NC environmental regulators may reinstate coal ash deal with Duke

That settlement between the Department of Environment and Natural Resources and Duke came in for criticism from environmental groups following a Feb. 2 coal ash spill from a now-shuttered power plant on the Dan River. The spill has coated 70 miles of riverbed with 30,000 to 40,000 tons of toxin-laced ash, according to the Duke and observations the U.S. Fish and Wildlife Service. 

"DENR is apparently considering the possibility of shielding more Duke Energy coal ash pits under its do-nothing settlement deal with Duke, which requires no real action to clean up of those coal ash lagoons," said D.J. Gerken, senior attorney at Southern Environmental Law Center.

Also Tuesday, DENR announced that it was in the process of modifying a permit for the Dan River spill site in a way that could require the power company to move coal ash from that location to a lined landfill. 

"We are taking swift and appropriate action to address a catastrophic failure at the Dan River power plant," Tom Reeder, director of the state Division of Water Resources, said in a statement.

Coal ash is the material left over after coal is burned for fuel. It contains arsenic, selenium, mercury and other heavy metals hazardous to fish and humans. Ash ponds, many of which have been around since the 1950s, are an older method of storing it. As with the power stations themselves, which relied on water to create steam to turn turbines, the ponds are typically perched near streams and reservoirs that serve as recreation areas and drinking water supplies.

Environmental groups and scientists say those ponds are leaching harmful materials into both underground and surface water supplies. After nonprofits threatened to sue Duke over those leaks, the state filed suit itself last year. However, DENR officials proposed a settlement that included a $99,000 fine for pollution at steam stations near Asheville and Charlotte. 

"Recommendations might include, but are not limited to, maintaining the Consent Order as proposed, recommending the inclusion of additional provisions, or expanding the overall scope of the Consent Order to include additional facilities," lawyers for DENR wrote.

The same letters says the department will propose a final Consent Order with Duke by March 21.  

"On Feb. 10, we asked Judge Ridgeway to postpone consideration of the consent order," DENR spokesman Jamie Kritzer said in an email to WRAL News. "All the department did Friday was to put a timeframe on when we would report to the court whether we wish to withdraw from the settlement, expand it or modify it in some other way. DENR’s coal ash task force is currently exploring these issues and have not come to any conclusions yet. Any declarations that the agency has made decisions on this matter are untrue and cannot be substantiated by fact."

There are 14 locations throughout the state where Duke owns power plants that have coal ash ponds. The Feb. 20 letter potentially opens the door to covering all 14 locations under the currently suspended settlement. 

DENR Secretary John Skvarla defended the deal in a news conference last week, saying it would bypass litigation and set the stage for the state and the company to work together on a cleanup plan.

Environmental groups objected to the original deal because they said it did little to force Duke to clean up coal ash ponds permanently. Expanding the deal would allow Duke to further delay commitments to cleanup the ash ponds, they said. 

"It's past time for DENR to come to its senses and require Duke to stop coal ash pollution. Duke may prefer to delay cleaning up the pollution caused by these dangerous coal ash lagoons, but the people of North Carolina deserve better," Gerken said.

The legal action over the coal ponds continues separately from the state's response to the Dan River spill.

"Actions we take with regard to this wastewater permit will be considered independent of DENR’s work to assess and impose appropriate penalties for the coal ash spill," Reeder said.

Both Duke and DENR officials have said they are considering various options to the spill. One would be to drain and dig up the coal ash pits, moving the material to lined landfills. Another would be to drain and then cap the pits with an impermeable liner to contain the ash where it sits. 

"Based on our investigation of this spill, one option under consideration right now is to eliminate all coal ash waste discharges coming from this facility and require that Duke Energy move the coal ash waste stored on-site to a lined landfill away from any waterways," Reeder said. 

Kritzer said DENR needs to modify its permit for the Dan River site before the state can order it to move the coal ash.

"In taking this action, DENR has started the regulatory process that could compel Duke Energy to move this ash to lined landfills," he said. "At present, Duke Energy has a National Pollutant Discharge Elimination System, or NPDES permit, that allows the company to discharge coal ash basin water from storage ponds at the Eden facility."

Frank Holleman, a lawyer for the Southern Environmental Law Center, which has intervened in the case between the state and Duke Energy, said modifying the state's permit was the slowest round regulators could take in dealing with the Dan River spill.

“Why aren’t they in before a judge seeking an injunction to order Duke to do it?” Holleman asked.

He also noted that DENR's permit action only deal with the Dan River location. 

"There are 13 other communities throughout North Carolina that are facing the same risk, and they deserve the same protection," Holleman said.