Posts Tagged ‘North Carolina’

State Legislative Updates

Monday, April 13th, 2015 - posted by Dac Collins

While lawmakers in Washington, D.C., might get most of the spotlight, the legislators in state capitols across the region are busy making — and blocking — laws that affect Appalachia’s land, air, water and people. Here’s the latest updates from state legislatures around the region.

Kentucky

Session convened Jan. 6, adjourned March 24

Perhaps the most publicized and contentious environmental law to pass during the Bluegrass State’s 30-day legislative session was an update to existing oil and gas drilling rules that addresses some of the challenges posed by fracking.

A new energy law creates an Environmental Regulation Task Force to review how electricity reliability in the state is affected by federal environmental regulations. The task force, which environmental groups say is skewed toward industry, will produce a report by December 2015.

Gov. Beshear also signed a bill that helps local governments finance water and energy efficiency projects. A committee hearing on the Clean Energy Opportunity Act, which would require Kentucky utilities to meet a certain portion of electricity demand through energy efficiency and renewables, was cancelled due to a March snowstorm, but a hearing during the legislative interim is expected.

It will be more difficult for timber companies designated as “bad actors” to operate in the state without paying civil penalties and remediating logging sites under another new law. And new rules regarding how local governments can handle stray horses and cattle provide guidelines for identifying owners and for gelding, or sterilizing, male animals if an owner is not found. — By Molly Moore

North Carolina

Session convened Jan. 14, adjourns early July

Since the legislative session began in January, the rules regulating oil and gas drilling in North Carolina went into effect and the state’s long-standing moratorium on fracking was lifted. A bipartisan bill introduced to “disapprove” the rules was left to expire in March.

The first law passed this session clarifies technical issues with the Coal Ash Management Act passed last September and removes a previous legal requirement that the state develop rules to limit air pollution from fracking operations. A three-judge panel ruled in favor of Governor McCrory, who claims that the Coal Ash Management Commission is unconstitutional because there are more legislative appointments than executive. The ruling means that progress cleaning up coal ash throughout the state will stall. It also affects the commission that wrote the fracking rules, which could impact the validity of the drilling regulations.

The bipartisan Energy Freedom Bill, which would open up the state to third-party sales for solar projects, was introduced in March. The bill is supported by environmental groups, large businesses and the military, but strongly opposed by Duke Energy, which currently has a monopoly on the state’s power production.

Though polls show that North Carolinians overwhelmingly support renewable energy options, Gov. McCrory continues to push for opening the coast to offshore oil drilling, which is a possibility now that President Obama is allowing states to pursue offshore drilling in the Atlantic. — By Sarah Kellogg

Tennessee

Session convened Jan. 13, adjourns late April

At the end of March, a bill to transfer oversight of surface mining in Tennessee from federal to state regulators had passed through a state Senate committee and state House subcommittee. The Primacy and Reclamation Act of Tennessee would end the federal Office of Surface Mining’s 31-year term as the regulatory agency charged with ensuring that coal mining operations in the state abide by surface mining and mined-land reclamation laws. That responsibility would pass to the Tennessee Department of Environment and Conservation. In 1984, the federal agency assumed oversight of surface mining in Tennessee due to the state’s poor enforcement of environmental laws.

The Tennessee Mining Association says a return to state regulation will lead to faster approval of mining permits. Opponents of the bill argue that fees levied on coal companies to pay for the costs of administering the regulatory program would be insufficient, and leave the state bearing an added cost.

A bill to provide a general permit for noncommercial gold mining appears idle for the year; opponents were concerned the bill could damage water quality and trout populations in the Cherokee National Forest. And a bill to help finance renewable energy and energy efficiency was moving through legislative committees at press time. — By Molly Moore

Virginia

Session convened Jan. 14, adjourned Feb. 27

In the 2015 legislative session, Virginia electric utilities lobbied for what they described as a partial rate freeze, though consumer advocates said that average electric bills could still increase and the legislation would make it more difficult for regulators to catch utility over-earnings or require refunds. But amendments on the same bill declared solar energy development and energy efficiency programs as in the public interest, and the legislation passed.

Another bill would have joined Virginia into a regional network of states limiting greenhouse gas emissions. Through pollution allowance auctions, this initiative would raise funds for efforts such as coastal adaptation to sea level rise and renewable energy workforce training. The bill did not receive a vote, but this concept will likely be reintroduced next year.

Two new laws that passed will increase the size of nonresidential solar installations that can sell power back to the grid and encourage renewable energy and energy efficiency for multi-family and commercial buildings.

Meanwhile, Gov. McAuliffe reiterated his strong support for the Atlantic Coast Pipeline, one of three proposed pipelines that would, if built, carry fracked gas across ecologically sensitive areas. A bipartisan bill would have prevented interstate companies from entering and surveying private property without the written consent of the owner, but that legislation failed to pass, as did an attempt to make public service corporations using eminent domain subject to the Freedom of Information Act. — By Hannah Wiegard

West Virginia

Session convened Jan. 14, adjourned March 14

Governor Earl Ray Tomblin received criticism from mine-safety and environmental groups for signing the Coal Jobs Safety Act, a law that United Mine Workers of America President Cecil Roberts said “marks the first time in West Virginia history that our state has officially reduced safety standards for coal miners.” The legislation also prevents citizens from suing coal companies for violating Clean Water Act standards if those standards were not specified in the state mine permit, along with several other industry-supported changes to environmental rules.

The state also lowered the number of aboveground chemical storage tanks that need to comply with safety regulations by roughly 75 percent — the storage tank rules passed in the wake of the 2014 Elk River chemical spill. The legislature did agree to strengthen water quality standards for a 72-mile stretch of the Kanawha River so that it can be used as a backup drinking water source for the now-notorious Elk River intake.

A bill that would have allowed “forced pooling” for horizontal oil and gas wells narrowly failed. Forced pooling, which is currently allowed for vertical wells in the state, requires all mineral owners to lease their land for drilling if a certain percentage of other mineral owners in an drilling tract agree.

Two bills intended to expand the scope of agricultural cooperatives and make it easier for growers to sell at farmer’s markets also passed. — By Molly Moore

Mountain protectors try again in N.C.

Friday, April 10th, 2015 - posted by sarah
Photo by Dot Griffith

Photo by Dot Griffith

North Carolina Rep. Pricey Harrison introduced a bill today to phase out North Carolina’s use of mountaintop removal coal. Though the bill is currently untitled, its language mirrors a bill that was introduced in 2007 and 2009 called the “Appalachian Mountains Preservation Act.”

In 2009, Appalachian Voices helped Rep. Harrison launch the bill in Raleigh. The legislation received bipartisan support, and 75 legislators signed onto a letter calling for an end to North Carolina’s use of mountaintop removal coal.

The bill (HB619) acknowledges the extensive cultural and natural value of the Appalachian mountains, and that “coal mining, whether conducted on the earth’s surface or underground, poses significant risks to human health, local communities, the environment, real property, personal property, and wildlife resources.”

North Carolina is still the number one user of mountaintop removal mined coal in the country, with nearly half of its coal coming from mountaintop removal mining operations.

The bill, which requires North Carolina utilities to stop purchasing coal from mountaintop removal sites, is a proactive approach to ending the incredibly destructive mining practice. It would also place a moratorium on building new coal-fired power plants in the state, “to provide economic relief to utility ratepayers during this period of economic recovery,” unless the plant is carbon neutral.

priceyIf you like this idea, please take a minute to write a quick letter-to-the-editor for your local paper and say so. We’ll need a loud chorus of voices supporting the bill.

You can also take a moment to help North Carolina make the switch from coal to clean energy — tell your legislators to support the Energy Freedom Act which would allow independent companies to generate solar electricity and sell it directly to consumers.

Updated 04-17-2015

Two historic homes get some TLC energy

Wednesday, April 8th, 2015 - posted by eliza

Sean Dunlap and his wife Lynnea McElreath live in a wood-slat farmhouse in Boone, N.C. built in 1938 by Lynnea’s great-grandfather. They bought the house and moved in eight years ago and have been slowly refurbishing the house ever since. Sean describes living in their drafty house in the wintertime as “frustrating and expensive.”

In January, the DIY couple won $800 worth of energy upgrades in Appalachian Voices’ “High Country Home Energy Contest.” John Kidda, a Boone-area home energy contractor, donated an extensive energy audit so they will have a detailed report to use for future projects. He was astounded to find that Sean and Lynnea’s house leaks air 10 times more than an average home.

“Your house is so drafty,” John said to Lynnea during the energy audit, “that it is overpowering the exhaust fans. I’ve never seen that before.”

Starting a family has halted the couple’s progress on most projects due to a diminished budget and time. “Having an infant in a house that gets really, really cold in the wintertime is an additional stress,” says Sean. They have used extra blankets and space heaters to stay comfortable, but, in part due to education they they received from Appalachian Voices, are aware that energy efficiency is the solution.

When she’s not taking care of her children, Lynnea enjoys researching how to modernize their home, which led her to discover Appalachian Voices’ contest last fall. Sean knew their house was drafty, but was at a loss to stop it. “I don’t think we really understood the causes,” he says.

After working with our Energy Savings for Appalachia team, Sean and Lynnea are finding out what they can do to alleviate the exacerbated “chimney effect” of a leaky house.

They had recently installed a wood-burning furnace in their basement, which decreases their heating costs substantially. Before, their utility bills averaged around $330 a month. The insulation and air-sealing they were awarded will ensure that the heated air stays in their house and the cold air stays out. This results in the Dunlaps using a lot less energy to keep their home warm and comfortable in the winter. The energy audit they received as part of the contest gives them a roadmap for future improvements.

Another couple benefits from energy efficiency

Vance and Thelma Woodie also live in an old home. Their historic home near downtown West Jefferson, N.C. was once heated by a coal-stoker furnace. Coal still litters the basement floor. Vance, a Korean War veteran, bought the home with the help of the G.I. bill. It had a major roof leak and they spent all they had to get it fixed. “Back then we didn’t have nothing; we still don’t have nothing,” says Vance.

They have replaced that furnace with a modern one, but the 80-year-old duct system needs updating. There is even still asbestos tape on the duct that heats their kitchen. They had improved the house little by little each year, but when Vance retired, they could no longer afford upgrades on a fixed income.

Even though they close off part of their second floor during the winter, they still spent an average of 15 percent of their income on utility bills before the awarded retrofit. Chuck Perry, program director for North Carolina Energy Efficiency Alliance, completed a walk-through energy assessment of their house as part of their prize. He identified the duct system as the place where the highest energy impact will be seen. The air loses heat as it travels through the ducts, and even warms the basement, because the duct system is not insulated or sealed. This means that the heater has to work even harder to heat the house to the temperature the Woodies want, resulting in a substantial amount of wasted energy.

He also explained to the Woodies a major air quality problem. One of the air intake vents is in the hand-dug basement, which means their heating system is taking up air, and dust along with it, from the basement to heat and distribute throughout the house. “Oh I notice it,” says Thelma. “When it first comes through I usually put my hand over my nose.”

As runners-up in our “High Country Home Energy Contest,” the Woodies have had their duct system sealed and insulated.

“I know it’ll help a whole lot,” says Vance of the energy upgrades he won. Living in the High Country his whole life, he knows that there will be another cold snap before trout season starts, the first weekend of April. The Energy Savings team will be keeping track of his energy use through a partnership with ResiSpeak, a program that takes weather into account when comparing monthly and annual energy usage.

The Energy Savings team is working with a local electric membership cooperative, Blue Ridge Electric Membership Corp., to explore the development of a utility-implemented program that provides a loan for home energy retrofits. Blue RIdge Electric wants to be sure that any new programs do not cost its members. On-bill financing would increase access to energy efficiency to a service territory with a 23 percent poverty rate.

The contest culled members of Blue Ridge Electric that spend a disproportionate amount of money on their energy bills compared to the whole service territory. The average applicant pays more than double on their energy bills than the average Blue Ridge Electric member, and three times the national energy bill average.

Vance says he would take advantage of an on-bill financing program. “People like me can’t come up with the money when they need it,” Vance says, “It would help a lot of people.”

Check out our High Country Campaign where you can sign on to our petition to Blue Ridge Electric or send a letter of support for energy efficiency and ask Blue Ridge Electric to do more for its members.

NC Forest Plan Delayed Amid Public Confusion

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

By Kimber Ray

After the U.S. Forest Service encountered heated public outcry in response to the release of a draft management plan for the Pisgah-Nantahala National Forests this past October, the agency revised its goal of creating a final plan from 2016 to early 2017.

In accordance with a 2012 federal policy, Forest Service officials have sought considerable public input on the 15-year plan to guide future management in these North Carolina forests. This effort backlashed when the agency’s preliminary estimate on where logging could occur was misconstrued by several conservation groups as an indication of how much logging would occur.

Similar skepticism has afflicted the designation of potential wilderness areas, where six county commissions have passed anti-wilderness resolutions — some aim to protect logging areas, while others relate to certain forms of outdoor recreation such as mountain biking and four-wheelers. Yet the Forest Service has not proposed new wilderness areas in any of these counties, a designation of which would require an official act of Congress.

The Forest Service has reached out to three conservation and recreation groups to help foster improved dialogue. Public meetings to discuss the plan are tentatively scheduled for late April and May.

Learn more at 1.usa.gov/11qVQ9I

A first for North Carolina, now open for fracking

Monday, March 23rd, 2015 - posted by sarah
Fracking rig

In the face of widespread public opposition and demand for stronger rules, fracking permits can officially be applied for in North Carolina. Photo by Bob Warhover

March 17 marked the first day in history that North Carolina has been fully open to the oil and gas industry for the dangerous, environmentally destructive practice of hydraulic fracturing for natural gas.

Despite widespread public opposition, Governor McCrory and state legislators rushed to open the state to drilling, ignoring hundreds of North Carolinians who spoke at public hearings across the state and thousands more that sent written comments requesting stronger rules.

Despite legislators’ promises that the rules would be the strongest in the country, the final package leaves much to be desired. The rules lack any provisions to control air pollution and they do not clarify legal confusion about forced pooling, the controversial process by which landowners are pooled into a drilling unit without their consent.

Adding insult to injury, on March 18, the North Carolina legislature passed its first bill since the session began in January, which declares that it is optional for the state Environmental Management Commission to create rules regulating air emissions from fracking operations. Previously, the Energy Modernization Act, which paved the way for fracking in the state, required that the EMC develop regulations to protect communities from air pollution.

North Carolina has very small shale deposits and it is unclear where they are located and how much they will actually produce. What is known is that the shale deposits in North Carolina are closer to groundwater sources than the shale deposits in other states that have already experienced groundwater contamination from failed fracking well cases. Additionally, there are no facilities in North Carolina that can treat the toxic wastewater produced by drilling and there are currently no pipelines to transport the fracked gas.

Combine North Carolina’s weak rules, unclear picture of gas reserves, and a lack of infrastructure to transport what little gas the state can produce, with dropping gas prices and drilling companies operating in the red, and you can be sure that the only drillers North Carolina is likely to attract are wildcatters.

When multi-billion dollar oil and gas companies can’t even drill safely, it seems unlikely that small-time prospectors will take every precaution to protect groundwater and neighboring communities from harm.

Though the moratorium on fracking has been lifted, communities and environmental organizations across the state are prepared to continue fighting. We’ll be watching the Department of Energy Mineral and Land Resources closely for any applications to create a drilling unit or for a drilling permit. If a permit is applied for, we’ll be ready to fight it.

Learn more about the risks of fracking and stay up to date by signing up for “Frack Updates” from Frack Free N.C.

In praise of the High Country Energy Contest’s community and business partners

Wednesday, March 11th, 2015 - posted by jmcgirt

Community Partners

Lisa Ward of Watauga County Project on Aging
Graham Doege of WeCAN (Crisis Assistance Network)

Business Partners

John Kidda of reNew Home, inc.
Kent Hively of High Country Energy Solutions, Inc.
Kent Walker of Blue Ridge Energy Works
Sam Zimmerman and Sarah Grady of Sunny Day Homes, Inc.
Will Haddaway of HomEfficient

The Energy Savings for Appalachia team would like to thank our community and business partners for making the High Country Home Energy Makeover Contest possible.

Without their dedication and service, we would not have been able to offer three households the extensive energy efficiency home improvements that we have in the past month.

Business partnerships have played a pivotal role throughout the contest process. As energy efficiency contractors, these individuals and their businesses were a natural fit for the home retrofits we hoped to offer contest winners. Their services range from spray foam insulation to energy audits to HVAC system repair. Of course, such services can come with a mighty price tag.

While energy efficiency is a worthwhile investment, such services are not affordable for so many homeowners and requiring financing to become a reality. Such financing from Blue Ridge Electric Membership Corp. — the electric cooperative that serves North Carolina’s High Country — is not available. So we launched our Energy Savings for the High Country campaign as a step toward making energy efficiency more accessible to residents of the High Country.

Each of the business partners donated $250 toward the contest and provided their services to three households at no charge. Nearly $5,000 of materials were purchased as a result of their donations and the donations of other contest sponsors. With the combination of donated time and materials, we facilitated walk-through home energy assessments of 11 runner-up households as well as energy audits and retrofits for our three contest winners.

John Kidda of reNew Home, inc., and the other businesses were active in the walk-through assessments, determining which households should win the contest and receive retrofits. Thanks to Kent Hively and Sam Zimmerman, grand prize winner Zach Dixon of Boone received $3,200 worth of full house insulation and air sealing. Vance Woodie of West Jefferson, a runner-up, received $800 worth of duct replacement and duct sealing work by Will Hadaway. Sean Dunlap of Sugar Grove, a second runner up, had $800 worth of spray foam insulation and moisture barrier work in his attic crawl space, provided by Kent Hively.

Will Hadaway, owner of HomEfficient, seals Vance Woodie's basement ducts with mastic.

Will Hadaway, owner of HomEfficient, seals Vance Woodie’s basement ducts with mastic.

“If is wasn’t for John Kidda and Kent Hively’s work, living in an old 1930s farmhouse wouldn’t be worth it,” says Dunlap. Hively also provided CFL bulbs for all three homeowners.

The community partnerships with Project on Aging and WeCAN (Crisis Assistance Network) enabled our team to effectively reach a wider audience than we originally anticipated. How? Both of the women involved, Lisa Ward and Graham Doege, were impassioned to help their regular clientele with home energy improvements by distributing our contest application and providing support throughout the application process.

Ward is a caseworker with the Watauga County Project on Aging who works with home-bound senior citizens. She eagerly took a petition which asks Blue Ridge Electric to offer its members affordable energy efficiency programs and our contest application to her in-home visits across the county. We received two applications referred by Ward.

Graham Doege coordinates the WeCAN program, which financially assists residents when they struggle to pay utility or housing costs. Very aware the conditions of poverty in Watauga County — the third poorest county in the state — Doege attempts to educate her clientele on ways to save energy, and therefore money spent on energy, to prevent future payment crises.

Throughout our contest, Graham provided her clients with the contest application as well as Appalachian Voices’ Energy Savings Checklist as an energy savings resource. Doege commented, “I see six clients a day, five days a week. $400 of fuel assistance is all I can offer a household in a year. ” Before offering any crisis assistance funds, Doege tells them, “If you are using your clothes drier, stop and use a clothesline. Then we’ll talk.” Thanks to her efforts, we received two applications referred by Doege.

Besides receiving referrals, partnerships with Project on Aging and WeCAN have informed us of the many constraints residents in rural Watauga County face. We are working to ensure that residents, whether renters or owners, have equal access to the many ways to save money on their utility bills through home energy efficiency. As a result, High Country residents will have the savings necessary for more pressing household needs and an atmosphere in which they can thrive.

Other organizations that posted our contest application materials include: High Country DSS offices and Boards of Education; Watauga Co. Veterans Affairs; Alleghany Cares; Boone Area Missions; Caldwell Co Ag Extension; and Happy Valley Medical Center.

Sign our petition asking Blue Ridge Electric to support energy efficiency. Learn more about the Energy Savings for Appalachia program.

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.”

Subscribe to the Front Porch Blog to receive regular updates. 

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.

Turning Carolina Red

Wednesday, February 18th, 2015 - posted by molly

Reports from the Front of an Energy Culture War

E-Book by the Staff of Environment & Energy Publishing

Turning_Carolina_Red-1

Five years ago, North Carolina veered from being a fairly moderate, progressive state and took a hard right when the Republican party gained control. The eBook “Turning Carolina Red: Reports from the Front of an Energy Culture War” examines the forces that shaped the sudden change in the state’s political ideology. With this innovative eBook, Environment & Energy Publishing provides a comprehensive look at how this political shift is affecting environmental and energy policies in the state and across the country.

Opening with the catastrophic Dan River coal ash spill in 2014, the book gives a detailed account of how the disaster influenced environmental policies in the new paradigm and explores the broader context of electricity generation in the state.

The book also studies the players shaping policy, from members of the General Assembly and state regulators, to environmental groups and conservative think tanks. Throughout, the authors weave a cautionary tale of the power of money in politics. You won’t find a better account of the changes and impacts on North Carolina than this. — Review by Amy Adams, Appalachian Voices N.C. Campaign Coordinator