January 23, 2014. Burning coal  generates ash; depending on the  type of  coal,  the ash may contain iron, chromium,  manganese, lead, arsenic, boron and selenium.   At high levels of exposure, some  of those elements  cause  health problems  such as increased cancer risk and neurological damage.  At many coal-fired power plants, large open impoundments (or “ponds”) store coal ash in water; the ponds may also receive stormwater and process wastewater from the electric generating plant. Dry ash may be disposed of in a landfill, but can  also be  used in manufacturing cement or as additional fill material on construction sites.  Concern about the environmental impacts of  coal ash disposal prompted the U.S. Environmental Protection Agency (EPA) to  propose new federal rules  in 2000. EPA ultimately withdrew the proposed rules in the face of opposition from  electric generating companies, members of Congress and state governments. More than a decade later, regulation of coal ash disposal  remains at a stalemate — no new federal rules have been adopted and Congressional supporters of the electric generating companies have responded to a new EPA  rule proposal by attempting to remove EPA’s authority to regulate coal ash disposal altogether. In the meantime, data collected by EPA and events in North Carolina suggest real risks to surface water and groundwater supplies.

Coal ash in North Carolina.  Duke Energy Carolinas and Duke Energy Progress (related companies  resulting from the 2012 merger of Duke Energy and Progress Energy)  have a combined 33  wet coal ash ponds located at 14 electric generating stations  in North Carolina.  You can find a map showing the location of the N.C. ash ponds here.  The  ponds have been largely unregulated until very recently.  No state or federal standards applied to construction of the existing coal ash ponds. Unlike modern landfills, the ash ponds  are not lined to prevent contaminants from percolating into the groundwater below.   Although coal ash  can have some of the characteristics of hazardous waste,  EPA  has excluded  coal ash from federal hazardous waste regulations.

Before  2009, DENR’s water quality program exercised  very limited regulatory authority over coal ash ponds.  The Division of Water Quality (DWQ)  issued a federal Clean Water Act permit for any direct discharge from an ash pond to surface waters, but did not require stormwater controls or groundwater monitoring. State law exempted coal ash ponds and other utility impoundments from regulation under the  N.C. Dam Safety Act. The  state’s largely hands-off approach to coal ash ponds  began to change after a massive spill at the Tennessee Valley Authority (TVA) Kingston plant in 2008.   On December 22, 2008,  an  ash impoundment at the  Kingston plant breached and spilled an estimated  5. 4  million cubic yards of ash slurry. The spill flooded 15 homes, covered 300 acres and deposited over 3 million cubic yards of ash in the nearby Emory River, making it one of the largest industrial spills in American history. The cleanup cost $1.1 billion and  took over four years to complete.

In response to the TVA disaster, North Carolina legislators introduced several bills in 2009 to strengthen state regulation of coal ash disposal.  House Bill 1354    may have been  the most comprehensive; the bill  set standards for coal ash disposal,   required groundwater monitoring around  existing ash ponds, and prohibited construction of new wet ponds.  The bill ran into opposition from the major electric generating companies and never got out of committee. The only piece of coal ash legislation enacted in 2009,   Session Law 2009-390 , repealed  the N.C. Dam Safety Act  exemption for coal ash ponds and other utility impoundments.

Although comprehensive state legislation on coal ash disposal failed,  DWQ increased efforts to use existing state laws to  reduce the water pollution risk and  began putting groundwater monitoring requirements in  Clean Water Act  permits for coal ash ponds in 2009-2010.  One of the factors  in  DWQ’s decision: troubling results from  voluntary groundwater monitoring carried out by Duke Energy and Progress Energy as part of an  industry-led program started in 2006.  DWQ also began  work on  stormwater requirements for  coal ash  disposal facilities.   In 2013,  several things happened  to shine a much brighter light on the coal ash ponds in North Carolina:

Clean Water Act citizens’ suits and  DENR enforcement action.  In early 2013,  the Southern Environmental Law Center (SELC) filed two  notices of intent to sue under the Clean Water Act  based on water pollution from coal ash ponds. (Under the Clean Water Act, a citizen  can sue to enforce the Act only  if the water quality permitting agency has failed to take effective enforcement action. The 60-day notice  gives the permitting agency  time to show that effective enforcement action has  been taken.)  One notice, filed on behalf of the N.C. Sierra Club, Western N.C. Alliance and the Waterkeeper Alliance,    concerned illegal discharges  into the French Broad River from ash impoundments at the Asheville Steam Electric Generating Plant operated by Duke Energy Progress.  The other notice, filed on behalf of the Catawba Waterkeeper Foundation, attributed contaminants in Mountain Island Lake  – a water supply for the City of Charlotte – to  seeps from coal ash ponds associated with the Riverbend Steam Station in Gaston County operated by Duke Energy Carolinas.

In response to the  two  SELC notices,  DENR filed enforcement actions against Duke Energy Carolinas and Duke Energy Progress  in the spring of 2013 and immediately  began work on a consent order to resolve  the Asheville and Riverbend  violations.   The state enforcement action described  illegal discharges in the form of seeps through the impoundment walls at both facilities and groundwater standard violations near  the Asheville impoundments.  After taking  public comment on a draft consent agreement, DENR filed a revised consent agreement with the court in October 2013.  You can find a copy of the proposed consent agreement  here. The consent agreement would require the companies to pay civil penalties, increase groundwater monitoring  and eliminate unpermitted discharges  to  rivers and lakes. The consent agreement has not yet been approved by the court;   meanwhile, the pending state enforcement action keeps the threatened citizens suits on hold.

Drinking water well  contamination near  the  Asheville  coal ash pond.  In 2012,  the state water quality program   found  high levels of iron and manganese in one of five private drinking water wells located near the Asheville  plant.   When DENR retested the well  in 2013,  the results showed a level of contamination that made the water unsafe for use without filtration and  DENR  ordered  Duke Energy Progress to provide the homeowner with an alternative water supply and increase off-site groundwater monitoring around the  ash pond.   The contaminated drinking water well added another groundwater impact to those  identified in the DENR enforcement action filed earlier in the year.

Duke Energy’s agreement with Cape Fear Public Utility Authority. Last fall, Reporter Bruce Henderson  wrote  an  article  for the Raleigh News and Observer about an  unusual agreement between  Duke Energy Progress and Cape Fear Public Utility Authority.   Cape Fear Public Utility Authority has  two public water supply wells located within 2,000 feet of an impoundment holding coal ash from Duke’s Sutton Electric Generating Plant; one of the two wells supplies water to the Flemington community.  Under the agreement, Duke Energy Progress will pay up to $1.8 million  to extend a water line  to carry treated  Cape Fear River water to Flemington and the Authority will close the water supply well. The agreement is significant for two reasons:

1.  In entering into the agreement, Duke has implicitly acknowledged that  groundwater contamination from  the  coal ash pond  may  move offsite and contaminate  the public water supply wells.

2. The agreement requires  Cape Fear Public Utility Authority to close four existing water supply wells in a 17-square mile area bounded by the Cape Fear and Northeast Cape Fear rivers. The Authority also agrees  not to install new  public water supply wells  in the area.  As a result,  groundwater in the entire 17-square mile area will be off-limits for  public water  supply for the foreseeable future because of the potential for contamination from the coal ash pond. (The agreement does  not affect private water supply wells in the area, but those wells would presumably face the same risk of contamination.)

Total cost of the project has been estimated at $2.25 million and costs above the first $1.8 million will be shared between Duke Energy and  Cape Fear Public Utility Authority. You can find a copy of the agreement (as presented  at the October 2013 meeting of the Cape Fear Public Utility  Authority Board)  here.

National data on environmental harm caused by  coal ash disposal.  A 2007 EPA report   assessed 85 instances of  suspected damage  caused by disposal of coal  ash in  landfills or  in ponds.  In 67 cases,  EPA confirmed  either  “proven”  damage (direct health impacts or documented harm to fish, wildlife, or water quality) or “potential” damage (contamination exceeding  drinking water standards either  beneath or near the waste disposal site).  The 67 cases broke down into 24 proven damage cases and 43 potential damage cases.   In the remaining 18 cases, EPA could not confirm a link between  coal ash disposal and environmental or health risks.

In 2009, EPA  surveyed  electric generating companies  to get  more information specifically on wet ash impoundments and  asked the  companies to report  any known  spills or discharges  that had occurred over the previous ten years (not including groundwater releases).  The 240  companies responding to the survey reported  29  spills, breaches and  discharges.  There was little overlap between the incidents reported in the survey and those assessed in EPA’s 2007 report.  Some of the spills reported in the 2009 survey had occurred since the 2007 assessment; others had never been reported to EPA.

North Carolina in the national data.  Two  of the “proven” damage cases described in the 2007 EPA report involved older incidents at North Carolina facilities.   Permitted releases of  water from a coal ash impoundment  at the Roxboro Steam Electric Generating Plant made  fish in Hyco Lake unsafe to eat for a number of years because of high levels of selenium.  In 1990,  Carolina Power & Light shifted to a dry ash system at the Roxboro plant to meet tighter selenium discharge limits and the fish consumption advisory was lifted in 1994.  In the second “proven” damage case from North Carolina, selenium in  discharges from an impoundment at Duke Energy’s Belews Creek plant entirely eliminated 16 of  20 fish species originally found in Belews Lake, including all of the major sport fish.  Under state orders to reduce the selenium discharge,   Duke Energy changed its method of fly ash disposal in 1985 and the state lifted the  fish consumption advisory for Belews Lake  in 2000.  (Descriptions of the environmental damage at Hyco Lake and Belews Lake come from the 2007 EPA  Coal Combustion Waste Damage Assessment Report; the link is provided  above.)  Duke Energy’s Allen Steam  Generating Plant appears in the EPA list of potential damage cases. The Asheville and Riverbend releases  cited in  DENR’s 2013 enforcement action do not appear in either the 2007 EPA report or in the 2009 survey  responses submitted on behalf of Duke Energy and Progress Energy.

State and federal regulatory action?   In June of 2010, EPA published  a new draft rule on disposal of coal combustion residuals. The rule proposed  two alternative approaches to regulating coal ash disposal –1.  treat the ash as a “special waste” under federal hazardous waste rules, establishing specific standards for disposal; or 2. adopt standards for disposal of coal ash as solid waste (the same broad category that covers other, non-hazardous waste). EPA has not yet decided on  which path to take and in the meantime there have been several efforts to shut down the EPA rulemaking entirely.   In July of 2013, the U.S. House of Representatives approved H.R. 2218 (The Coal Residuals Reuse and Management Act of 2013)  which would prohibit EPA from adopting enforceable national standards  for  coal ash disposal and leave regulation to the states.  See the Library of Congress bill summary for more on H.R. 2218.  The U.S. Senate has not acted on the bill.

In North Carolina, the Regulatory Reform  Act of 2013 ( Session Law 2013-413) included a provision limiting DENR’s  authority to require steps to contain groundwater contamination at a  permitted waste disposal facility  — including coal ash impoundments.  For more detail, see the  section on groundwater in an earlier post on 2013  water quality legislation.

So.   It seems clear that large, unlined coal ash impoundments present  some  risk to groundwater,  surface water  and  fish. Recent  events suggest that the risk may be greater than previously known. There was little or no groundwater monitoring around coal ash ponds  before 2006 and  no state oversight of  groundwater monitoring until 2009-2010.  It is simply a fact that groundwater contamination is much more likely to be found if someone is actually looking for it.  The same is true for discharges to rivers and lakes through the walls of coal ash impoundments. The  Riverbend and Asheville  enforcement cases  only happened after citizens documented  unpermitted discharges and gave notice of intent to sue under the Clean Water Act.  It is not clear that the state’s water quality program had found the illegal discharges identified in the consent order or has the resources to do adequate inspections of these large  impoundments.  (The Asheville impoundments alone total 91 acres.) So as new information suggests the need for  frequent, careful inspection of coal ash ponds and quick, effective response to groundwater contamination, state budget and environmental policies are moving in the direction of making both  more difficult.