Environment

Several members of Lumbee tribe, climate coalition ask DEQ to revoke Atlantic Coast Pipeline permit; EPA proposes to clamp down on states’ authority

Atlantic Coast Pipeline construction began in Northampton County but has since stopped because of court rulings in Virginia. (File photo: Lisa Sorg)

While the Trump administration proposed rules to strip states of some authority to reject natural gas pipelines, opponents of the Atlantic Coast Pipeline petitioned state regulators to revoke the water quality permit for the controversial project.

“We asked the department to consider the new information in the petition today,” said Donna Chavis, a member of the Lumbee Tribe in Robeson County and Friends of the Earth, during a press conference at the legislature. “The cumulative impacts are worse than previously thought. We urge DEQ to reconsider its decision. We believe they want to do what is right.”

The ACP would run more than 160 miles in eastern North Carolina from Northampton County to Robeson County, which has the largest community of American Indians east of the Mississippi River.

Construction had begun in Northampton and Cumberland counties, but stopped after several court rulings in Virginia vacated federal permits. The cost of the project, originally estimated at $5.5 billion, is now at least $7.5 billion.

After months of requesting additional information from Dominion and Duke Energy, co-owners of the ACP, he NC Department of Environmental Quality granted the water quality permit in January 2018. Known as a 401 permit, it is among the requirements for a pipeline project to proceed.

Legally, the state can revoke or amend a 401 permit if information in the original application was incorrect or the conditions under which the certification was made have changed. “Both triggers for revocation have been met,” the petition reads.

“The information doesn’t have to be incorrect at the time it was presented. It doesn’t matter if it was withheld,” said Ryke Longest, director of Duke University’s Environmental Law and Policy Clinic. “The scope of project has changed or is not as described in the proposal.”

DEQ Sarah Young spokeswoman told Policy Watch the the department received the petition “and is reviewing it.”

The petitioners, including the NC Climate Coalition, say ACP and FERC made math errors and failed to disclose ACP’s possible extension into South Carolina, also known as “segmentation.”  ACP also failed to evaluate the cumulative impacts of nine natural gas projects on the Lumbee community, according to the petition. And since DEQ issued the 401 permit, there have been  court rulings directing regulators to also consider the effects of energy projects on climate change.

Ryan Emanuel, a hydrologist and Lumbee, said the ACP and FERC both erred in their environmental justice analysis because they compared the demographics of the affected census tracts with the rest of the county average, rather than the state.

Robeson County is 41.7 percent American Indian, according to 2017 census figures. Twenty-nine percent of its residents live below the federal poverty threshold. These percentages are starkly different from North Carolina as a whole: Just 1.6 percent of the state’s residents are American Indian, and 14.7 percent live below the federal poverty threshold.

Duke Energy has emphasized that the ACP will end in Robeson County and not extend into South Carolina. If there were an extension, DEQ would be required to also assess those impacts. However, the petition points out that these denials “are highly contradictory to other written and oral statements …”

During South Carolina Public Service Commission hearings, Dominion officials testified that “we would hope that the demand will arise, and that the pipeline would be extended into South Carolina. We have no plans to do so today, but I would hope that happens.”

In September 2017, Dan Weekley, Dominion Energy’s vice president and general manager of Southern pipeline operations told the Associated Press that “even though it dead ends in Lumberton, of course, it’s 12 miles to the border. Everybody knows it’s not going to end in Lumberton. We could bring in almost a billion cubic feet a day into South Carolina just by adding horsepower upstream.”

Mac Legerton, who lives in Robeson County, said that residents were puzzled that an M&R was being built if the ACP and its gas were to end there. The petition details nine natural gas projects within an eight-mile radius of Prospect, a small town in Robeson County, that are “interrelated and the cumulative impacts of which are greater than the sum of its parts.

Robeson County is not a landing pad but a launch pad Click To Tweet

Tammie McGee, a Duke Energy spokeswoman, said the petitioners “confused a M&R station with a compressor station. A compressor station pushes natural gas down a pipeline. The ACP only has one compressor station planned in North Carolina, and it will be in Northampton County, to push natural gas from the Virginia border into NC.

“The function of the M&R station in Robeson would be to pull natural gas off the ACP transmission line and distribute it through Piedmont’s system of distribution lines to serve existing customers and future growth in eastern NC. All of the natural gas from the ACP in NC will be consumed in the state, to benefit North Carolinians. There is currently no plan to extend the pipeline into South Carolina, which would require a completely new FERC process.”

These nine projects (see box) place a disproportionate burden on Robeson County and the American Indian and low-income people who live there, Legerton said.  “Robeson County is not a landing pad but a launch pad,” he said.

McGee said the assertions are “not factual.”

The petitioners, she said, have “lumped together existing Duke and Piedmont infrastructure and planned ACP infrastructure and manufactured some conspiracy theory that the indigenous population in that area is specifically targeted. Nothing could be further from the truth. Some of the infrastructure they cite has been in place for years or decades, reliably serving natural gas customers, and is no different than the infrastructure in any communities with natural gas service.”

Since DEQ issued the permit more than 18 months ago, the climate crisis has grown more urgent, both globally and in North Carolina. Two catastrophic hurricanes — Florence and Michael — hit the state last fall, whose characteristics, scientists say, indicate a warming planet.

Natural gas pipelines leak methane. A greenhouse gas, methane is roughly 28 times more efficient at trapping heat in the Earth’s atmosphere compared to carbon dioxide, and current levels of methane in the atmosphere are higher than at any point in the past 2,000 years, according to NOAA.

The petition details nine natural gas projects, some unrelated to the ACP, within an eight-mile radius of Pembroke/Prospect in Robeson County. A Duke Energy spokeswoman said some of these projects have been in place for years.

 

 

A 2018 study from Colorado State University showed that rate of methane entering the atmosphere from pipelines is far greater, 2.3 percent — than EPA estimates of 1.4 percent. (While that difference might seem small, it is actually 60 percent.) These rates translate to an estimated 14 million tons of methane leaking from pipelines each year.

Meanwhile, the Trump administration announced it would propose rules to prevent states from reject pipeline projects except in limited circumstances. Inside Climate News reported the story on Aug. 9.

Under the proposal, states would have no more than a year to decide on water quality permits, with no pauses or restarts to request more information. The federal government could also overrule a state decision in some circumstances.

States could not reject a permit based on erosion and sedimentation concerns, according to Inside Climate News, and could only consider “the potential for discharges” from a specific source.

Erosion and sedimentation can present serious problems for wetlands, rivers, lakes and streams. When too much dirt enters waterways, it can kill aquatic life and increase the cost of  treatment for downstream utilities. Bacteria and pathogens can also attach to the sediment particles, further contaminating the waterways.

Although the rules will most likely be legally challenged, if they become final, it could hamstring North Carolina regulators in their evaluation of a separate pipeline proposal, the Mountain Valley Southgate Pipeline, which would enter the state in Rockingham County, near Eden, and route southeast more than 40 miles before ending in Haw River.

Longest told Policy Watch that the proposed rules violate the Clean Water Act and “the principles of federalism” — which distributes certain powers and autonomy to the states. “We should be investing in securing the pipelines we have to eliminate leaks, not creating more opportunities for leaks and other adverse impacts to our natural resources,” Longest said.



2019 8 13%20Legal%20Petition%20to%20DEQ (Text)

Environment

Attorney General Josh Stein sues EPA over Trump administration rollbacks of clean air rule

Attorney General Josh Stein

North Carolina is among 29 states that announced today they are suing the EPA over its repeal of the Clean Power Plan, which limited emissions from coal-burning power plants.

“The Clean Power Plan is essential to addressing the climate change crisis and beneficial for our economy and health,” said Attorney General Josh Stein in a prepared statement. “The Trump administration’s replacement rule does nothing to address this crisis or protect us, and it violates the Clean Air Act in the process. The Dirty Power rule is exactly the wrong policy at exactly the wrong time. I’m committed to using my authority to uphold the law and protect our environment.”

The Obama administration developed the Clean Power Plan, with a goal of reducing carbon dioxide emissions 32 percent by 2030, relative to 2005 levels. Coal-fired power plants are a major source of carbon dioxide, a greenhouse gas that contributes to climate change. These plants also emit other pollutants that can worsen or cause respiratory illnesses, particularly in children.

More than two dozen states, including North Carolina under then-Gov. Pat McCrory, opposed Obama’s plan, and in 2015 sued to stop it, arguing the EPA had overstepped its authority. However, Roy Cooper, who was attorney general at the time, declined to pursue the lawsuit.

In 2016, the Supreme Court issued a stay, and the Clean Power Plan was never implemented. Stein withdrew North Carolina from the litigation in 2017, after Cooper was elected governor.

A year ago, President Trump’s EPA unveiled a its Affordable Clean Energy rule, which favored the coal industry, to replace the Clean Power Plan. By the EPA’s own estimates, the rule would contribute to a projected overall pollution decrease of 35 percent – far short of the 74 percent target set out in the Clean Power Plan, Stein said.

In June, the EPA formally eliminated the plan.

Stein and the coalition of 29 states suing the Trump administration argue that Affordable Clean Energy rule disregards requirements of the Clean Air Act. The CAA requires that limits on air pollutants, such as greenhouse gases, must be based on the emissions reductions achievable through the “best system of emission reduction.”

 

Environment

In coal ash lawsuit, DEQ employee testifies he didn’t look for wells when inspecting Brickhaven site

Trucks carry tons of coal ash to the Brickhaven Mine in Chatham County. (File Photo: Duke Energy)

Thad Valentine, an environmental senior specialist at the NC Department of Environmental Quality, looks like someone who spends very little time in courtrooms and a lot of time outside: burly, ruddy, sporting a short-sleeved work shirt that doesn’t require a tie.

But on Tuesday, he had been subpoenaed to testify in an administrative law hearing about his initial inspection of the Brickhaven mine near Moncure, where Charah, a disposal company, would eventually dump 7.3 millions of tons of coal ash from Duke Energy plants, ostensibly for structural fill.

The Coal Ash Management Act, which became law after the Dan River disaster, allows coal ash to be used as structural fill.

Valentine, who said he conducts about 200 inspections a year, 10 of them at mines, testified that he couldn’t remember if he visited Brickhaven or Colon, a similar facility in Lee County, before DEQ issued the permit. But during his initial inspection after the permit was granted, in 2015, Valentine said he observed the grading of dirt and the building of a pond.

What about wells? asked the environmental groups’ attorney Cathy Cralle-Jones.

“I don’t know if there was a well onsite,” Valentine replied. “I didn’t check for one.”

This revelation is important because if the liners beneath the coal ash leak, contamination can enter the groundwater, surface water and private drinking water wells. Cralle-Jones was trying to make the point that DEQ’s oversight of potential water contamination and its permitting processes were weak.

“There was no testing of a water supply well onsite,” Cralle-Jones said. “There was no survey or testing of the residential drinking water wells in the area.”

The case is now entering its fourth year. In May 2016, three environmental groups argued before an administrative law judge that parts of Brickhaven had never been mined. By permitting Charah to dig up new sites within the mine, the groups argued, DEQ was illegally allowing the company to create small landfills. Those mini-landfills wouldn’t have to comply with stricter solid waste standards.

Instead, DEQ issued a structural fill permit because it considered unmined land nonetheless “affected” in part, because it was within the mining boundary and would be excavated to “smooth the edges of the existing mine”.

“This opens a Pandora’s Box, setting forth a dangerous precedent that any party with a mining permit to do this can as long as it’s within the property boundary,” said Seth Barefoot, an attorney for the complainants.

Administrative Law Judge Melissa Lassiter upheld DEQ’s permits, concluding that the facilities were mines, not landfills. Superior Court Judge Carl Fox overturned Lassiter’s ruling; the EPA also considered the mines to be landfills under federal coal combustion rules.

DEQ prevailed on appeal, which allowed the material to be deposited in new cells. The Court of Appeals ruled Fox improperly reweighed and rewrote Lassiter’s opinion and sent the case back to her court.

Cralle-Jones had planned to call DEQ hydrogeologist Elizabeth Werner to the stand, but agency and Charah lawyers successfully argued to prohibit her from testifying since she was not part of the original hearing.

Cralle-Jones told the court she had planned to ask Werner about a December 2014 letter between her and Charah that originally called for sampling at four background monitoring wells. But several months later, Werner told the company via email that only one background well would be necessary.

“Why did the department allow a method that was less protective than the permittee suggested?” Cralle-Jones asked.

These wells are crucial because they can reveal existing water contamination — or the absence of it — and compare those results to monitoring after a project is built. If new or increasing amounts of contamination is present, then those findings should trigger an investigation.

Had they been installed, additional background wells could be helpful now that elevated levels of contaminants have been detected near the Brickhaven site. In June, DEQ sent a letter to Charah ordering the company to investigate the source of contaminant in groundwater monitoring wells that exceeded state standards, including cobalt, vanadium and barium. But with only one well to compare pre-fill conditions, the data could be limited.

Cralle-Jones said she would have asked Werner to testify about why, during the permitting process, she allowed eight monitoring wells to be moved.

“This shows why change in permit provision was arbitrary and unsupported and not protective of human health and the environment,” Cralle-Jones said.

Tom Myrick, an attorney representing Charah, countered that BREDL should have filed for a contested case hearing over the number of background wells when the permit was issued. “To let them raise the issue now is prejudicial,” Myrick said.

Lassiter did not allow the June letter into evidence.

Today’s hearing also illuminated how the Division of Energy, Mining and Land Resources inspects mines and reviews permits. Toby Vinson, DEMLR’s chief program director, testified that the division primarily monitors for erosion and sedimentation violations and reviews a permittee’s plans to avoid the runoff.

“As long as a permittee ensure no erosion or sedimentation from mining site, it will be approved?” Cralle-Jones asked.

“Yes,” Vinson said.

DEQ and Charah filed a motion to dismiss the case, claiming the Court of Appeals sent it back to Lassiter on merely procedural, not evidentiary grounds. “The petitioners had a chance to put on their case,” Myrick, told the judge, and should not be allowed to reargue it.

Seth Barefoot, co-counsel for BREDL, countered that the court’s job is to ensure that the “legislative intent behind the statutes” — CAMA — is achieved. And that, in BREDL’s view excludes areas that had not been previously mined from reclamation, and thus structural fill.

Lassiter chose to delay her ruling on the motion until after today’s arguments. She could announce her ruling within a month.

Therese Vick, research director for BREDL, said she hopes the judge “recognizes this for the farce it is.”

Environment

BREAKING: Judge rules for DEQ in Round 1 of coal ash cleanup appeal

Coal ash excavation (Photo: Duke Energy)

This is a breaking story and has been updated with a statement from Duke Energy. Policy Watch has contacted the NC Department of Environmental Quality for additional details.

State environmental regulators were not wrong in choosing the method of closure — excavation and removal of millions of tons of coal ash — at Duke Energy impoundments, Administrative Law Judge Selina Malherbe has ruled.

 

Duke Energy had contested DEQ’s April 1 decision to require it to excavate all of the coal ash from nine unlined impoundments at its remaining six plants. The ash would then be placed in lined landfills onsite or offsite.

Private lawsuits already have compelled Duke Energy to excavate ash from impoundments at eight of its 14 North Carolina plants.

Duke Energy hasn’t exhausted its arguments in the appeal. However, Malherbe’s ruling swings the legal pendulum toward DEQ.

“I am very pleased with the judge’s ruling.  It confirms that DEQ has the authority to select the method of closure for coal ash impoundments,” said DEQ Secretary Michael Regan in a prepared statement. “DEQ stands by its determination that the best way to protect public health, communities and the environment is to excavate coal ash impoundments across the state. We will continue to defend that decision as this appeal moves forward.”

Malherbe dismissed four other Duke Energy claims:

  • That DEQ erred in its timing of selecting a closure plan before Duke Energy submitted its own, which the utility alleged shortcut the process established in state law;
  • That DEQ was wrong to use a comparative standard rather than the yes-or-no standard review of closure plans;
  • That DEQ also erred in determining that Duke must close all of its impoundments by Dec. 31, 2029.

Duke opposed full excavation of its unlined pits, arguing that the economic and environmental costs of excavation at these sites didnt outweigh the benefits. Bill Norton, a Duke Energy spokesperson, said in April the utility’s own science and engineering show the six remaining sites are safe for long-term storage in unlined impoundments that are capped to help prevent water from entering.

The utility estimates full excavation and dry storage would add $4 billion to $5 billion to the current estimate of $5.6 billion for remediations at its plants in North Carolina and South Carolina.

Duke Energy spokeswoman Paige Sheehan provided this statement:

“While we are disappointed in the ruling on this issue, we will proceed with the appeal, standing firm in our belief that the NCDEQ decision is wrong, not based in science and engineering – and not in the best interest of our customers and communities.

“The state’s decision on basin closure mandates the most extreme option for the lowest-risk basins, ignoring information that clearly shows capping the ash in place would continue to fully protect people and the environment.

“By contrast, excavation would drastically increase the cost to customers and create decades of disruption for communities – with no measurable benefit – compared to safely capping the ash in place.”

Environment

With plans to build a controversial asphalt plant, Radford Quarries files for bankruptcy, equipment is seized

Update: In response to a reader comment, we have posted within the story the email describing the gun incident.

Radford Quarries, a stone mining company with plans to build an asphalt plant near a camp for seriously ill children, has filed for Chapter 11 bankruptcy.

According to the filings, the company has no more than $50,000 in assets while owing between $1 million and $10 million.

Ashe County Line first reported the news of the company’s bankruptcy filing.

Chapter 11 allows the company to continue while reorganizing its finances. However, Radford does operate, it might have to do so without some key equipment. Earlier this week, Caterpillar seized a front loader and a truck. Radford Quarries has filed a motion in court to get them back.

A partial list of creditors includes law firm Poyner Spruill, which successfully defended a related company Appalachian Materials in a legal battle over local permitting of an asphalt plant. If built, the plant would open within a quarter mile of Camp New Hope, which serves children with serious or terminal illnesses.

Radford Quarries owes the law firm more than $243,000.

DJ Cecile Jr. is vice president of Radford Quarries, which has been in business since 1992. Headquartered in Boone, the company mines and sells stone in Ashe, Avery, Watauga and Wilkes Counties.

It also operates a quarry in Johnson County, Tenn.

The company owes several other law firms, machinery companies and the Wilkes County tax collector. However, the creditor list is incomplete; the court filed a notice of deficiency to Radford Quarries yesterday because many documents are missing from the initial bankruptcy filing.

North Carolina is not on the initial list of largest creditors.

Radford Quarries also owes the US Mine Safety and Health Administration $52,000. It’s unclear the source of that debt. The MSHA cited Radford Quarries for four violations in 2017, according to agency records, but they were not considered “serious or substantial.”


State environmental regulators have also repeatedly cited the company for violations. In one instance, after inspectors arrived, Danny Cecile, father of DJ Cecile, “produced a pistol from his pocket,” according to state records, and stated “that the pistol was in case any of the inspectors got ‘out of line.'”