

Is the Obama administration ready to continue the trend of strengthening and modernizing the Clean Water Act — the crucial environmental law that came about due to levels of water pollution that seem unfathomable today?

As the EPA pursues updating the Effluent Limitation Guidelines, which provide standards on wastewater discharge from power plants, we hope that is indeed the case. Sixty percent of water pollution comes from coal-fired power plants alone, and these guidelines would also include natural gas and nuclear facilities.

The primary reason the EPA is even updating these guidelines is because clean water groups sued the agency for not having updated the rule since 1982.

These out-of-date standards do not contain federally enforceable limits on toxic heavy metals. Any limits are left for individual states to decide; as a result, 70 percent of current Clean Water Act permits for power plants do not have limits for heavy metals.

Even worse, the water pollution from these plants has become more dangerous since many coal-fired power plants have installed air pollution technology that “scrubs” emissions before they leave the smokestack. This is good news for air quality, but not for water quality. The scrubbed pollution has to go somewhere, and that somewhere is in waste impoundments where these pollutants supposedly “settle” to the bottom. Power plants are then allowed to dump water from these impoundments into our river and lakes, which sometimes serve as drinking water sources.

Heavy metals are dangerous at varying levels to wildlife and human health. The industry is also discovering that the chemicals used in the “scrubbing” process can interact with chemicals from drinking water treatment plants to create trihalomethanes, which have been linked to bladder cancer.

The EPA released draft options of the Effluent Limitation Guidelines in 2013 and received more 160,000 comments, most asking for the strong technological options that would create zero waste. The agency is planning to release the final standard this fall. But there is real concern among clean water advocates that the final rule may not pursue the most technically feasible option for stopping pollution from heavy metals and other chemicals, as required by the Clean Water Act.

We are going to need your help to crank up the pressure on the White House to make sure the EPA listens to us water-drinkers as it works to finalize the rule for this fall. Sign up here to receive updates. Follow us on Facebook and Twitter, too.

Duke Energy to close aging Asheville coal plant

Tuesday, May 19th, 2015 - posted by brian

Duke Energy plans to retire its Asheville coal plant and build a natural gas-fired facility in its place. The announcement should be celebrated as progress, but it also represents another precarious step toward a future reliant on fossil fuels.

A plan to “end an era of coal” in Asheville and enter an era of natural gas.

In a surprise announcement that some predicted and many have long advocated for, Duke Energy shared plans today to “end an era of coal” in Asheville, N.C., by retiring the coal-fired power plant that sits on the banks of nearby Lake Julian.

The aging power plant, which began operating in 1964, has been a constant target for Appalachian Voices and many of our allies in North Carolina working to address coal ash pollution and promote investments in cleaner energy.

The company plans to spend around $750 million over the next four or five years to retire the coal plant and replace it with a 650-megawatt natural gas-fired power plant, nearly doubling the current plant’s capacity. The plans also include building solar generation on the site, but it’s unclear how large — or small — the size of the renewable portion of the project will be.

While the news should be celebrated as progress, it also represents another precarious step along a dangerous road that will prolong our region’s over-reliance on fossil fuels and saddle consumers with long-lived investments in natural gas.

Duke, more than any other southeastern utility, has been at the forefront of the coal-to-gas fuel-switching trend, retiring seven of its 14 North Carolina coal plants in the past five years. The utility is also slated to be the largest customer of the proposed 550-mile Atlantic Coast Pipeline, but, in this case, plans to upgrade an existing natural gas pipeline to supply the new plant.

Even though the company has brought on large-scale solar projects in recent years, Duke’s enthusiasm for clean energy doesn’t come close to its eagerness to expand natural gas generation and infrastructure. That fact is reflected in the mixed responses of environmental groups and clean energy advocates to today’s news.

“The retirement of the Asheville Plant is a step in the right direction, but it is a half measure, undermined by continuing reliance on an economically unpredictable and polluting source of power. Duke can do better, and our community deserves better,” a coalition of groups made up of MountainTrue, Sierra Club, Southern Environmental Law Center and Waterkeeper Alliance announced in a joint statement. “We will continue to use every tool at our disposal to fight for clean energy solutions for Western North Carolina.”

According to Duke, electricity demand in the Asheville area has doubled over the past forty years and the Asheville plant is a “must run” facility, meaning it operates around the clock to maintain reliability. But data charted by SNL Energy shows the plant’s capacity factor has been trending down since 2010, likely due to new capacity at the more-economical Cliffside power plant coming online.

Closing the plant will dramatically reduce harmful emissions of sulfur dioxide and mercury, and the new natural gas plant will emit about 60 percent less carbon dioxide per-megawatt hour. But its larger generating capacity could mean overall carbon emissions stay about the same.

The cost of retrofitting the plant’s coal ash ponds to comply with the state’s Coal Ash Management Act is sure to have played a role in the decision to retire the plant. The N.C. Department of Environment and Natural Resources also cited Duke in February for contaminating groundwater at the facility, which could lead to fines.

The Asheville plant is the only facility out of the four deemed “high priority” by the coal ash law that still burns coal. It is also one of the few still-operating plants involved in the federal lawsuit over coal ash pollution that led Duke to plead guilty to nine misdemeanors under the Clean Water Act.

The case for closing the Asheville coal plant is clear. But Duke must do more to meet its promises to North Carolinians. At a time of tremendous opportunity to expand clean energy, America’s largest electric utility has the obligation and more than enough influence to lead.

WV Coal Lab Penalty Upheld

Wednesday, April 8th, 2015 - posted by Dac Collins

The West Virginia Environmental Quality Board upheld a decision by the state Department of Environmental Protection to revoke the certification of Appalachian Laboratories Inc., where employees routinely conspired to violate the federal Clean Water Act.

The Beckley-based water-testing lab had previously appealed the revocation of its state certificate to conduct water testing services for coal companies and other industrial customers, arguing the actions of one employee should not disrupt its entire business. But during the Feb. 25 sentencing hearing of lab employee John Shelton — who will spend 21 months in prison for falsifying water samples — a U.S. judge said, “essentially everyone at the company… participated in some way in this conspiracy.”

Going to Court for Clean Water

Wednesday, April 8th, 2015 - posted by Dac Collins

Federal Lawsuit Filed Against Frasure Creek

In mid-March, Appalachian Voices and our partners in Kentucky sued Frasure Creek Mining in federal court for more than 20,000 violations of the Clean Water Act, which could lead to nearly $700 million in fines.

In 2014, Frasure Creek Mining submitted more than 100 reports to the Kentucky Energy and Environment Cabinet that contained false water monitoring data. These reports are supposed to be used to make sure companies are meeting the water pollution limits in their permits, but when companies turn in false reports, that task becomes impossible.

In the first quarter of 2014, nearly half of Frasure Creek’s water monitoring reports were false — they contained data copied from previous reports. In a few cases, violations were removed from reports when they were duplicated.

A few years ago, Frasure Creek was the top producer of coal from mountaintop removal mines in Kentucky. Although Frasure Creek has stopped mining coal for the time being, its mines continue to produce toxic pollution and the company continues to rack up numerous violations from the state for failing to properly reclaim the mines.

If you think all of this sounds familiar, you would be right. We first uncovered similar false reports from Frasure Creek and two other coal companies almost five years ago. The subsequent legal actions are still ongoing. Late last year, inadequate settlements between Frasure Creek and the Cabinet were thrown out by a Kentucky judge, and that decision is now being appealed. We are also attempting to intervene in the state’s enforcement action for these 2014 violations.

Appalachian Voices is joined in these efforts by Kentuckians For The Commonwealth, Kentucky Riverkeeper, the Sierra Club and the Waterkeeper Alliance. The citizens’ groups are represented by Mary Cromer of Appalachian Citizens Law Center, attorney Lauren Waterworth, and the Pace Law School Environmental Litigation Clinic.

Going to court for clean water

Tuesday, March 17th, 2015 - posted by eric
A satellite image on Google Earth, taken October 2013, of a mine in Breathitt County, Kentucky, owned by Frasure Creek Mining.

A satellite image on Google Earth, taken October 2013, of a mine in Breathitt County, Kentucky, owned by Frasure Creek Mining.

Last week, Appalachian Voices and our partners in Kentucky sued Frasure Creek Mining in federal court for more than 20,000 violations of the Clean Water Act, amounting to nearly $700 million in potential fines. (Read the press release.)

In 2013 and 2014, Frasure Creek Mining submitted more than 100 reports to the Kentucky Energy and Environment Cabinet that contained false water monitoring data. These reports are supposed to be used to make sure companies are meeting the water pollution limits in their permits, but when companies turn in false reports, that task becomes impossible.

In the first quarter of 2014, nearly half of Frasure Creek’s water monitoring reports were false. Most contained data copied from previous reports.

But what if Frasure Creek copied a report that contained violations of their pollution limits? In a few cases where the first report contained violations, the entire report is copied except for the violations.

A few years ago, Frasure Creek was the top producer of coal from mountaintop removal mines in Kentucky. It recently emerged from bankruptcy and in 2014, the company didn’t produce any coal from its 60 Kentucky mines, a fact that doesn’t seem to have affected Frasure Creek’s parent company Essar, or its billionaire owners, Shashi and Ravi Ruia. Although Frasure Creek has stopped producing coal for the time being, its mines continue to produce toxic pollution and continue to wrack up numerous violations from the state for failing to properly reclaim the mines.

Friday’s lawsuit is the next step in what has been a long fight for clean water and proper oversight in Kentucky. We first uncovered similar false reports from Frasure Creek and two other coal companies 2010, and took legal action. Frasure Creek’s earlier violations have yet to be resolved. Late last year, inadequate settlements between Frasure Creek and the Cabinet were thrown out by a Kentucky judge, and that decision is now being appealed.

Appalachian Voices is joined in these efforts by Kentuckians For The Commonwealth, Kentucky Riverkeeper, the Sierra Club and the Waterkeeper Alliance. The citizens’ groups are represented by Mary Cromer of Appalachian Citizens Law Center, attorney Lauren Waterworth, and the Pace Law School Environmental Litigation Clinic.

Read past posts about our clean water lawsuits in Kentucky.

Groups Sue Kentucky Mining Company

Friday, March 13th, 2015 - posted by cat

Contacts:
Eric Chance, Appalachian Voices, 828-262-1500, eric@appvoices.org
Ted Withrow, Kentuckians For The Commonwealth, 606-782-0998, tfwithrow@windstream.net
Pat Banks, Kentucky Riverkeeper, 859-200-7442, kyriverkeeper@eku.edu
Pete Harrison, Waterkeeper Alliance, 828-582-0422, pharrison@waterkeeper.org
Adam Beitman, Sierra Club, 202-675-2385, adam.beitman@sierraclub.org

Pikeville, Ky. – A coalition of citizens groups today filed a federal lawsuit against Frasure Creek Mining, LLC, for submitting to the state more than 100 false water pollution monitoring reports from its Kentucky coal mines. The false reports amount to nearly 20,000 violations of the federal Clean Water Act and carry a total maximum penalty of more than $700 million.

>> The lawsuit is available here.(pdf)

The violations occurred at Frasure Creek’s mountaintop removal coal mines in Floyd, Magoffin, Pike and Knott counties in Eastern Kentucky. Frasure Creek, formerly the state’s top producer of coal from mountain top removal mining, is a subsidiary of Essar Group, a multi-billion dollar international corporation based in India. In November, the groups sent Frasure Creek a “notice of intent” to sue after at least 60 day, as required by the Clean Water Act.

“By all indications, this case looks like the biggest criminal conspiracy to violate the federal Clean Water Act in the history of that law,” said Waterkeeper Alliance attorney Pete Harrison.

The pollution discharge monitoring reports are supposed to be used by state regulators to ensure companies stay within the permitted limits for pollutants. The Kentucky Energy and Environment Cabinet, however, failed for years to take action on Frasure Creek’s mounting violations.

The mining company has a history of similar false reporting. Almost five years ago, citizens’ groups uncovered falsified pollution reports, which led to two cases against Frasure Creek that have yet to be resolved. In both cases, the cabinet reached slap-on-the-wrist settlements with the company, preempting citizen involvement. In December, a Kentucky judge threw out those settlements. The cabinet is now appealing that ruling.

In January, 59 days after the groups revealed the company’s latest violations, the cabinet took administrative action against the company. The groups have filed to intervene in that action to try to ensure the state appropriately enforces the law.

“Frasure Creek is using false reports to mask serious pollution problems,” said Eric Chance, Water Quality Specialist for Appalachian Voices. “And the cabinet is failing in its duty to enforce the law and protect the people of Eastern Kentucky from dangerous pollution, which is why citizens’ groups have had to step up and do the job through lawsuits like this one.”

“Our state officials have turned a blind eye to what is obviously serious problem,” said Ted Withrow, a member of Kentuckians For The Commonwealth and retired Big Sandy River basin coordinator for the Kentucky Division of Water. “False reporting is widespread within the coal industry, but state regulators have little incentive to identify problems like these when there are false reports that make everything look great.”

“Coal jobs may be leaving the state, but the industry’s legacy of environmental damage is here to stay,” said Pat Banks, Kentucky Riverkeeper. “With declining coal production, we need to be more diligent than ever to make sure companies can’t cut corners at the expense of local residents and the environment. We need healthy people and a healthy environment for Eastern Kentucky to be able to flourish.”

“Self-reported data is the backbone of Clean Water Act enforcement,” said Alice Howell, of the Sierra Club’s Cumberland (Kentucky) Chapter. “When companies like Frasure Creek submit false data it completely undermines all the protections we have in place to make sure our water is safe.”

The citizens groups — Appalachian Voices, Kentuckians For The Commonwealth, Kentucky Riverkeeper, Sierra Club and Waterkeeper Alliance – are represented by Mary Cromer of Appalachian Citizens Law Center, attorney Lauren Waterworth, and the Pace Law School Environmental Litigation Clinic.

Permits and Payments: Will Duke Energy ever stop polluting?

Friday, March 13th, 2015 - posted by sarah
The N.C. Department of Environment and Natural Resources announced a record-high $25 million fine for pollution at Duke Energy's Sutton plant. The agency also updated coal ash permits to at other sites to protect the company. Photo from Duke Energy Flickr.

The N.C. Department of Environment and Natural Resources announced a record-high $25 million fine for pollution at Duke Energy’s Sutton plant (above). The agency also updated coal ash permits at other sites to monitor pollution — and protect the company. Photo from Duke Energy Flickr.

This week, Duke Energy and the N.C. Department of Environment and Natural Resources added a new chapter to the coal ash saga.

On the heels of recent news that Duke Energy agreed to pay $102 million to resolve the federal charges for the company’s criminally negligent handling of coal ash at four out of 14 of its coal plants in North Carolina, DENR announced Tuesday that it is charging Duke Energy $25.1 million for coal ash pollution at the Sutton power plant near Wilmington.

$25.1 million is the largest fine DENR has ever issued, and though the fine is substantial, it’s long overdue and does nothing to remedy the pollution problems that persist at the Sutton site (not to mention Duke’s 13 other sites). For a company that made $1.9 billion in profits last year, $25 million isn’t breaking the bank, but it is making a statement. Which raises the question, is it just a statement, or is it a precursor to Duke finally cleaning up its coal ash across North Carolina?

A few days prior to DENR’s announcement of the fine, the agency released updated permit drafts, proposed to “better protect water quality near coal ash ponds until closure plans are approved.” Sounds good, right? Unfortunately, that’s the best part about the permit rewrites, they sound good.

Unpermitted leaks and seeps at Duke’s coal ash ponds that led to the criminal charges filed last month, will now be permitted as legal discharges. Though permitting the pollution will force monitoring, it does nothing to stop or even stymie the toxic discharges.

North Carolina, like the rest of the country, has very few limits on the amount of pollution power plants can discharge directly into our waterways. In fact, the federal rules regulating direct discharges from power plants have not been updated in 32 years, and those rules allow unlimited discharges of many of the toxic constituents in coal ash pollution, including mercury, arsenic, lead, and selenium. By rewriting Duke’s permits, DENR is resolving violations of the Clean Water Act, not by stopping the illegal discharges, but by issuing permits for them.

Accompanying the new permits and record-high payments are vague promises from both DENR and Duke Energy that the coal ash will be cleaned up eventually. Though the state’s coal ash law requires closure plans for all sites by the end of 2016, if a site is categorized as low priority, Duke will be allowed to simply “cap-in-place” its coal ash. “Cap-in-place” is a questionable practice that comes with the risk of continued contamination from ponds near waterways or sitting in groundwater. For the 10 communities that have yet to be categorized as low, medium, or high priority, this is a huge concern.

It appears that Duke Energy is working hard to clean up its image and settle the numerous lawsuits it faces. On Tuesday, the company announced that it would pay $146 million to settle a lawsuit related to the company’s 2012 merger with Progress Energy. Once again, the sum is substantial in comparison to similar settlement agreements, indicating that Duke Energy’s deceit was substantial in this case as well.

Both DENR and Duke Energy want North Carolinians to believe they are doing the right thing. Only time will tell if the company will uphold its vague promises and stop polluting North Carolina communities and their drinking water with coal ash.

Apologies for the Dan River spill, guilt for coal ash crimes

Thursday, February 26th, 2015 - posted by brian
Facing federal criminal charges stemming from the Dan River spill and pollution at other sites across North Carolina, Duke will pay for its coal ash crimes.

Facing federal criminal charges stemming from the Dan River spill and pollution at other sites across North Carolina, Duke will pay for its coal ash crimes.

Duke Energy likes to use a tagline that goes something like “For more than 100 years we’ve been providing customers with reliable, affordable electricity at the flip of a switch.”

It’s boilerplate, but it works. So I doubt the company will amend that punchy bit of self-praise to include “and we were recently found criminally negligent for polluting North Carolina rivers with coal ash.”

Even so, a year after the Dan River spill, Duke seems to understand that coal ash pollution has its own chapter in the company’s corporate story. Now, Duke will pay for its crimes.

The bombshell news came in two pieces around the same time last Friday; the U.S. Department of Justice announced the charges and Duke announced it struck a deal with prosecutors. A few days before the big reveal, Duke told shareholders in an earnings report that it set aside $100 million to resolve the federal investigation that began after the Dan River spill.

The company faces nine misdemeanor charges for violating the federal Clean Water Act at multiple coal ash sites across the state. On Friday, the U.S. Attorney’s Offices for the Western, Middle and Eastern Districts of North Carolina each filed charges in their respective federal courts, related to violations that occurred at coal ash ponds owned by Duke in their respective districts.

According to DOJ, Duke was criminally negligent in discharging coal ash and coal ash wastewater from storage ponds its Dan River, Asheville, Lee, and Riverbend plants into North Carolina rivers. Violations related to equipment upkeep were found at the Cape Fear Steam Station, where Duke was cited by the state for illegally pumping 61 million gallons of toxic water from a coal ash pit into the Cape Fear River last year.

The DOJ’s press release makes clear that the filing of charges is not a finding of guilt, and most prominent news outlets left any indication that Duke is guilty of its coal ash crimes out of their coverage. We decided to use the word “guilty” in our press release largely because a proposed plea agreement including millions in fines had been reached.

Read one of the three criminal "bills of information" detailing charges against Duke Energy (PDF).

Read one of the three criminal “bills of information” detailing charges against Duke Energy (PDF).

Also, in a consent to transfer the plea and sentencing proceedings to the Eastern District court, an attorney for Duke wrote: “… the Defendants wish to plead guilty to the offenses charged.”

Of course, Duke steered clear from the words “guilty” or “plea” in its own announcement. But, as the Southern Environmental Law Center’s Frank Holleman told the Charlotte Observer, “When anyone pays $100 million to resolve a grand jury investigation, that indicates something serious happened.”

There’s still a lot of specifics we don’t know about the agreement between prosecutors and Duke. Prosecutors say they won’t comment until after court proceedings where the agreement must be approved by a federal judge.

It’s important to note, though, that this is a plea bargain to resolve a criminal investigation, not a settlement to avoid a civil trial. The proposed agreement includes $68.2 million in fines and restitution and $34 million for community service and mitigation. The fines cannot be passed on to customers, meaning Duke’s shareholders will take the hit.

Importantly, the agreement would also put Duke on probation for five years, during which a court-appointed monitor would ensure compliance with provisions related to training, audits and reporting. According to Duke, the full agreement will be made public if it is accepted by the court.

“We are sorry for the Dan River spill, and remain grateful to our friends and neighbors for your support,” Duke CEO Lynn Good said in a statement. “We are committed to moving forward in a safe and responsible way.”

For a year Duke has been saying sorry to its customers and communities along the Dan River — basically demanding that it be held to a higher standard. So even though the company is no longer in crisis mode, it’s still watching its back as it tries to repair its reputation and move beyond the spill.

The problem of coal ash pollution in North Carolina is far from resolved. According to Duke’s own assessment, 200 seeps at its power plants leak nearly 3 million gallons of polluted water into streams and rivers every year. Just yesterday, Duke was cited for contaminating groundwater at its Asheville Plant.

In addition to investigating Duke Energy, federal prosecutors subpoenaed current and former employees of the Department of Environment and Natural Resources and the North Carolina Utilities Commission, which used to regulate coal ash ponds. But none of the charges against Duke allege any improper, or illegal, dealings between the company and state regulators.

Without clarification from the U.S. Attorney’s office, it’s unclear whether the grand jury has finished its work, only finding Duke in the wrong, or if an investigation into actions of DENR is ongoing.

“While prosecutors aren’t legally obliged to explain charges they don’t file, in this case the public needs more substantial disclosures,” the Fayetteville Observer wrote in an editorial. “The Justice Department needs to let us know whether a cloud of suspicion remains over DENR.”

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