Coal ash settlement in N.C. a guideline for Georgia – bury in lined basin or recycle
By David Pendered
A legal settlement over coal ash in North Carolina has resulted in the type of outcome Georgia environmentalists would like to reach here – excavation of coal ash from all of a power company’s unlined basins, and placement in an onsite lined landfill or recycled for industrial use.
This settlement is top-of-mind among Georgia environmentalists as the Georgia Environmental Protection Division is poised to issue permits to Georgia Power. The permits could authorize some 50 million tons of coal ash to be left in place, in unlined basins, where environmentalists contend it is up to 80 feet deep in aquifers that it could pollute through leakage and by the very fact that this industrial waste is to be allowed to occupy part of the groundwater table forever.
Coal ash contains toxic metals and other pollutants, according to numerous federal reports, including this one by the federal Environmental Protection Agency.
Of note, Georgia EPD now wields direct oversight of coal ash, along with so-called “citizen enforcement” of the federal standards. EPA assigned the authority to Georgia EPD in a decision approved Dec. 16, 2019.
In North Carolina, the landmark settlement signed Dec. 31, 2019 calls for Duke Energy to excavate about 80 million tons of coal ash from unlined basins at six coal ash sites. The material is to be relocated onsite, where it is to be placed in a lined basin, beneficially recycled into a component of cement, or otherwise reused for an industrial purpose. .
The first removal is to be completed by the last day of 2028; the final removal is to be completed no later than Dec. 31, 2035. Duke Energy is allowed to seek extensions to address unanticipated problems.
The final settlement was reached after a nine-year battle led by the Southern Environmental Law Center and conservation groups. The effort stretched across the North Carolina governor’s office, legislature, a federal grand jury, Wake County Superior Court, and the state’s independent, quasi-judicial Office of Administrative Hearings.
In total, Duke Energy has been compelled to address 126 million tons of coal ash. This sum represents about 80 million in the latest deal, plus about 46 million tons of coal ash to be excavated at nine sites as a result of previous settlements and court orders. The status of the project is posted in the company’s status report.
The total amount Duke will dispose in lined basins is about 2 ½ times the amount of coal ash of concern to Georgia environmentalists, which totals about 50 million tons.
The settlement was signed by the power producer, Duke Energy Carolinas and Duke Energy Progress, and the North Carolina Department of Environmental Quality.
The Southern Environmental Law Center signed on behalf of community groups it represented: Appalachian Voices; Stokes County Branch of the NAACP; Mountaintrue; Catawba Riverkeeper Foundation; Sierra Club; Waterkeeper Alliance; and the Roanoke River Basin Association.
In Georgia, Georgia Power does not intend to excavate coal ash and relocate it to a lined basin at any of its five largest sites in Georgia. The company has stated that state regulations, “are protective of water quality” and that the closures are being completed with, “advanced engineering methods.”
Environmentalists disagree that the unlined basin closures comply with state and federal standards, which they contend prohibit disposal submerged in groundwater, and which will allow toxins and other pollutants to leak.
The company’s plans don’t provide adequate protections to the environment and those who depend on clean water, according to an Aug. 5, 2019 letter sent to Georgia EPD by Chris Bowers, an SELC senior attorney. Bowers leads SELC’s coal ash efforts in Georgia, and he joined in SELC’s efforts in North Carolina and other states in the region.
Bowers letter states the coal ash basins are deeper than 80 feet deep in aquifers, and it observes:
- “These unlined impoundments will continue leaching toxic metals after closure, and placing a cap on top won’t change that: the waste is fed by buried streams and springs, flows that become polluted as they infiltrate the waste and then exit the basin.”
Georgia EPD could require Georgia Power to relocate the coal ash to a lined basin, but the agency is not signaling that intent, Bowers said.
“Georgia EPD does not appear to be heading in that direction,” Bowers said. “Georgia EPD has the statutory authority and responsibility to require closure that would comply with the standards that are in place to govern how these pits are closed. At least one other state agency has looked at whether closure with ash submerged in groundwater meets the federal criteria, and made the obvious conclusion that it will not. That is consistent with EPA’s own guidance on the matter, not to mention what the language says. Whether EPD will have the will to make the right decision here is very much in question. Even before the coal ash rule was adopted in Georgia, the state’s solid waste statute prohibits EPD from exercising its permit authority in a way that degrades the environment. We continue to hope that it will make the right decision here.”
Georgia EPD wields considerable authority over coal ash because the EPA has authorized the state to operate, “in lieu of the federal program.” The decision announced by the EPA observes:
- “Georgia’s program contains all the elements of the federal rule, including requirements for location restrictions, design and operating criteria, groundwater monitoring and corrective action, closure requirements and post-closure care, recordkeeping, notification and internet posting requirements.
- “It also contains state-specific language, references and state-specific requirements that differ from the federal rule, which EPA has determined to be at least as protective as the Federal criteria.”
EPA retains authority over four areas for which Georgia EPD did not apply. The four areas pertain to threatened and endangered species; impoundments at inactive facilities; unlined basins that continue to receive coal ash; and basins lined under terms of a regulation that has been vacated.
But Bowers cautions that: “The regulations are only as effective as the state agency’s will to properly enforce them. If waste permits are wrongfully issued, you can end up with a perverse result where a company holds a permit to leave its industrial waste in and exposed to groundwater, rather than a permit that requires actual cleanup.”