A bill making its way through the legislature purportedly solves the problem of coal-ash storage in North Carolina. But does it?

By Gabe Rivin

A legislative proposal would set few new requirements for Duke Energy to monitor and clean up contaminated groundwater near coal-ash ponds.

At the same time, the bill would allow Duke to close its sites by covering coal ash with soil. Environmentalists say this would not prevent the underground water from becoming contaminated, tainting drinking-water supplies for residents across the state.

The bill, which mirrors a proposal by Gov. Pat McCrory, is a high priority for state legislators and the governor. North Carolina made national headlines in February after an estimated 39,000 tons of coal ash spilled from a Duke pond into the Dan River. The spill, the third-largest of its kind in U.S. history, brought renewed public attention to the hazards of coal ash.

At a June 5 Senate committee hearing, state environment officials defended the Republican-supported bill. Tom Reeder, director of the water-quality division at the N.C. Department of Environment and Natural Resources, said the bill “aggressively and comprehensively addresses … the state’s water resources, which are really at the biggest threat from this coal-ash problem.”

Reeder explained that the bill would require Duke to monitor groundwater near its ponds. If Duke found that it had contaminated the subsurface waters, within 270 days it would have to submit a “corrective action plan” to DENR, in which it detailed how and when it would clean the water.

After receiving DENR’s approval, Duke would have 30 days to begin implementing the plan.

“You’ve had a problem that’s maybe 70, 80, a 100 years in the making,” Reeder said. “This plan, in about a year, will come up with a comprehensive solution to assess those problems at all 14 facilities, and then come up with a plan to remediate those problems.”

Anything new?

Although Reeder’s comments suggested that these obligations would be new, a look at Duke’s current requirements reveals a murkier picture.

Duke, in fact, already is required to monitor and protect groundwater. And DENR has already sued Duke to force a cleanup, citing current state law.

Duke’s water monitoring was voluntary at first, according to Susan Massengale, a public-information officer at DENR. But as Duke’s pollution permits have come up for renewal, DENR has made groundwater monitoring a legal requirement.

Beyond that, Duke, like other industries, is obligated by state law to not contaminate groundwater. (See 2L .0106 and 2L .0107 of the previous link.) If Duke contaminates groundwater, it must take “immediate action” to stop the source of contamination, according to state rules. It must also “implement an approved corrective action plan” – just as the GOP-backed bill requires.

The state is not deaf to its own legal obligations. It has sued Duke for groundwater contamination at all 14 of its coal-ash sites, according to Drew Elliot, the communications director at DENR. The lawsuits seek to force Duke to clean up the contamination, he said.

The coal-ash bill then seemingly serves a different purpose, according to D.J. Gerken, a managing attorney with the Southern Environmental Law Center.

“The real function of this section of the governor’s bill is to preempt active litigation for known violations for which there is a confirmed remedy,” Gerken said. Instead, he said, the bill would put the problem into a “perpetual study process to confirm contamination we already know about.”

Continued contamination

Though a gray Dan River made for lurid photographs, coal ash has been a longstanding hazard for subsurface waters in North Carolina.

Coal-fired power plants generate ash when burning coal for fuel. Utilities store this ash in wet ponds, preventing it from floating through smokestacks and into the air.

But, as is the case in North Carolina, many older ponds were built without liners, which act to prevent ash from seeping through the bottom of ponds and into groundwater.

In North Carolina, each of Duke’s 14 sites has contaminated nearby groundwater. That is a serious health concern for residents who draw the water from their private wells.

Groundwater that has been contaminated by coal ash can be highly carcinogenic, according to the U.S. Environmental Protection Agency. Unlined ash ponds can leach large quantities of arsenic into groundwater, increasing the risk of cancer for one in 50 people who use the water, according to an agency risk assessment.

The ponds can also leach hazardous amounts of lead and selenium, according to the agency. Those elements can cause nervous-system problems and raise blood pressure for those who use the tainted water.

For some environmentalists, the solution is simple: Duke should move all of its ash to lined landfills.

The Republicans’ bill does require Duke, within 90 days of the bill’s passing, to devise plans to remove coal ash from four of its 14 sites.

But at its remaining sites, Duke would have a suite of options, including the covering of ash with soil.

Covering the ash is a straightforward idea: Block rainwater from entering the ash, and the ash will dry out. It then won’t be able to transfer its toxic constituents through the bottom of the pond and into groundwater.

But there’s a problem with this plan, according to Cassie Gavin, director of government relations for the state chapter of the Sierra Club. This method won’t prevent subsurface water from migrating into – and back out of – the deeply dug coal-ash ponds and carrying away ash constituents.

Gerken said the problem is one of geology.

“In most of these sites, the coal ash itself – the bottom level of the coal ash – is below the groundwater table, or is sitting in a historic drainage or stream, or there are natural springs still active underneath the coal ash,” he said. (A water table is the highest level of underground water.) “Groundwater is actively moving through the ash under the ground.”

Uncertain timelines

Environmentalists have voiced their support for a Democrat-sponsored coal-ash bill. The bill would require Duke to move all of its ash into lined landfills. It would also set firm deadlines for Duke to close all of the ponds, a requirement that isn’t included in the Republican-backed bill.

Under the Republican bill, DENR would create a list that prioritizes the closure of the sites. Once this list is finalized, Duke would have to create concrete plans and schedules to close its sites.

But the bill does not set any firm deadlines for the creation of DENR’s list, or for Duke’s closure of the ponds.

“It doesn’t identify what will happen with those coal-ash ponds,” said Gavin.

Despite their criticisms, environmentalists have praised several components of the GOP-backed bill.

The bill classifies as solid waste the coal ash that has been removed from ash ponds. Gavin said this is good policy, since the state has “decent solid-waste landfill regulations.”

The bill also requires Duke to share information about the dams at its ash ponds, including plans for emergencies.

Legislators have indicated that the Republican bill is a starting point for debate about coal-ash regulation. The bill has only received one hearing in the Senate.

The Democrats’ bill in the Senate has been referred to the Rules and Operations Committee, a dead end for many pieces of legislation. But in the House, it has been referred to the Public Utilities and Energy Committee.