Stuck in the mire: NC's coal ash response slowed by political battles

Like the substance itself, the coal ash story is made of up of many constituents: legal, environmental, economic, public health and political.

Over the next decade, as deadlines near and specific site plans for dealing with the ash are up for review, policy makers face the challenge of weighing each as they make a critical set of choices on how coal ash sites are decommissioned and where, if anywhere, the ash will go.

What happened at the Dan River in February 2014 illustrated in all-too-vivid fashion what can happen when things go wrong. Less clear at this point is how to make sure things go right.

There are 33 impoundments holding more than 100 million of tons of coal ash in 14 locations around North Carolina. Several are still active, but most are no longer used. Some are covered with vegetation. A few sit in marshes below the water line. None is lined and, like the current and former power plants that generated the ash, nearly every one is within a few hundred yards of a major river or tributary.

They are the legacy of an era of plentiful fuel and cheap power. The technical term for what is in the impoundments is "coal combustion residuals." They're what's left over after coal is crushed and burned. The estimated 107 million tons at the 14 sites is not entirely uniform, burned and processed in different eras under different combustion methods. The toxicity of coal combustion residuals has been the subject of an ongoing debate with enormous pressure on both sides of the equation. Although studies have shown it to be the source of a range of regulated metals, the ash itself has never been deemed a hazardous waste, but federal and state regulators are beginning to tighten requirements.

The most natural starting point for the contemporary discussion of coal ash in North Carolina is Sunday, Feb. 2, 2014, the day a stormwater pipe collapsed and started to drain 39,000 tons of coal ash into the Dan River near Eden, N.C.

But the 2014 spill was by no means the beginning of the story. Questions about what to do with the millions of tons of coal ash building up in basins across North Carolina started long before. In the decade prior to Dan River, there were a handful of incidents around the state, including smaller spills, leaks and seeps, and dams overtopped in floods. A major spill in Tennessee in 2008 had also raised public awareness.

In early 2014, what to do about Duke’s coal ash basins was shaping up to be a long, protracted legal battle.

Just two years before, environmental groups began a push through the courts to force the state’s hand on enforcement on coal ash basins leaking into groundwater and surface waters. They threatened to sue under the Clean Water Act. State regulators responded by suing Duke Energy themselves and then negotiating a settlement with the company that included no mandate for cleanup and $99,111 in fines for years of non-compliance.

The proposal drew criticism from environmentalists and the Environmental Protection Agency who expected a far stronger penalty. It also fanned concerns that the administration of Gov. Pat McCrory, a long-time Duke Energy employee, was too cozy with the state’s largest utility.

The offer was still on the table when the stormwater pipe at the former Eden plant gave way.

No one knows for certain just when on Feb. 2 the first rush of coal ash surged into the Dan River, but that’s the point on the timeline when a mostly-behind-the-scenes fight over coal ash regulation turned into a full blown public crisis.

By mid-day the damage was just starting in an environmental catastrophe that would lead to a federal investigation, several lawsuits, the largest fines for environmental violations in state history and a difficult reversal in strategy for the country’s largest investor-owned power company.

The spill was a slow-moving event. The flow of coal ash and water into the Dan River went on for six days, and the ash basins weren’t fully sealed off until nearly 20 days later. The plume of ash moved at just a few miles per hour downstream leaving deposits of varying depth in calmer parts of the river as heavier particles drifted to the riverbed.

As the ash progressed downriver toward the public water intakes at Danville, Va., and Henderson it was tracked and documented by growing numbers of local, state and federal agencies, company engineers, news crews and environmental organizations.

DENR begins water sampling, contacts the Environmental Protection Agency and notifies more communities downstream. The plume is expected to reach Kerr Lake. DENR and Duke each issue statements announcing the spill to the public.

Although the flow slowed significantly, early estimates by the company are that between 50,000 and 80,000 tons could have gone into the river.

Fallout from the Dan River spill was swift and widespread. Images of a thick, gray sludge flowing through the river heading toward the Kerr Lake reservoir drove the story. State actions came under scrutiny, starting with concerns over a communication breakdown that led to almost a day’s delay in notifying DENR and a two-day delay in announcing the spill to the public. As the cost of the spill began to mount, the state’s proposed settlement with Duke over coal ash suits drew more fire and put McCrory’s decades-long ties to Duke Energy in sharp focus. A week after news of the spill broke, DENR asked that the settlement be put on hold.

Immediately after the spill, federal agencies were called in. EPA on-scene coordinators were part of a unified command structure overseeing the response along with personnel from U.S. Fish and Wildlife Service, DENR, the Virginia Department of Environmental Quality and Duke Energy.

While the spill scene was still active, another federal agency got involved.

The McCrory administration fired back against charges it was too cozy with Duke with then-DENR secretary John Skvarla, now the Secretary of Commerce, at the point. At a press conference on the same morning that a new wave of federal subpoenas were reported, Skvarla said he welcomed the federal investigation. He blamed past Democratic administrations for ignoring coal ash and defended the Duke settlement as the first enforcement action of its kind. He dismissed criticisms of a backroom deal with Duke and noted that DENR had reinspected dams at coal ash sites and tightened enforcement.

He also said he would work with the environmental groups that had brought suits, but said their demand for excavation and removal of ash at all 14 sites was too broad and not possible.

McCrory's ties with Duke would come into focus again later in the year when the governor's office disclosed that he had sold previously undisclosed holdings in Duke stock after the spill. McCrory blamed the failure to disclose the stock on a misunderstanding of reporting timelines. The amount of the sale, which took place between February and May of 2014, was in excess of $10,000.

Within a month of the spill, the focus shifted from the short-term crisis to long-term outcomes.

Leaders in the General Assembly, due back in session in May, began hearings to start work on a comprehensive coal ash bill, while the administration started to put together an action plan of its own.

Meanwhile, legal actions were still moving slowly through state courts. One month after the last leaking pipe at Dan River was sealed, Superior Court Judge Paul Ridgeway ruled in a groundwater contamination lawsuit brought a year earlier by SELC that under state law Duke would have to remove the source of the contamination. He ordered that “immediate action” be taken by the company on a plan to remove the ash.

Given the legal fights, there was a chance even prior to the Dan River spill that the legislature would get involved in the coal ash controversy.

In the 2013 session, a bill creating a coal ash study commission was introduced in the House. Although it went nowhere, it was significant because it was introduced by Republican Majority Leader Mike Hager, R-Rutherford, who had worked as an engineer at several Duke facilities, and Rep. Nathan Ramsey, a first-term Republican from Buncombe County where concerns were growing over the coal ash ponds at Duke’s Asheville plant.

The legislature tightened dam safety rules in 2009 after the Tennessee spill, eliminating an exemption that covered the coal ash impoundments.

Following the February 2014 spill there was little doubt that coal ash legislation would be a major part of that year’s session.

On Feb. 17, 2014, the legislature’s Environmental Review Commission, a joint House and Senate group that oversees environmental agencies and develops legislation held its first hearings on what went wrong at Dan River. Also under review was a Burlington wastewater spill on the Haw River that happened the same weekend. In both cases there was confusion about reporting requirements and whether local water systems were alerted in time as to what was coming downstream. One immediate outcome of the meeting was a proposed revision to the law tightening public notice requirements after spills.

By the time the 2014 short session was convened in April, the ERC had an outline for future legislation, and early in the session Senate leaders advanced a bill based on the governor’s plan. It called for removal of the ash at Asheville, Sutton in New Hanover County, Riverbend near Charlotte and the Dan River facility.

The State Senate modified the plan extensively, considered 15 separate floor amendments and passed it 45-0 on June 26, a few days before the fiscal year ran out. The House, ready with its modifications took it up the next week and passed its version 94-16 considering 28 floor amendments, many of which were aimed at adding a particular set of impoundments to the list of priority sites. Those amendments failed, but they underlined the extent of local concerns over each site.

The bill went into conference in mid-July and didn’t emerge until late August, caught up in a budget stalemate between the two chambers.

The final version of the bill contained much of what the governor asked for, but also a key element that he’d threatened to veto behind the scenes: the creation of a Coal Ash Management Commission, a nine-member board with six members appointed by the legislature and three by the governor. McCrory said the commission represented legislative interference in executive branch functions.

At one point during the session, Bob Stephens, the governor’s chief council, paid a visit to lawmakers to bluntly warn them that the governor was ready to go to court if they kept the commission in the bill.

Senate Bill 729, The Coal Ash Management Act of 2014, passed on Aug. 20, and it became law without the governor's signature a month later. Six weeks later, the governor, joined by former Governors Jim Hunt and Jim Martin filed suit against Senate President Pro Tem Phil Berger and House Speaker Thom Tillis charging that the Coal Ash Management Commission mandated in the law violated the state constitution’s separation of powers requirements.

The commission met officially twice. The first meeting was in Chapel Hill on the day after the governors’ suit was filed. Six of its members, the legislative appointees, also were named in the suit.

After an awkward swearing-in ceremony in which all members present attempted to put their hands on a single Bible held by Justice Paul Newby, they received a briefing on dam safety plans and details about how water is removed from a coal ash basin. The commission held another meeting in January 2015 to discuss possible commercial uses for coal ash, a mandate in the Coal Ash Management Act and an area the state continues to pursue.

That meeting proved to be its last. In mid-March 2015, a three-judge panel invalidated all six legislative appointments. The commission, funded independently by a levy on Duke revenues, continued to develop materials and consider future staff appointments but could not achieve a quorum and could not meet until the matter was ultimately decided by the state Supreme Court. The governor’s three appointees and a small staff moved forward through 2015 and produced an overview of the reuse of coal ash.

The state Supreme Court supported McCrory in a decision handed down in January, 2016, and the governor formerly disbanded the commission last March.

During the Spring 2016 legislative session, there was one more attempt to revive the commission using a different balance of appointments. This time McCrory did veto the bill. He later worked out a deal with Senate leaders that dropped the commission concept. The bill cleared the House, but without the support of Rep. Chuck McGrady, R-Henderson, the main author of the bill McCrory vetoed as well as 2014 legislation. McGrady argued that another layer of oversight was necessary.

In 2015, while the legal controversies swirled, DENR pressed ahead with its role under the Coal Ash Management Act. Among the assigned tasks were the classification of the sites, which would set the standards for remediation and closure, and testing of private wells around coal ash sites to determine if the water was safe to drink. Both would prove controversial.

The coal ash legislation passed in 2014 after the Dan River spill calls for closure of the impoundments at all 14 sites. Duke Energy has committed to moving ash from seven sites, but the exact details at each won’t be known until closure plans are submitted. The law also requires public comments and review of the plans and gives DEQ the final say.

How the sites are classified is critical to the closure plans. Closure plans for high- and intermediate-risk sites must include excavation and removal of ash to a lined landfill. Plans for sites classified as low risk could include drying out the impoundment, installing an impermeable liner over it and leaving the ash in place.

Right now, seven sites could qualify for a cap-in-place plan under the new law passed this year. To qualify as low-risk Duke must provide an alternative water supply, obtain pollution discharge permits and meet conditions set out by DENR on dam safety. The company has until July 1, 2018, to meet those requirements. If it does, the sites will be automatically reclassified as low-risk.

To meet the dam safety requirements under the law, Duke has stepped up repairs at 16 impoundments the state has cited as having deficiencies that could compromise their integrity. In a dam safety order issued August 22, the state’s Division of Energy, Minerals, and Land Resources, which has jurisdiction over dam safety, gave Duke until the end of the year to fix problems at all 16 dams.

The discharge permits may prove the stickiest of all because of a controversial plan by DEQ to include numerous seeps and leaks from the dams in the permits. Environmental organizations, which have complained for years that the seeps are unpermitted discharges, are contemplating a legal action over the issue.

On the ground, removal plans continue to move forward at priority sites. As of Sept. 25, 7.69 million tons of ash had been moved. Close to half of the 3.7 million tons excavated from a coal ash basin near Lake Julian in Asheville was used as fill material during an expansion at Asheville Regional Airport. The rest was buried in new landfills, including two at former brick mines in Lee and Chatham counties.

Hurricane Matthew recently underlined concerns about the proximity of ash basins to waterways. Early in the storm, the company and DEQ officials said they doubted there would be much threat from two inactive impoundments that had been topped by floodwaters because the sites were covered with vegetation. At present, estimates differ on how much ash was washed downstream.

This year, the spill hasn't been forgotten in the governor's race. Democratic candidate Roy Cooper has challenged McCrory's ability to handle the issue impartially given the governor's longtime ties with Duke. The recent controversy over rescinding the do-not-drink notices has added fuel to Cooper's argument.

The Dan River spill itself continues to offer lessons about what could go wrong should an ash basin empty into a river and how difficult it is to undo the damage.

Although it was the site of intense clean up and recovery efforts, estimates are that 90 percent of the coal ash from two years ago still sits at the bottom of the river.