Posts Tagged ‘Water Pollution’

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 1 billion 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. 

Déjà vu in Kentucky clean water cases

Monday, February 23rd, 2015 - posted by eric

frasure_creek

Appalachian Voices and our partners have filed a motion to intervene in a case between the Kentucky Energy and Environment Cabinet and Frasure Creek Mining to ensure clean water laws are being enforced in Kentucky.

Late last year we filed a 60-day Notice of Intent to Sue against Frasure Creek after we uncovered thousands of false water monitoring reports the company turned into the state.

The Kentucky cabinet was unaware of these false submissions and responded by filing an administrative complaint against Frasure Creek covering all of the false data we found, a common tactic for state agencies to prevent citizen involvement in this type of case. Now, we are filing a motion to become parties to the cabinet’s enforcement action.

To anyone following our lawsuits against Frasure Creek, these recent developments will sound familiar. This isn’t the first time we’ve caught the company turning in false water monitoring reports. Frasure Creek was one of three Kentucky coal companies we filed legal actions against in 2010 and 2011 for submitting falsified pollution reports that were concealing water quality violations.

In all of those cases the cabinet stepped in with slap-on-the-wrist settlements, compelling us to intervene in cases where we had brought the violations to light. The only difference in this case is that Frasure Creek and the cabinet have yet to reach a settlement, so we haven’t seen how lax the enforcement will be this time around.

Both of the cabinet’s previous settlements with Frasure Creek were thrown out by Franklin Circuit Court Judge Phillip Shepherd last December. In a scathing opinion, Shepherd stated that when “one company so systematically subverts the requirements of law, it not only jeopardizes environmental protection on the affected permits, it creates a regulatory climate in which the Cabinet sends the message that cheating pays.”

Judge Shepherd’s rulings are being appealed by the cabinet (think about that, the state agency, not Frasure Creek, is asking for an appeal). But we are hoping that this time around the cabinet will take us seriously, and won’t reach a weak settlement or resort to legal run-arounds to prevent citizen involvement. After all aren’t our state agencies supposed to be accountable to the people, not to the corporations they are supposed to regulate?

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

Read past posts about our clean water lawsuits in Kentucky. 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

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 groundwater contamination 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.

Former Freedom Executives Indicted for Elk River Chemical Spill

Tuesday, February 17th, 2015 - posted by Dac Collins

By Kimber Ray

Federal prosecutors in December charged the now-bankrupt Freedom Industries and six former employees for criminal violations of the Clean Water Act in relatation to the January 2014 chemical spill that contaminated the water of more than 300,000 West Virginia residents.

The FBI released supporting documents showing that at least a decade before the spill, Freedom was warned of problems at the Elk River site such as critical deficiencies with the tank and containment wall that allowed chemicals to seep into the river. The agency also reports that company expenditures were almost exclusively devoted to projects that would increase revenue, rather than compliance with environmental regulations.

Former Freedom Industries President Gary Southern faces additional fraud charges related to the company’s bankruptcy filing the month of the spill. According to these charges, Southern, a company executive since 2009, falsely stated under oath to have assumed leadership with the company only days before the spill in order to avoid blame and protect his assets from lawsuits.

In response to the spill, Gov. Earl Ray Tomblin signed a bill to create the nation’s first requirement for inspection of aboveground storage tanks, according to National Geographic. As of mid-January, inspection certifications required for approximately 20,000 of the state’s more than 47,000 aboveground tanks were not submitted by the Jan. 1 deadline and, of those submitted, nearly 1,100 did not meet new safety requirements.

Industry lobby groups have tried to weaken the new chemical safety bill, in one instance proposing changes that would exclude thousand of tanks near drinking water sources from new inspection and safety standards.

Such changes could provide amnesty to Lexycon, a company created by former Freedom executives three months after the spill. The new company has already been cited for charges such as improper storage of MCHM — the chemical associated with the notorious spill — and releasing chemicals into waterways without a permit. No fines have been issued.

New Contaminants Found in Fracking Waste

Tuesday, February 17th, 2015 - posted by molly

By Eliza Laubach

Two new pollutants were discovered in wastewater from oil and gas drilling, a Duke University study has shown. Researchers tested wastewater discharged or leaked into Pennsylvania and West Virginia waterways and found ammonium and iodide in abnormally high levels in hydraulically fractured and conventionally drilled oil and gas operations, both of which are exempt from the Clean Water Act.

The discovered pollutants become toxic in the environment: ammonium mixes with stream water and becomes ammonia, killing wildlife, and iodide interacts with chlorine in drinking water treatment plants, creating toxic byproducts.

“This discovery raises new concerns about the environmental and human health impacts of oil and gas wastewater in areas where it is discharged or leaked directly into the environment,” Dr. Avner Vengosh, professor of geochemistry and water quality at Duke University and lead author of the study, said in a press release. “This practice is clearly damaging the environment and increases the health risks of people living in these areas, and thus should be stopped.”

The findings add to the growing list of concerns from residents affected by fracking. In West Virginia, 100 landowners living in the vicinity of oil and gas wells across seven counties are suing drilling companies for the disruption of their daily lives and disregard for health and the environment posed by fracking wells.

Regulators Restore 1983 Stream Protection Rule

Monday, February 16th, 2015 - posted by molly

To comply with a federal court ruling, the U.S. Office of Surface Mining Reclamation and Enforcement restored an earlier version of a rule meant to protect water quality and stream channels from coal mining waste.

Last February, a court threw out amendments added to the rule in 2008 after determining that the agency failed to consult with the U.S. Fish and Wildlife Service, as required by the Endangered Species Act, when writing the regulation. Because the rule is intended to avert the worst impacts of mountaintop removal, the change will have the greatest effect on coal companies operating in Appalachia.

Alpha Agrees to Water Pollution Settlement

Monday, February 16th, 2015 - posted by molly

Alpha Natural Resources agreed to a settlement in a 2012 lawsuit, brought by the Sierra Club and other environmental groups, regarding high levels of conductivity found in streams at two of its mountaintop removal mining complexes in West Virginia.

The settlement includes no monetary penalties but would require Alpha to reduce pollution so that the streams either meet stricter requirements than set by state regulators or comply with a measure of conductivity designed by the U.S. Environmental Protection Agency.

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.

To protect or prosecute polluters?

Tuesday, January 20th, 2015 - posted by eric
Water flowing from one of the discharge points in eastern Kentucky where Frasure Creek Mining was turning in false water monitoring reports.

Water flowing from one of the discharge points in eastern Kentucky where Frasure Creek Mining was turning in false water monitoring reports.

Last week the Kentucky Energy and Environment Cabinet filed an administrative complaint against Frasure Creek Mining for hundreds of violations of the Clean Water Act at its mines in eastern Kentucky.

The filing comes just days before the end of the 60-day waiting period following an intent to sue letter sent by Appalachian Voices and our partners to Frasure Creek and the cabinet last November. Our notice letter described our discovery that the coal company had falsified pollution records over the course of 2013 and 2014, racking up almost 28,000 violations that state regulators failed to notice.

The cabinet’s filing includes all of the violations identified by Appalachian Voices and our partners. Under the Clean Water Act, the state’s action essentially preempts our ability to pursue a federal lawsuit.

Four years ago, when we first revealed that Frasure Creek had been falsifying records, the cabinet preempted our lawsuit by reaching a settlement with the company without our knowledge or participation. Later we were allowed to intervene in the settlement between the cabinet and Frasure Creek, a right which was upheld by the Kentucky Supreme Court.

Because the cabinet only filed a complaint and not a settlement in the latest case, we do not know how vigorous its enforcement will be. But if past enforcement is any guide, then one could expect it will not be very strong. The cabinet’s earlier enforcement actions against Frasure Creek were so paltry that they were thrown out in a recent court ruling, and were clearly not strong enough to ensure that Frasure Creek was in compliance since the company returned to submitting false water monitoring reports.

We will have to wait and see if the cabinet is going to take its responsibility to protect the people and water of Kentucky from dangerous pollution seriously. In the meantime, Appalachian Voices and our partners will continue to do whatever we can to ensure that Frasure Creek and other polluters are held accountable for their actions.

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