Posts Tagged ‘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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Criminal charges filed against Duke Energy

Friday, February 20th, 2015 - posted by brian
Duke Energy entered a plea agreement with federal prosecutors to resolve a federal criminal investigation into its handling of coal ash in North Carolina.

Duke Energy entered a proposed plea agreement with prosecutors to resolve federal criminal charges related to its handling of coal ash in North Carolina.

The U.S. Department of Justice has filed criminal charges against Duke Energy for violating the federal Clean Water Act at coal ash sites across North Carolina. The company announced today it has reached a proposed plea agreement with federal prosecutors to resolve the charges.

According to a Duke Energy press release, the plea agreement includes $68.2 million in fines and restitution and $34 million for community service and mitigation.

The charges include multiple misdemeanor violations of the Clean Water Act in connection with last year’s coal ash spill in the Dan River as well as unauthorized discharges at other Duke coal plants in North Carolina. The agreement is subject to review and approval by the U.S. District Court for the Eastern District of North Carolina.

Related stories

Coal Ash Management: Long-awaited, still debatedAppalachian Voice reporter Kimber Ray sums up the state of coal ash management at the federal and state levels.

The agreement does not affect state lawsuits against Duke Energy, in which Appalachian Voices and our partners have intervened. It’s unclear whether the grand jury has finished its work, only finding Duke in the wrong, or if an investigation into actions of the N.C. Department of Environment and Natural Resources is ongoing.

The federal grand jury investigation began last year after 39,000 tons of coal ash spilled from a retired Duke Energy coal plant into the Dan River.

A statement from Amy Adams, North Carolina Campaign Coordinator for Appalachian Voices, and former supervisor with the Department of Environment and Natural Resources:

It’s good to see that federal enforcers have taken this issue seriously by diligently pursuing criminal charges and levying a substantial fine against Duke, and it’s good to see Duke acknowledge its culpability. However, we have yet to see that culpability turn into real action. There are still leaking coal ash ponds at 10 of Duke’s sites, leaving 10 communities in limbo and a lot of ash that must be permanently and safely disposed.

Important questions remain, like exactly how the money will be spent and whether any individuals will be named. But most troubling is the unanswered question of whether DENR was aware of negligence and failed to act, or was unable to recognize the magnitude of the situation in the first place.

Learn more about our work to clean up coal ash pollution. Subscribe to the Front Porch Blog to receive regular updates. 

Coal Ash Management

Wednesday, February 18th, 2015 - posted by molly

Long-Awaited, Still Debated

By Kimber Ray

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UPDATE: In the month after this issue of The Appalachian Voice went to press, the electric utility Duke Energy was issued two historic fines for violations of the Clean Water Act at its North Carolina coal ash sites. Read about the federal and state charges on the Front Porch Blog.
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Salem College biology students joined the Dan River Basin Association this January to help collect sediment samples for microbial analysis. Photo by Brian Williams

Salem College biology students joined the Dan River Basin Association this January to help collect sediment samples for microbial analysis. Photo by Brian Williams

State regulators have known about toxic near Duke Energy’s coal-fired power plant in Salisbury, N.C., for years.

Since 2011, officials have disclosed more than 226 water quality test violations near the Salisbury plant that bear similarities to coal ash, the hazardous byproduct that remains after burning coal for electricity.

Of course, regulators decided to play it safe — for the power industry, that is. The N.C. Department of Environment and Natural Resources’ repeated claims that perhaps the pollution was simply a natural occurrence were a predictable line of defense when considering that historically, the regulatory directive on coal ash might as well have been “look away.”

Though that could prove a difficult feat for the second largest source of industrial waste in the United States, government officials have achieved this with astounding finesse.

Despite more than 150 federally acknowledged cases of water contamination and several notorious spills, measures such as water quality monitoring, safety inspections and protective liners for coal ash ponds remain rare on the state level and, until this past December, nonexistent on the federal level.

“There are plenty of people who say ‘I really don’t care, I just want a job,’” states Brian Williams, program manager for the Dan River Basin Association, which works to protect and promote that river. “And I understand that: people need to eat and they need a job. But they also need to drink, and you can’t live without water.”

The most recent high-profile coal ash spill occurred in North Carolina in February 2014, when more than 30,000 tons of ash emptied into the Dan River from a containment pond at Duke Energy’s retired coal-fired power plant in the city of Eden. Under the ensuing glare of public attention, last August state legislators passed what amounts to today’s toughest rules on coal ash in the nation.

North Carolina’s claim to regulatory fame is a source of major disappointment for many environmental and public health advocates across the country, who had hoped to see a stronger coal ash rule passed by the U.S. Environmental Protection Agency this December.

Although Duke Energy’s Belews Creek coal ash pond is the largest in the state, this site, located just 35 miles upstream from the Dan River spill site, is not slated for high-priority cleanup. On Jan. 31, local grassroots group Residents for Coal Ash Cleanup and Appalachian Voices gathered to protest continued inaction. Photo by Jaimie McGirt

Despite the status of Duke Energy’s Belews Creek coal ash pond as the largest in the state, this site, located just 35 miles upstream from the Dan River spill site, is not slated for high-priority cleanup. On Jan. 31, local grassroots group Residents for Coal Ash Cleanup and Appalachian Voices gathered to protest continued inaction. Photo by Jaimie McGirt

The cumulative costs of weak coal ash regulations are tremendous. In a 2014 analysis of just five of Duke Energy’s 14 power plant sites in North Carolina, Dr. Dennis Lemly, a research biologist with the U.S. Forest Service and an associate professor at Wake Forest University, estimated that environmental and economic impacts totaled almost $2 billion.

“As far as what’s happening on the ground right now, there’s been no change [either nationally or in North Carolina],” Lemly says. “These rules still allow surface impoundments of coal ash, which is really the root of all evil in terms of fish and wildlife damage that we’ve seen for many, many years.”

Familiar Disappointments

Under the new federal rule passed this December, coal ash disposal will now be held to safety standards similar to those for household trash — and that’s an improvement. Unlike municipal landfills, coal ash waste sites were not historically required to have liners and, consequently, many don’t. The limited available data indicates that nearly all unlined ponds are seriously impairing nearby surface and groundwater with toxic levels of pollutants such as arsenic, lead, mercury and selenium.

“The EPA spent years developing this rule and turning up lots of evidence on how dangerous coal ash is,” says Pete Harrison, an attorney for the nonprofit Waterkeeper Alliance. “In the end, they gave in to intense political pressure and turned in an extremely weak and minimally enforceable rule.”

Although the federal rule sets minimum standards for the disposal and monitoring of coal ash, the EPA will neither enforce these regulations nor require states to do so. If a state chooses not to adopt the rule, the only enforcement will be through citizen litigation after a problem has already occurred.

States are free to take greater initiative and craft more restrictive standards, though on that front, North Carolina stands alone. Unlike the federal rule, the North Carolina Coal Ash Management Act could put an end to the nationally popular method of coal ash disposal — storage in unlined, wet surface impoundments — and the state will oversee enforcement.

But while all new coal ash waste produced by Duke Energy must be dried and stored in lined landfills, how the state law will address the utility’s existing 33 unlined surface impoundments remains to be seen. The state rule requires all coal ash ponds to close by 2029, but so far, only four are marked as high-priority and slated for relocation to lined landfills.

Closure plans for the other 29 sites, to be announced by the end of the year, may permit ash to remain in unlined ponds with an impermeable clay cap installed on top. This cap-in-place type of closure, also permitted by the federal law, could allow toxic waste to leach into groundwater indefinitely.

Another unresolved problem is where to relocate coal ash from Duke’s ponds that are being emptied out. The utility is already grappling with this issue at its four high-priority sites. Current plans to haul millions of tons of ash to landfills in Chatham and Lee counties have proven controversial, and residents continue to rally in opposition.

No effective controls prevent coal ash from blowing into the neighboring community at this combustion waste landfill near the Cane Run power plant in Jefferson County, Ky. Photo courtesy Kentuckians For The Commonwealth

No effective controls prevent coal ash from blowing into the neighboring community at this combustion waste landfill, pictured left, near the Cane Run power plant in Jefferson County, Ky. Photo courtesy Kentuckians For The Commonwealth

Chronically Lax Oversight

Sites such as the Dan River are just the tip of the ashburg — a word used to describe the hulking masses of coal ash that decorate the scenes of spills. Although the exact number is unknown, more than 1,000 coal ash disposal sites are located in 37 states.

According to a 2011 analysis of state regulations by the nonprofit law organizations Earthjustice and Appalachian Mountain Advocates, some of the most dangerous and least-regulated ponds are in Appalachia. Low numbers of water quality violations in Kentucky may seem to indicate otherwise until considering that, as has been the case in most states, there are no groundwater monitoring requirements for coal ash disposal sites in Kentucky.

In Tennessee, more than six years have passed since a poorly constructed dam at the Kingston Fossil Plant collapsed and unleashed more than one billion gallons of coal ash across hundreds of acres and into two rivers. State officials have yet to enact even the most basic of regulations, such as annual inspections of massive containment dams like the one that failed.

Although this historic 2008 spill prompted the EPA to promise the nation’s first coal ash rule, it was a 2012 lawsuit brought by a coalition of environmental groups — including Appalachian Voices, the publisher of this paper — that brought the EPA to fulfill this promise in 2014.

Even if the rules had arrived sooner, however, it’s unlikely the new regulations could have prevented last year’s disaster on the Dan River. Final wording of the federal rule — which, at press time, had yet to be published — suggests that it would not allow the EPA to require the removal of coal ash from inactive ponds at shuttered facilities like the one that spilled.

No rule can mend the botched cleanup of the Dan River, which did not begin in earnest until six months after the spill. “The coal ash is now too buried by sediment to ever fully remove,” remarks Williams from the Dan River Basin Association.

Only about six percent of the coal ash was removed, but, with the ash now covered, Williams says water tests no longer show any levels of coal ash contaminants such as arsenic and mercury. This means the river is safe for recreational use such as paddling, but local residents remain concerned about the inevitable arrival of annual winter floods, which will stir up the coal ash and sweep it across adjacent farmlands.

Another concern is the gradual buildup of toxic contaminants in fish and wildlife. During the initial impact, many bottom-dwelling macroinvertebrates such as mussels, clams and crayfish were choked by the coal ash, and Williams has little doubt that conditions will worsen over time.

“There’s still a thousand-plus tons of coal ash in the river, so for the EPA to say [the river’s] back to pre-spill conditions is totally irresponsible,” Williams states.

Citizen Enforcement

One widely praised aspect of the federal rule is a requirement for all coal ash sites to install water quality monitoring wells within the next two years and disclose this data online in order to aid citizen enforcement.

“In some Southeast states right now, it can be next to impossible to get all the information about a given facility and understand what’s going on,” explains Harrison of Waterkeeper Alliance. “If you want records that should be public under federal law, you can’t go to a website like in North Carolina, you need to go to the agency office and stand there all day with a scanner and huge boxes of hard copy discs.”

Guilford College students in front of the retired Dan River Steam Station during a river outing with the Dan River Basin Association in 2013. The association has long promoted citizen water quality testing as a vital component of healthy waterways. Photo by Brian Williams

Guilford College students, above, in front of the retired Dan River Steam Station during a river outing with the Dan River Basin Association in 2013. The association has long promoted citizen water quality testing as a vital component of healthy waterways. Photo by Brian Williams

Since North Carolina’s system was put in place in 2010, reports have revealed that sites at all 14 of Duke Energy’s coal-fired power plants have been polluting local water sources. This pre-existing water quality data for North Carolina sites may require the state to close coal ash impoundments earlier than current state-mandated deadlines because, once groundwater violations are discovered, federal law requires the facility to close within five years.

But, as Harrison warns, “It’s not quite so cut and dry. The federal law also provides second chances for the company to demonstrate that it has the problem under control in some other way.”

The validity of water quality data provided by the companies is also an important consideration. Aside from more notorious cases in which companies were caught altering water pollution reports, Judy Petersen, executive director for the Kentucky Waterways Alliance, says that accuracy is an issue. The federal rule requires a minimum of four wells, but that data’s usefulness depends on the location and depth of the wells, as well as whether the state agency has the resources to evaluate a company’s monitoring plans.

Continued Challenges

While representatives for utilities across the country supported the EPA’s decision not to classify coal ash as hazardous waste, they claim two aspects of the federal rule could prove particularly troublesome for estimating costs associated with coal ash. According to Harrison, some members of Congress have since proposed changes to address these concerns, such as prohibiting the EPA from ever returning to the rule to relabel coal ash as hazardous waste.

Combined with this effort is a push to limit legal avenues for citizen enforcement by requiring all states to adopt and enforce the federal rule, which would shift enforcement responsibilities to state agencies. In a recent testimony before the U.S. House Subcommittee on Energy and the Economy, Frank Holleman, senior attorney with the Southern Environmental Law Center, expressed his concerns about this proposal.

“We have seen, over and over again, that state agencies will not effectively enforce laws [related to coal ash disposal],” stated Holleman. “Without the citizen right to enforce the law, local communities cannot count on state agencies to effectively protect them.”

However the rules are enforced, Petersen of the Kentucky Waterways Alliance notes that her state faces additional challenges unaddressed by the law. Approximately 50 percent of Kentucky is comprised of karst, a rock formation easily dissolved by water that forms into extensive networks of caves and sinkholes.

“[Kentucky] coal ash sites never fill up, and part of the reason is because they’re leaking into the ground,” says Petersen. “If a karst cave development forms a sinkhole underneath a coal ash impoundment, it doesn’t matter if there’s a liner — it’ll take the liner and everything else with it.”

The Final Judgement

Some critics, such as The Center for American Progress, have suggested that implementation of coal ash rules could be problematic in the 39 states where judicial elections occur. Opportunities to “buy influence in the state courts” have continued to expand in recent years. A report published by the center last November found that North Carolina’s court was more likely to rule in favor of special interest groups who had given the largest campaign contributions to judge nominees.

In the long-run, Williams believes no rule will be a strong force for change until people reconsider how they value and monitor water quality. “We demand cheap power and energy,” he says. “Well, water is gold. It’s time we demand clean water, and more water protection.”

Learn more about coal ash, and listen to a discussion of North Carolina’s efforts to clean up coal ash with Amy Adams of Appalachian Voices.

Danger still looms over the Dan River

Monday, February 9th, 2015 - posted by amy

{ Editor’s Note } This post by Amy Adams also appeared as an op-ed in the Winston-Salem Journal on Sunday, Feb. 1, marking the first anniversary of the Dan River coal ash spill.

amy-rally-speach

It’s been exactly one year since the infamous broken pipe at Duke Energy’s Dan River steam station spewed 39,000 tons of toxic coal ash into the scenic Dan River, just a few miles upstream of the drinking water intake of some 160,000 people. Since then, much attention has been given to the river and to the problems of leaking, unlined coal ash pits across North Carolina.

What hasn’t received attention is a threat much more menacing to the Dan River. Sitting only 35 miles upstream from the shuttered Dan River plant is Duke’s Belews Creek steam station in Walnut Cove, and one of the largest coal ash impoundments in North Carolina and the entire Southeast. Compare the 342-acre active goliath at Belews to the 39-acre impoundment at the Dan River plant, and it’s easy to understand the implications.

At Belews, a 14-story high earthen dam holds back 4.1 billion gallons of toxic coal ash. That’s more than 20 times the holding capacity of the Dan River site. The dam at Belews is rated by the U.S. Environmental Protection Agency as “high hazard,” meaning loss of life and property are probable if it failed. The EPA also ranks the dam as being in only fair condition. If it were to break, the Dan River would again be flooded with toxic coal ash, only this time on a scale on par with the Kingston, Tenn., disaster in 2008.

Aside from the threat of a catastrophic spill, the Belews Creek plant has a history of pollution that harms waterways and wildlife, including documented groundwater contamination. In addition, the plant dumps its wastewater directly into the Dan River under state-issued permits. It is currently part of ongoing litigation for violations of the Clean Water Act, its wastewater permit and North Carolina law.

Downstream from the massive Belews Creek plant is the town of Madison, which gets its drinking water from the Dan River, as does Eden and the Virginia localities of Danville, South Boston and Halifax County. Eden, whose water intake was spared any impacts from last year’s spill, withdraws close to 12 million gallons a day from the Dan River to serve residential customers and three major industries: Miller Brewing, Hanesbrands and Karastan Rug Mills.

Living next to this industrial mega-site are residents of Walnut Cove and Pine Hall, communities whose concerns include not just the wet ash impoundment and dangerous dam, but several other on-site landfills containing dried coal ash. While the N.C. Department of Environment and Natural Resources has spent the last weeks rearranging the who’s who of its upper management, these communities, like others across the state, are waiting to find out if the agency will ever clean up the sites.

According to the state’s new coal ash law, passed earlier this year under mounting pressure from citizens, DENR must set the “priority level” of each site by the end of 2015. So far, four sites have been identified as high priority — but not Belews Creek. If it’s ultimately deemed to be a “low priority” site, the ash could be left in the existing unlined pit in the ground and simply covered with plastic. This is not an acceptable solution for the residents around the plant who depend exclusively on wells for their drinking water.

Covering the ash does nothing to stop the toxic metals from entering the groundwater beneath the unlined pit. It’s equivalent to trying to stay dry under an umbrella while sitting in a puddle.

The communities living under the shadow of Belews deserve to be more than a low priority. In fact, no community in North Carolina should be considered a low priority. On the anniversary of the Dan River spill, we should make the removal of coal ash from all unlined coal ash sites and therefore, the assurance of clean, safe water to our communities, our top priority.

Today, I prayed we #kickcoalash

Monday, February 2nd, 2015 - posted by guestbloggers

{ Editor’s Note }This post originally appeared on Caroline Rutledge Armijo’s blog. We are happy to share it her with her permission.

Local residents and activists gather at Belews Lake, home to Duke Energy's Belews Creek Steam Station, to demand an end to coal ash pollution in North Carolina.

Local residents and activists gather at Belews Lake, home to Duke Energy’s Belews Creek Steam Station, to demand an end to coal ash pollution in North Carolina. See more photos from the rally on Flickr.

On Sunday, Residents for Coal Ash Clean Up met at the Belews Lake boat dock overlooking the smokestacks at Duke Energy’s Belews Steam Station in Stokes County, N.C. Today marks the one year anniversary of the coal ash spill into the Dan River in Eden. And while it was the third largest coal ash spill in our country’s history, it is only a drop in the bucket of what would happen if there was a spill at Belews Creek into the same Dan River.

Duke Energy is currently in mediation over which coal ash locations they will clean up. Belews Creek is the site of the largest coal ash pond in the state of North Carolina and it is currently on the low priority list. We want to be a high priority.

Sarah from Appalachian Voices asked me to speak at today’s event. Of course. I am glad to do anything. Yet, I procrastinated on writing my speech until this morning. That’s really bad news considering it was a morning event and we live an hour away with two kids in tow. But I am glad I did, because during the night I realized that I needed to pray. The reality is the media will only cover what they want. After my speech in Raleigh, they summed it up to basically “Caroline Armijo is upset that her friends and family are sick.” But I saw today as an opportunity to have a large crowd gathered by the lake where we could pray. If I had gotten out of bed at 4 am, I am certain that God told me what to say word for word. But I didn’t. So I did the best that I could this morning at 8 am.

Here’s my speech and prayer, including the part I forgot:

Good morning! My name is Caroline Rutledge Armijo. I am a native of Stokes County and I currently reside in Greensboro. Thank you to everyone for coming out to Belews Creek today. We are here because we want Belews Creek to be included on the High Priority List for Duke’s clean up.

A year after the spill in Eden, we want to warn North Carolina and the country that we are standing at the site of the largest coal ash pond in Duke’s system – a horrifying 342-acres in some areas over twelve stories deep. This is the largest coal-ash risk to North Carolina’s water, land and air.

In 2009 Belews Creek was classified High Risk for failure. That means Duke has known for over five years that the earthen structures are highly likely to fail and people will die. But Duke just wants to plant some grass on top.

Without the threat of catastrophic failure, the unlined coal ash pond is still a problem. Water from the pond is released into the Dan River EVERY SINGLE DAY. This is Madison’s drinking water, which Duke actively “corrects” by adding chemicals to the river.

If you watched the At What Cost video, you will recognize several of our faces. But one is missing. Our leader Annie Brown died in September after suffering from a massive heart attack. She was the very person who asked “At what cost?” Others among us have faced serious health problems, including cancer, strokes and respiratory disorders. Annie had a list of all the people in this community who were suffering from poor health. And for all of these people, I feel led to end this with a prayer.

Dear Great and Mighty God,

Here we stand on what feels like sacred space. So many people have lost their lives too soon or faced serious health consequences because of the pollution from this site.

We are all incredibly grateful for the opportunities provided by the power generated here. But now we ask that you heal this broken place. We are faced with the complicated task of just how to do that.

We pray for the strength and courage to demand that Belews Creek become a high priority site.

We pray for the spirits who have passed before us that they may have peace.

And we pray for those who live daily with the illnesses they face that they will be blessed with the very best for their needs.

We pray for guidance, miracles and wholeness.

Amen.

A silver lining in EPA’s Coal Ash Rule

Thursday, January 8th, 2015 - posted by amy

epa coal ash ruleIt took six years, two costly spills, and a lawsuit, but last month, the Environmental Protection Agency finally issued the first-ever federal standards for the disposal of coal ash. It didn’t wow us, there were no ticker tape parades, and the status quo of corporate sway over rulemaking left us with a rule that lacks brawn and relies on industry “self-implementing,” without action from any federal or state agency.

But the Disposal of Coal Combustion Residuals from Electric Utilities Rule does have a little brain, and it gave us something solid to work with going forward with, which is better than the nothing we had before. The journey of a 1,000 miles starts with a single step, someone once said. The new rule is just that, a first step. It didn’t resolve the issues, but it did move us one step forward, technically speaking, this is progress.

Here’s what the new federal coal ash rule does:

  • Defines coal ash as non-hazardous, as was expected, rather than hazardous waste . Coal ash will now be treated at least as stringently as household and commercial waste. Before this rule, your household garbage of coffee grinds, paper, and banana peels were better regulated;
  • Sets location restrictions for new, existing, and expanding coal ash impoundments and landfills, such as outside of wetlands, above the uppermost aquifer, and unstable areas such as seismic zones. Coal ash disposal units that don’t meet these restrictions must demonstrate they can still meet water quality standards through engineering, or be closed;
  • Requires new or expanding impoundments to be lined, and new or expanding landfills to have liners and leachate collection systems;
  • Requires a monitoring and control plan for fugitive dust for each site;
  • Establishes criteria for ensuring structural integrity of disposal units, and requires routine structural assessments. If a unit cannot meet the minimum safety standards, it must close;
  • Defines filling in surface mines (clay, coal, sand, etc.) with coal ash as solid waste disposal, not as a “beneficial use” of coal ash. This distinction means any mine-fill site must meet the new landfill standards, including having a liner and leachate collection system;
  • Requires groundwater monitoring systems to be installed within 30 months at all coal ash disposal locations. This will begin the process of obtaining data to assess where contamination has occurred;
  • Requires closure of unlined units where monitoring shows significant exceedance of groundwater standards. Since many clean water advocates, academics, and citizens have already obtained a wealth of data from independent testing showing contamination at many sites, it seems only a matter of time before we can prove how many currently unlined sites should be either closed or lined;
  • Requires that coal ash unit owners–mostly electric utilities like Duke Energy and Dominion Power — make all monitoring data and reports publicly available and maintained on a public website. This is perhaps the “silvery-est” lining, giving citizens the information they need to make sure sites are implementing requirements (monitor your local site from the comfort of your living room!); and
  • Provides an avenue for citizens to bring a federal lawsuit against companies that don’t meet the minimal federal standards.

Now, let’s take a look at what the federal coal ash rule most notably does not do:

  • Require states to adopt or implement these standards;
  • Require federal enforcement of the rule;
  • Guarantee regulatory oversight by requiring a state or federal permit program;
  • Call for an end to the use of surface impoundments for coal ash disposal;
  • Require existing impoundments to be retrofitted with liners (unless groundwater contamination is proven); and
  • Define closure such that de-watering and “cap-in-place” –methods that fail to fully protect public health and the environment — are prohibited.

In North Carolina, the Coal Ash Management Act, passed last year, meets and in some way exceeds the new federal rule, including limiting the cap-in-place option only to sites deemed low-priority, instead of being an option at all facilities. It also prohibits any new surface impoundments. As long as the incoming N.C. General Assembly does not propose changes to weaken the current law, North Carolinians will have a few extra protections not available to residents of other states — with the exception of South Carolina, where all electric utilities there are currently in the process of removing coal ash from their unlined pits and moving it to safe lined, storage.

For non-Carolinian states, there is a much harder row to plow in getting meaningful clean-up of coal ash waste sites. But the good news is the new groundwater monitoring and public disclosure requirements should result in data proving contamination at a plethora of sites–provided, of course, that companies are honest and report accurately, and assuming they “self implement” the requirements in the first place. Surface or groundwater contamination has already been documented in North Carolina, Georgia, Tennessee, Wisconsin, and Delaware, to name a few states. We know, therefore, that contamination is very likely happening at more sites, we just have to obtain the proof.

If facilities fail to “self-implement” the rule, states do have the ability to bring a federal lawsuit against them. It would seem that even the EPA finds this action unlikely, however, humorously mentioning such state action as a parenthetical side note in its discussion of rule implementation. However, the EPA repeatedly notes that citizens provide a “crucial role in the implementation and enforcement” of this kind of environmental law, and that part of the agency’s requirement to make the data and reports available on a public website was to assist citizens. The EPA will also be offering outreach and education to citizens and groups so they understand their role in compliance.

We must rise to the EPA’s challenge to help implement and enforce the rule. The EPA basically said, “Here’s the rule, you folks enforce it.”

Thanks, EPA, we most certainly will!

EPA finalizes long-awaited coal ash regulations

Friday, December 19th, 2014 - posted by brian
The failed coal ash pond at Duke Energy's Dan River plant.

The failed coal ash pond at Duke Energy’s Dan River plant.

The day we’ve been waiting for has finally come. Yes it’s Friday, but today was also the U.S. Environmental Protection Agency’s court-imposed deadline to release federal regulations for coal ash storage and disposal.

As expected, the rule it took the EPA five years to finalize is modest at best, falling short of what it takes to truly address the prevalent problems associated with coal ash such as contamination of waterways and drinking water supplies.

Rather than classifying coal ash as the hazardous waste it clearly is, the EPA rule places it under Subtitle D of the Resource Conservation and Recovery Act, the nation’s primary law for regulating solid waste. Other types of waste regulated under Subtitle D include household garbage — you know, banana peels, candy wrappers and the like.

“For the thousands of citizens whose groundwater is no longer safe for consumption due to leaching ponds or whose air is contaminated by fugitive dust, failing to regulate coal ash as hazardous is a slap in the face,” says Amy Adams, Appalachian Voices’ North Carolina campaign coordinator. “While we’re pleased that we finally have federal regulations, they are far from perfect and demand we continue fighting for cleanup of these toxic sites.”

U.S. coal plants produce around 140 million tons of coal ash each year. Much of that is stored near waterways in unlined pits held in place by earthen dams. Even years after coal plants have closed, ponds that have stored toxic coal ash for decades can continue to pollute water and put communities at risk.

In 2012, Appalachian Voices and several partner groups, represented by Earthjustice, sued the EPA in federal court to force the agency to issue a rule. Late last year our coalition reached a settlement holding the EPA to today’s deadline.

According to the EPA, the rule establishes safeguards to protect communities from catastrophic spills, like the Kingston, Tenn., spill in 2008. It was the disaster in Kingston that spurred the agency to act.

But more spills, like the one at Duke Energy’s retired Dan River plant in Eden, N.C., have happened in the time since, representing hundreds of millions of dollars in environmental and economic costs.

To address the threat of another catastrophic failure, the EPA rule calls for the closure of inactive sites that fail to meet engineering and structural standards, more frequent inspections and monitoring, and restrictions on where coal ash impoundments are located.

The rule also requires water quality monitoring and public disclosure of the results, which should help groups like Appalachian Voices and our community partners better track pollution and take companies to court that fail to stop it. More frequent reports and accurate information coming directly from utilities could be a big boost for efforts to protect clean water, as long as coal plant operators commit to transparency.

But while the regulations set a minimum federal criteria, states are not required to adopt them, develop a permitting program, or submit a program to the EPA for approval. That’s all more of a suggestion, really. So while the EPA says it expects states to be “active partners” in regulating coal ash, well, states unfriendly to the EPA may feel differently. And should states refuse to clean up coal ash pollution or fail to meet the new standards, the EPA will not step in to enforce the rule. That job will still fall to citizens who identify the insidious pollution and file lawsuits to correct it.

According to Earthjustice, unsafe disposal of coal ash into the nation’s more than 1,400 coal ash dumps has contaminated more than 200 rivers, lakes, streams and sources of underground drinking water in 37 states. There are 331 high- and significant-hazard coal ash ponds in the country. Many of the highest hazard sites are concentrated in the eastern U.S.

Learn more about our work to clean up coal ash.

Exposed: Linking Human Health and the Environment

Friday, December 19th, 2014 - posted by allison
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The dam holding more than one billion gallons of coal ash waste at Tennessee Valley Authority’s Kingston Fossil coal-fired power plant collapsed on Dec. 22, 2008. Photo courtesy of Appalachian Voices

As an assortment of pollutants leach into our lives, the harmful effects continue to surface in public health. Yet many questions about environmental contaminants remain difficult to study, such as long-term health effects of low-level exposure, and how these different chemicals interact in the environment.

At every stage in the life-cycle of fossil fuels — mining or drilling, transportation, processing and use — toxic waste contaminates land, air and water. And at the same time that pesticides have allowed food production to expand, these same poisonous chemicals may affect every life form on Earth, from bacteria to humans.

By Kimber Ray

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FRACKING

The last decade has seen a rapid expansion of the drilling method known as hydraulic fracturing, or fracking. Sand and chemicals — including known carcinogens — are mixed with water and injected deep underground to extract natural gas from shale rock formations. Yet many chemicals remain unknown because companies may claim them as trade secrets… [Full Story]
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PESTICIDES

Whether in food, water or air, current research suggests that no corner of the global environment is spared from pesticide contamination — not even the bacteria and fungi needed to regenerate soil. Pesticides include popular products such as insecticides, herbicides, fungicides and rodenticides. Many properties and impacts of these chemicals remain unstudied…[Full Story]
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MOUNTAINTOP REMOVAL COAL MINING

Nearly 650 mountaintop removal coal mining sites scar the landscape of central Appalachia. Neighboring communities experience greater levels of air and water pollution and suffer from higher rates of illness than similar communities located further away, says Dr. Michael Hendryx, a professor of applied health science at Indiana University who has contributed to more than 30 studies on the subject…[Full Story]
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CLIMATE CHANGE

Much of Appalachia is predicted to experience increased temperatures and precipitation over the coming decades, with temperatures rising by four to nine degrees Fahrenheit and fewer — but more intense — storms interspersed with short droughts…[Full Story]
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COAL COMBUSTION

Coal is currently the largest source of global energy. When coal is burned, its carbon, hydrogen, oxygen, sulfur, nitrogen and trace metals combine to form greenhouse gases such as carbon dioxide, methane and nitrogen oxides. Other emissions include sulfur dioxide gas, which can contribute to acid rain and respiratory diseases, particulate matter, which can cause lung and heart disease and mercury gas, a neurotoxin…[Full Story]

Coal ash cleanup still contested in North Carolina

Friday, December 5th, 2014 - posted by sarah
 Controversies still surround the environmentally destructive and costly Dan River coal ash spill. Now, as Duke Energy begins cleaning up the most high priority sites, new controversies are emerging. Photo from Duke Energy Flickr.

Controversies still surround the environmentally destructive and costly Dan River coal ash spill. Now, as Duke Energy begins cleaning up the most high priority sites, new controversies are emerging. Photo from Duke Energy Flickr.

In two weeks, the U.S. Environmental Protection Agency will finally release the first-ever rule regulating the storage and disposal of coal ash, a toxic byproduct of burning coal. For years, communities and environmental groups across the country have pushed the EPA to finalize the regulations, and now, due to a court ordered mandate, the rules are expected to be released on Dec. 19.

In the years following the 2008 TVA coal ash spill in Kingston, Tenn., the EPA repeatedly delayed finalizing a coal ash rule, allowing the dangerous waste to sit in unlined landfills and contaminate groundwater at sites across the country. As a result, there have been more coal ash disasters, including the February 2014 spill into the Dan River at Duke Energy’s plant in Eden, N.C. A new study conducted by Wake Forest University research biologist Dennis Lemly puts the cost of the Dan River spill at $300 million.

Spurred by the devastating Dan River spill, enormous public outcry, and a federal criminal investigation into the ties between Duke Energy and the N.C. Department of Environment and Natural Resources, state lawmakers set about writing their own coal ash regulations prior to the EPA rule’s release. The result was not what North Carolinians hoped for.

The Coal Ash Management Act, which became law in September without Gov. Pat McCrory’s signature, only requires the full cleanup of four out of the 14 coal ash storage sites in the state. The fates of the remaining 10, including Belews Creek (home to the the largest coal ash deposits in the state) have been left in the hands of a Coal Ash Commission, which may allow sites to be capped in place, a method of coal ash storage that does not eliminate the possibility of groundwater contamination.

McCrory did not sign the bill because he felt that the Coal Ash Commission was unconstitutional since a majority of its members were appointed by legislators and not the governor. On Nov. 13, McCrory and former governors James Hunt and James Martin sued the General Assembly, stating that the commission has been tasked with carrying out executive branch functions, as well as functions normally overseen by state agencies such as DENR. Speaker of the House Thom Tillis and Senate President Pro Tempore Phil Berger, who are listed as defendants in the case, issued a statement opposing McCrory’s lawsuit as costly and time-consuming.

Despite the weaknesses of the Coal Ash Management Act, the law has already forced Duke Energy to begin cleaning up the coal ash at four high-priority sites, and to submit preliminary cleanup plans and groundwater assessment plans for the remaining 10. But now new controversies are emerging over where the company plans to relocate its waste.

Last month, Duke announced plans to move 2.9 million tons of ash from its Riverbend and Sutton plants to former clay mines in Chatham County and Lee County. Citizens in both counties are upset by the proposal, stating that they feel blindsided and citing the lack of an environmental or health impact study as problematic. In Chatham County, some residents already live near coal ash ponds located at Duke’s Cape Fear plant, which are not currently designated for cleanup.

Duke Energy contends that the clay mines are ideal for coal ash storage because of their close proximity to railways and the added environmental protection of impervious clay. The company says it will put in liners and install groundwater monitoring systems at the sites.

Under the Coal Ash Management Act, millions of tons of coal ash precariously stored along North Carolina’s waterways will have to be moved somewhere. But the unfortunate reality of the law is that many previously unburdened communities and others already burdened by toxic waste dumps may be forced to house some of the ash. Ideally, most of the coal ash will remain on Duke Energy-owned property, but what cannot safely stay on Duke’s land will have to go somewhere. Every North Carolinian has a ton of coal ash to their name, but not every North Carolinian will have to deal with their ton.

In addition to considering new landfill sites, Duke Energy is also looking into the potential of beneficial reuse of coal ash.

If the EPA’s coal ash rule is weak, it will not protect communities from potentially dangerous coal ash landfills or coal ash reuse. Though there are no ideal solutions for the toxic waste, moving forward with the understanding that the substance is indeed hazardous would lead to more safeguards for human health.

If you haven’t already, take a moment to think about why you care about coal ash pollution and explore this topic with others. As North Carolina and the rest of the country move toward coal ash cleanup, it’s more important than ever for us to stand united to demand the safest storage possible.

DENR deserves an environmental leader to replace John Skvarla

Tuesday, December 2nd, 2014 - posted by brian
John Skvarla, the embattled secretary of DENR, is leaving the agency to lead the state Commerce Department.

John Skvarla, the embattled secretary of DENR, is leaving the agency to lead the state Commerce Department.

After a tumultuous two years as secretary of the Department of Environment and Natural Resources, John Skvarla is stepping over to lead the state’s Commerce Department. Skvarla will replace Secretary of Commerce Sharon Decker, who is leaving her post to join a digital media company.

Environmental groups, concerned citizens and prominent media outlets have been critical of Skvarla throughout his tenure, and unsurprisingly so — he has expressed doubt over whether oil is a non-renewable resource claiming, “There is a lot of different scientific opinion on that,” and he questions the overwhelming scientific consensus on climate change.

After assuming his position, Skvarla rewrote DENR’s mission statement to be in the service of industries in North Carolina. Under his watch, information related to climate change was removed from the agency’s website, and the department was reorganized and reduced to nearly inept levels.

READ MORE: DENR found critics and praise under Skvarla

By any measure, Skvarla is committed to being business-friendly. Responding to an op-ed by Appalachian Voices’ Amy Adams in the News & Observer last December, he called DENR a “customer-friendly juggernaut.” But many saw Skvarla as being too cozy with companies like Duke Energy. A federal grand jury is still investigating ties between DENR and the company responsible for the Dan River coal ash spill.

While this announcement should engender optimism in the North Carolina environmental community, that hopefulness is tempered by trepidation over who will take over the position, and concern that he could be replaced by an even more extreme and environmentally detrimental successor.

There is no word on who will replace Skvarla yet, but Gov. McCrory says he is interviewing candidates and plans to appoint a new secretary later this month. Here’s to hoping he or she is the environmental leader DENR deserves and North Carolina desperately needs.

A statement from Appalachian Voices North Carolina Campaign Coordinator Amy Adams:

John Skvarla ushered in an era of regressive environmental policies and procedures that placed industry over the needs of the environment and people. It is our sincere hope that his departure from DENR will allow the return of accountability and reason to the agency.

Gov. McCrory must choose a leader who will balance real environmental protection and industry growth without the wholesale abandonment of either. The goal of the new DENR secretary should be to restore the mission and integrity of the department by prioritizing environmental protection.

We look forward to working with someone who will reconsider Skvarla’s industry-first approach, which repeatedly put North Carolina’s natural resources as risk as exemplified by the handling of Duke Energy’s coal ash contamination.