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Illegal discharges of toxic heavy metals also have been detected seeping from the ash-laden ponds into the nearby French Broad River.
For environmentalists following the issue, those are reasons enough for state regulators to take immediate steps to address the pollution.
That’s also why they are dismayed with a proposed settlement of a lawsuit against Duke by the N.C. Division of Water Quality.
The consent decree announced last week calls for more testing of problems already well-documented and little in the way of stopping the contamination, said Hartwell Carson, French Broad Riverkeeper with the Asheville-based environmental group Western North Carolina Alliance.
“It’s basically a way to drag this out as long as possible,” Carson said. “This is definitely a deal to study this almost indefinitely, when what we know is there are violations of the Clean Water Act and state groundwater standards.
“And everyone knows where it’s coming from. It’s coming from the unlined hole in the ground that’s full of toxic coal ash.”
State officials contend that while the proposed settlement outlines a series of steps to assess the contamination at the Lake Julian plant and Duke’s Riverbend facility in Gaston County, it also requires the utility to develop plans for addressing the problem.
“You have to determine the extent of the contamination before you know what it is you have to do to clean it up,” said Jamie Kritzer, spokesman for the N.C. Department of Environment and Natural Resources. “We’re doing our due diligence to do just that. We have to act within the guidelines set forth by state law, and that’s what we’ve done.”
New attention on old problem
North Carolina has 14 plants that burn coal to heat water, creating steam that turns turbines to produce electricity. About 10 percent of what is burned becomes ash — a black, powdery material that is sluiced into holding ponds.
The Asheville plant has two ponds. One built in 1964 covers 45 acres, and the other constructed in 1982 is 46 acres.
At spots, the ash is 60 feet deep, and together the lagoons can hold some 450 million gallons.
The issue of coal ash grabbed the nation’s attention in 2008 when an ash pond at Kingston Power Plant in Tennessee ruptured, inundating homes downhill with some 1.1 billion gallons of toxic coal ash slurry.
Despite the age of Duke’s coal ash ponds near the French Broad, the state first required groundwater testing three years ago. Those tests found levels of contamination well above state health standards with toxic heavy metals associated with coal ash.
Carson also collected samples from seeps and springs flowing into the French Broad next to the plant that tested positive for many of the same toxic substances. Such unpermitted discharges violate the federal Clean Water Act.
In addition, a study by the Duke University Nicholas School of the Environment released last year found that the facility discharges arsenic, selenium, cadmium and thallium in concentrations above U.S. Environmental Protection Agency standards.
“There really is no question about the contamination,” said D.J. Gerken, an attorney with the Southern Environmental Law Center in Asheville. “We have no doubt there is enough confirmation of the contamination to require action.
“They are kicking the can down the road when it comes to fixing the source.”
Frustrated by a lack movement on the state’s part, the law center, representing several environmental organizations, in January filed notice of intent to sue Duke Energy over violations of the Clean Water Act.
That was followed in March with the filing of the state’s suit in Wake County Superior Court against the utility.
The complaint contends continued operation of the plant in violation of groundwater standards “without assessing the problem and taking corrective action poses a serious danger to the health, safety and welfare of the people of the state of North Carolina and serious harm to the water resources of the state.”
In addition to groundwater contamination, the lawsuit claims inspectors discovered seeps of materials making their way into the river. The chemicals include thallium, a highly toxic element associated with nerve damage, along with boron, selenium, iron and magnesium.
The proposed settlement includes a timeline of required actions to address violations or threatened violations of state statutes and rules for water quality protection. It also calls for an initial fine of $99,112.
Failure to comply with provisions of the order also would subject the utility to fines of $1,000 per day for the first 30 days and $5,000 per day thereafter for each violation.
Lawsuit a first
Erin Culbert, spokeswoman for Duke Energy, said the utility has complied with the conditions of all its permits and that water quality in the French Broad is good.
“We all share the same objectives in protecting water quality, which is reflected in this agreement,” she said. “Key provisions in the agreement call for more rigorous information gathering, monitoring and reporting of discharges to groundwater and surface waters.”
Gerken said the settlement is inadequate. The state already has the information it needs to force immediate action, he said.
“The state submitted a sworn statement saying there is contamination, and instead of taking action they are looking to study what they already know,” he said. “There are no firm deadlines in this agreement.
“There’s all of this study and analysis. Meanwhile, we have coal ash in unlined lagoons that we know is still contaminating groundwater. They are still dumping coal ash into these ponds.”
But Kritzer noted the lawsuit is the first in history filed by the state to address unpermitted discharges from coal ash ponds.
“The lawsuit talks specifically about the cleanup of the pollution,” he said. The settlement requires not only “a thorough assessment of the extent of the contamination, but a corrective action plan for how this problem will be addressed going forward.”
Gerken said he believes the state filed its lawsuit as a means to circumvent the Southern Environmental Law Center from lodging a complaint with the court.
“The notice we issued was for a lawsuit under the Clean Water Act,” he said. “The way the law works, if the state within 60 days files a lawsuit, we can’t file a second lawsuit on the same claims. Instead, we have to intervene in the state’s case.”
Gerken said his organization has filed a motion with the court to make it a party to the case, and a judge has yet to rule.
The public has until Aug. 14 to submit comments on the proposed settlement.
“We recognize this is a matter of great public interest,” Kritzer said. “We are striving to be as forthright and as transparent as possible.”
EPA proposed regulating coal ash as a hazardous waste in 2010, but no action has been taken.
According to the Duke University study, the burning of coal to generate electricity produces about 130 million tons of ash each year in the United States. It found that discharges from coal ash ponds “lack consistent monitoring and limit requirements that are relevant to composition of (ash) effluents.”