Opinion

Opinion

FRANK HOLLEMAN: Pressure from citizens in coal ash communities won cleanup settlement

Posted January 12, 2020 5:00 a.m. EST
Updated January 12, 2020 6:19 a.m. EST

Coal ash

EDITOR'S NOTE: Frank Holleman is senior attorney with the Southern Environmental Law Center.


The comprehensive North Carolina coal ash cleanup settlement is a victory that belongs to North Carolina’s coal ash communities.

Ten years ago, as a general rule Southeastern utilities, including Duke Energy, disposed of millions of tons of coal ash, containing toxics like arsenic and mercury, in large unlined pits in groundwater on the banks of rivers and lakes, held back only by leaking dikes. These sites polluted outside of the public eye, but the country received a loud wakeup call when TVA spilled over one billion gallons of coal ash at Kingston in 2008. Yet, neither the utilities nor governments took action to solve the problem.  Instead, the utilities planned to leave the ash in unlined pits forever, and the states were going along.

In 2011, we at the Southern Environmental Law Center resolved to meet with local communities concerned about coal ash pollution in their neighborhoods and to determine if there was anything that could be done to stop this pollution and prevent another Kingston disaster from happening. Beginning in South Carolina, community groups were willing to go to court, and local residents were willing to speak up at public hearings against the richest and most powerful organizations in their states. The South Carolina utilities responded and agreed to excavate every one of their unlined waterfront coal ash pits.

North Carolina was a different story. In 2013 after community groups went public and began to go to Court, then-Gov. Pat McCrory and his Department of Environmental Quality joined hands with Duke Energy to block local communities from enforcing the law. When the state and the utility tried to squelch community groups through a settlement that would have allowed ash to remain in place in Asheville and in Charlotte, five thousand people sent in comments in opposition. Community groups hung tough during 2013 as they and we fought both in court and the court of public opinion.

Then in February 2014, the Dan River spill exploded on the North Carolina political scene. The Associated Press published an expose of the cooperation of the state with Duke Energy, a federal grand jury issued subpoenas, and politicians ran for cover. In the aftermath, Duke Energy for the first time committed to excavate its coal ash from four sites (at Dan River and in Asheville, Charlotte, and Wilmington), in August 2014 the legislature passed the Coal Ash Management Act, and in 2015 Duke Energy entered into a plea agreement for its coal ash practices across the state.

The public then poured out to attend meetings and public hearings held through 2016 about what should be done with the coal ash at sites across North Carolina. Another scandal erupted when the state first told coal ash neighbors not to drink their well water and then told them the opposite. Duke Energy ultimately committed to excavate four more sites (in Goldsboro, Lumberton, Moncure, and Salisbury), but the legislature and DEQ acted again to prevent excavation of the remaining six sites by kicking the decision down the road.

Then in 2016, there was an election. While President Trump carried North Carolina, Gov. McCrory was voted out, and the coal ash scandals played a role. The new governor, Roy Cooper, promised an independent coal ash review.

Once more, North Carolina’s communities stuck to their guns. They persisted in court. When the state held more hearings in January of 2019, they turned out in force – and overwhelmingly demanded that coal ash at the remaining sites be moved to safe dry, lined storage. In April 2019, Governor Cooper’s DEQ finished its review of the science and the public’s comments and concluded that all of North Carolina’s coal ash communities should be protected from the pollution and threats posed by unlined, leaking coal ash impoundments. After first challenging those decisions, Duke Energy changed its corporate policy and accepted what North Carolina’s communities demanded.

This was a long-fought battle. There is a lot of credit to go around. This outcome would not have happened without the decisions of Gov. Cooper’s Department of Environmental Quality. I have to say it would not have happened without the dedication and legal expertise of the Southern Environmental Law Center. North Carolina’s press covered the story year in and year out, and scientists investigated the effects of coal ash.

But the real heroes are the residents of North Carolina’s coal ash communities. They were willing to stand up publicly to institutions of great power, to go to court and testify in legal proceedings, to keep up the fight for almost a decade, and to insist that their clean water be protected in ways it had never been protected before. At a time when great cynicism is often justified, we should celebrate when democracy works.  This time, it did.

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