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.