Public can still comment on DEQ’s draft coal ash rules, but EPA proposal threatens to undermine them

EPA Administrator Scott Pruitt: Weakening coal ash rules to save utilities money (Photo: EPA)

Yesterday Policy Watch published the final story in a series about groundwater contamination near Duke Energy coal ash basins and landfills. That piece included an explanation of the EPA’s proposed changes to federal coal ash rules that would weaken current regulations in the name of giving flexibility to the states. This story explains how the EPA’s action could affect North Carolina’s draft coal ash rules, also open for public comment.

When EPA Administrator Scott Pruitt recently proposed empowering states to establish regulations over coal ash ponds and landfills, he didn’t fully unveil his true intentions: That such a change actually would favor the powerful utility industry, not just financially, but politically.

A provision in the WIIN Act, which Congress passed in late 2016, allows states to petition the EPA to establish their own coal ash regulations. But the EPA’s new draft rules strongly encourage states to do so — although they’re still not required — effectively offloading responsibility for regulation, monitoring, enforcement and other duties down the food chain. State programs, Pruitt argued, would save utilities millions of dollars annually.

Duke Energy spokeswoman Erin Culbert said the utility hasn’t conducted any cost estimates on savings from the proposed federal changes. However, Duke does “support the alignment” between state and federal rules.

Much of the utilities’ savings could come from weaker federal rules, which states can adopt. In fact, DEQ has said that its proposed rules would align with and incorporate existing federal regulations. Whether state rules could be strengthened as federal ones are diluted would largely be up to the legislature.

But already, the proposed state rules have loopholes that would not be closed by the EPA.

  • Coal ash landfills can be expanded. The landfill owner does have to apply for a permit amendment if the tons of waste increase by greater than 10 percent; if the landfill boundaries expand from the original site plan (which could mean the landfill could be built higher but not wider); and if the landfill has a new owner.
  • The landfill permittee shall “take all reasonable steps to minimize releases to the environment,” the draft reads, “and shall carry out such measures as are reasonable to prevent adverse impacts on human health or the environment.”

However, “reasonable” is not defined and subject to interpretation.

  • There is no requirement for an environmental justice analysis to determine if communities of color or low-income neighborhoods would be disproportionately affected. In addition, the rules require new or expanded landfills (in width, not height) to establish only a 300-foot buffer between the facilities and property lines for monitoring purposes. That is equivalent to the length of a football field.

New landfills require only a 500-foot buffer between it and existing homes and wells. A 100-foot minimum is required between these landfills and surface waters.

  • Landfill permit holders aren’t required to get approval from local governments to place a facility. Presumably, though, a landfill would have to comply with zoning regulations.


Frank Holleman, senior attorney with the Southern Environmental Law Center, said that nationwide, many state agencies are “coopted, politically influenced or outgunned” by utilities. “Most state agencies aren’t going to make the utilities do something they don’t want to. The irony is, the whole reason there is a federal rule is because the state agencies” — in North Carolina and Tennessee, in particular — “failed us.”

SELC has sued Duke Energy several times over its coal ash disposal practices, often settling out of federal court. SELC has three cases pending, including one over alleged violations of the Clean Water Act.

Years of weak oversight and enforcement of coal ash impoundments during Democratic administrations and legislative leadership, as well as inaction during McCrory’s first year in office, contributed to the Duke Energy’s Dan River spill in 2014.

Holleman said existing federal rules “aren’t the strongest, but it did set some minimum standards and pretty clear triggers if utilities exceeded standards in polluting groundwater, they have stop and clean it up. That’s what Pruitt’s trying to attack and soften and weaken. His technique is to grant DEQ and the utilities ‘flexibility’ in determining when and what action must be taken.”

For example, states could set “risk-based standards,” which can vary by location, for coal ash ponds and landfills. Maximum contaminant levels are a brighter line, founded in science and less vulnerable to interpretation.

Utilities have advantages when states run their own programs. Although they have federal lobbyists and their political action committees donate to congressional campaigns, utilities arguably wield even more influence on the state level. They have unfettered access not only to lawmakers, but DEQ and the governor. This access came to light during the administration of Gov. Pat McCrory — a former Duke Energy employee — when he and state agencies were crafting conflicting health advisory letters for neighbors of coal ash ponds.

Even under Gov. Cooper. Dominion Energy, which, with Duke, is building the Atlantic Coast Pipeline, struck a $57.8 million deal to mitigate economic and environmental damage from the project. (The legislature intervened via a bill, scuttling the agreement.)

States’ coal ash rules must be as stringent as the EPA’s. However, some states, such as North Carolina, are hamstrung by their legislatures from enacting stronger rules. And as state budgets are slashed, many environmental agencies don’t have the budgets to adequately ride herd on their own rules.

Holleman said he supports strengthening coal ash rules under the state’s permitting program; those rules are also up for public comment. But Holleman said he does not believe DEQ has the staff to adequately oversee another permitting process. In public forums about GenX and at legislative meetings, DEQ has emphasized its extensive backlog of permits, as well as the toll funding cuts have taken on staffing levels at the agency.

But DEQ spokesman Jamie Kritzer said that state does have the people to carry out the permitting program. There are already staff that work on the coal ash issue. “Regardless of federal regulations, we’ve been and will continue to enforce state regulations and solid waste landfill regulations.”

Currently, citizens and DEQ can take their case directly to federal court, which rules on the federal rules; SELC has done this repeatedly in its suits against Duke Energy.

But if DEQ assumes responsibility, then all legal challenges, such as those regarding permits and enforcement, would be heard by the Office of Administrative Hearings and the state court system. Only if those avenues are exhausted could citizens proceed to the federal level.

The state’s public comment process on these draft rules has been rocky. DEQ held its first public hearing, in Roxboro, only four days after publishing the 89-page document. Fewer than 10 residents attended, a sharp contrast to the hundreds of people who attended previous meetings in Roxboro about coal ash.

DEQ held two more sessions, but in response to the criticism, the agency held an additional hearing in Gastonia this week and extended the public comment period for two weeks, until next Friday.


In a setback for utilities, FERC denies Atlantic Coast Pipeline request for tree-cutting extension

Marvin Winstead Jr., one of two landowners who have refused to give Atlantic Coast Pipeline crews access to their property to cut trees. (Photo: Lisa Sorg)

Dominion Energy and Duke Energy, co-owners of the Atlantic Coast Pipeline, will miss the spring deadline to begin treecutting in eastern North Carolina because a federal agency has denied their request for an extension.

In a letter dated today, the Federal Energy Regulatory Commission told ACP, LLC that “after a thorough review of your request, we find that it would not offer an equal or greater level of protection.”

FERC granted ACP, LLC — the shell company created by the utilities for the project — a certificate to build the three-state, 600-mile pipeline on several conditions: One was that the utilities would minimize the harm to migratory birds by limiting tree-cutting to certain times of the year.

ACP, LLC had until March 31 to complete the timbering in North Carolina; otherwise, it would have to wait until November, the company’s lawyers told a federal judge earlier this month.

During a federal hearing in Elizabeth City on March 14, ACP, LLC asked Judge Terence Boyle to force two landowners to allow crews to begin timbering on their land, even though the company had yet to pay them for taking part of their property through eminent domain.

The landowners, Marvin Winstead, Jr. of Nash County, and Ron Locke of Halifax County, had not agreed on a price for the utilities to condemn part of their land. Nor had they allowed survey crews on their property, which effectively was delaying the start of a portion of the $6.5 billion project.

During the same hearing, attorneys for the landowners asked Dominion Energy witnesses if they had asked FERC for a deadline extension to cut trees. The witnesses replied that they had not.

It’s hard to know whether ACP, LLC was strategically trying to plead their case in court in a more controlled environment — before a conservative judge appointed by both President Bushes — rather than confront the uncertainty of petitioning FERC. Yet the next day, ACP, LLC did petition FERC for an extension.

Either way, the utilities lost on both counts. Boyle later ruled in favor of Winstead and Locke, saying ACP, LLC had not given them adequate opportunity to negotiate. And now FERC has nixed their request for an extension.


FERC Letter to ACP by Lisa Sorg on Scribd


Low levels of perfluorinated compounds detected in Durham drinking water; new statewide monitoring system proposed

The Duke University women’s rowing team practices at Lake Michie in spring 2016. Lake Michie is a drinking water source for Durham; recent tests show low levels of perfluorinated compounds in the water. (Photo Lisa Sorg)


In early spring, Lake Michie stirs to life, with fishers and the Duke University women’s rowing team taking to the water at dawn. The 480-acre reservoir near Bahama is not only a source of largemouth bass, but it is also a boating destination, and it provides Durham with 30 million to 35 million gallons of drinking water each day.

Testing by the City of Durham’s water department detected low levels of perfluorinated compounds in both Lake Michie and the Little River, another drinking water source, near Treyburn. The levels ranged from 2.4 parts per trillion to 7 ppt.

Treated water from the Brown plant, which flows from the thousands of taps in Durham, also had low concentrations of the compounds — PFOA, PFOS and PFB — ranging from 2.7 ppt to 4.8 ppt. (The Williams plant is offline until later this year for renovations.)

Vicki Westbrook, assistant director of water management, announced the findings last night at a GenX forum sponsored by the Sierra Club and NC Central University School of Law. The city had just received the results within the previous 24 hours.

These are not the same compounds as GenX, which has been found in public drinking water systems in New Hanover and Brunswick counties, and private wells in Bladen, Cumberland and Robeson counties. But PFOA, PFOS and PFBs are cousins to GenX; at high levels, exposure has been linked to cancer, hormone disruption, liver and immune system damage, and thyroid changes. Still, there is little scientific data on the health effects and safe levels of perfluorinated compounds.

The EPA has established a health advisory goal of 70 parts per trillion a combination of PFOS and PFAS, but there is no enforceable regulatory standard for them under the Clean Water Act or the Safe Drinking Water Act. Some states, though, have established their own legal limits for PFOAs. Vermont has set its threshold at 20 ppt for PFOA , while  New Jersey has proposed limits of 14 ppt, according to the Environmental Working Group.

Westbrook said the source of the contamination is unknown. The city has surveyed all of its industrial users, she said, and none reported the use of these compounds. Nor do Lake Michie or Little River receive industrial or wastewater discharges. No biosolids or sludge are currently being applied in northern Durham and southern Person counties, she said. That leaves air emissions and atmospheric deposition as the culprits. The compounds can leave the stacks at an industrial facility, travel on the wind and fall to the ground or into water.

Of the three compounds found in Durham’s water supply, only PFB is still commercially produced. It is used in flame retardants, metal plating, pesticides and water-repellant coatings.

The Town of Cary recently tested its drinking water and found levels of PFB ranging from 3.6 ppt to 3.9 ppt; Durham’s one result was higher, at 4.8 ppt.

Eighteen utilities in Alabama, Georgia, Pennsylvania and Colorado have detected levels of PFB above EPA health advisory goals in their drinking water, according to the Environmental Working Group database.

The EPA has required companies to phase out PFOA, used to make Teflon, and PFOS, an ingredient in Scotchgard. Nonetheless, the compounds remain ubiquitous in the environment, and people can be exposed to them in numerous ways, including microwave popcorn bags.

There was little public awareness of perfluorinated compounds and GenX until last year, when the Star-News of Wilmington reported on findings in the Cape Fear River by NC State University researchers. Since then, state lawmakers have tried but failed — for political reasons — to pass substantive legislation to fund the NC Department of Environmental Quality to tackle the problem of emerging contaminants statewide.

Late last year, Duke University scientists Lee Ferguson and Heather Stapleton found a variety of perfluorinated compounds in Jordan Lake, the drinking water supply for Cary and other southern Wake County communities. Ferguson, who was on the Sierra Club panel, said the only way to “avoid being taken by surprise” by the presence of emerging contaminants is to conduct routine non-targeted monitoring — looking for chemical compounds, both known and unknown, in water.

It requires expensive high-resolution mass spectrometers, as well as staff trained on that equipment, which DEQ does not have. Ferguson said he and other academic scientists have met with DEQ, EPA and several state lawmakers to pitch a bill to fund the NC Emerging Contaminant Observatory. “It’s an early warning alarm system,” Ferguson said, similar to one in Basel, Switzerland, that would detect water contamination in real-time.

“What other perfluorinated chemicials are being used?” Ferguson said. “It’s environmental wack-a-mole.”


Go Backstage: How I reported the complex 540 toll road story. (BTW, deadline is today to comment on project)

Go Backstage is an occasional series explaining to readers the process of reporting and writing stories. The purpose of the series is to help readers understand the nuances of journalism and to add transparency to the process. If you’d like to know how a previous environmental story was reported, and the decisions that went into it, contact me at lisa@ncpolicywatch.com.


Carol Hinske was my first gift from the journalism goddesses. She was sitting in a front porch swing at her mobile home, which meant I didn’t have to intrude by knocking on her door. I had checked the weather forecast, which predicted a unseasonably warm, sunny Sunday afternoon — perfect, I speculated, for finding people in their yards at Blue Skies Mobile Home Park to talk with about how the 540 toll road would upend their lives. Carol Hinske appeared, friendly, open and talkative.

When I begin any story, I literally pull out a blank sheet of paper (I’m old-school) and divide it into two headings: “People” and “Documents/Data”. Both aspects are equally important, but without people, there is no narrative, just a dry college research paper. And without data and documents, there are only anecdotes.

People draw readers into a story (notice I started this one and the original piece with Carol.) People are also essential to my reporting because environmental justice is an important component of my work. Although southern Wake County, part of which is the proposed route for Complete 540, is largely affluent, there are pockets of underserved communities. Blue Skies Mobile Home Park, near Apex, is one of them.

When entering underserved communities, though, I try very hard not to exoticize or romanticize or inadvertently disrespect the residents by casting them as an Other. Yes, the residents of Blue Skies, some of whom are native Spanish speakers, have fewer resources than many people in North Carolina. That makes them vulnerable to external forces beyond their control.

But we share more commonalities: Carol and I, as it turns out, are both from the Midwest. She used to work as a proofreader and a typesetter, skills people needed a long time ago to work at newspapers. With my parents, I lived in a single-wide mobile home (called a “Honeymoon Special” because it was designed for newly married couples) until I was 6, although I was privileged because the trailer had been placed on family land.

Carol declined to be photographed, so I scouted the neighborhood for other people that seemed to capture the spirit of the place. The children in the photo, two Black boys dancing in the street and playing football, were doing what a lot of kids would on a sunny day: kicking around the neighborhood. My friends and I used to do the same.

But Blue Skies’ households composed only about 15 percent of the 210-plus that would be uprooted by the toll road. I needed to widen the scope of the people to include the wealthier residents. I attended two public information sessions and a public hearing — my work entails a lot of meetings — and there I heard from more people. Many of them clearly had means, but were still losing not only part of their life’s investment, but also their sense of place, memories, community connections and identity: most of what makes us intrinsically human. Loss is not a contest.

One of the indelible moments occurred when I gathered with several property owners around a map of the route. One man’s property, he learned right then, was safe. I told him that some folks at Blue Skies, less than a mile away, would be uprooted. He said, “I don’t care about them! I care about me!”

I’m not sure if he intended his remark to sound as callous as it did. I didn’t include that detail in the original story in case it misrepresented his character.

I also interviewed and quoted officials from the NC Department of Transportation, GoTriangle and other officials to include institutional voices in the story.

A forest just west of Blue Skies Mobile Home Park that had been clear-cut by
the owners, presumably since it’s in the path of the proposed toll road. (Photo: Lisa Sorg)

Now for the document part: The toll road’s Final Impact Environmental Statement is 93 pages long, short by these standards. But these documents tend to be extremely dense and they take a while to digest. I read it two or three times over as many days. I had several questions — some that raised more questions — about air quality that I posed to DEQ. I had other questions — again that raised more — that I posed to DOT. I examined bus route schedules, current and proposed, to see if traffic could be reduced through mass transit. I read property records to find out who owned what.

I also read scientific literature about the Dwarf Wedgemussel, an endangered species that lives in Swift Creek, and which could be further imperiled by construction of the toll road. I could not find, in the time available, a Dwarf Wedgemussel expert, so I had to rely on documents.

Environmental reporting is rooted in both people and place, and I always need a “feel” for the landscape before I can write. So I analyzed the route map and highlighted that area on my old-school North Carolina Gazeteer. I drove (in my Prius, of course) the route three times — about 150 miles round-trip in total.  I saw immense housing developments being built in Garner, and ramshackle roadhouses I wish I’d had time to stop by. None of those details made it into the story. To keep the prose lean, a lot of observations wind up on the cutting-room floor.

During my final trip along the route, though, I received my final gift. I pulled to the shoulder off Highway 50 to photograph Swift Creek, home of the Dwarf Wedgemussel. That’s when I saw a bald eagle soaring above the treetops. The experience took my breath away and reminded me that we have so much of the natural world to be grateful for — and so much to lose.





In groundwater wells near the Dan River plant, arsenic is a culprit

A map of sampling locations at the Dan River plant (Map: Duke Energy)

Policy Watch recently reviewed more than 20,000 pages of data and published a story about groundwater contamination in wells around four of Duke Energy’s coal ash ponds. We covered Marshall and Cliffside last Monday and Allen on Friday. Today, we look at the contamination at the Buck and Dan River plants. Later this week, we’ll publish results of the contamination at Sutton and Roxboro.

Levels of arsenic at as much as 15 times the state standards have been found in groundwater wells near the Dan River plant in Eden, according to data filed by Duke Energy. (See the tables below for detailed results.)

The groundwater standard is 10 parts per billion; the highest reading was 158 ppb. Fourteen percent of the samples taken from the wells tested above the state’s groundwater standard.

Duke Energy has monitored the groundwater at its plants, but these results were released as part of the EPA’s coal combustion residuals law. The wells in question are within the plant’s compliance boundary and are not used for drinking.

However, state and federal regulators require monitoring of groundwater because of its potential to travel underground and then enter drinking water supplies and surface water, such as lake and rivers.

Known to cause cancer, arsenic is commonly found in coal ash. It also used in other applications, such as pesticides on cotton plants.

Dan River is the most notorious of Duke Energy’s coal-fired plants. In February 2014, an impoundment breached, sending 39,000 tons  of contaminated wet coal ash into the waterway and 70 miles downstream.

The EPA fined Duke $68 million in criminal fines for violations of the Clean Water Act, and required the utility to pay another $34 million toward environmental projects and land conservation.

Although four years after the spill, tests have shown the surface water no longer has exceedances of arsenic — thanks to dilution — some contaminants may have settled into the riverbed. But it’s inadvisable to excavate the affected portions of the riverbed because it could release more contamination, including PCBs.

A map of groundwater well sampling locations at the Buck plant (Map: Duke Energy)

The primary contaminant at Buck plant near Salisbury is not arsenic, but cobalt. More than half the samples tested above the groundwater standard. A toxic metal, cobalt is widespread in groundwater near coal-fired power plants, but it’s also naturally occurrin. Further analysis will be required to determine the sources of the contamination. Federal health officials have determined that cobalt likely causes cancer.

Dan River    
20 wells, 172 samples
ContaminantMaximum contaminant level, groundwater and drinking waterRange of exceedances, lowest to highest (ppb)Number of exceedances% of samples that exceeded maximum contaminant levels
Antimony1 ppb2.1 – 2.621.1
Arsenic10 ppb11.1 – 1582514.5
Boron700 ppb718 – 8792112.2
Cadmium2 ppb2.3 – 2.621.1
Chromium10 ppb13 – 44.574
Cobalt1 ppb1.1 – 21.77644.1
Thallium0.2 ppb2.310.5
28 wells252 samples
ContaminantMaximum contaminant level, groundwaterRange of exceedances, lowest to highest (ppb)Number of exceedances% of samples that exceeded maximum contaminant levels
Antimony1 ppb1.410.003
Boron700 ppb704 – 20805521.8
Chromium 10 ppb10.4 – 45.120.007
Cobalt1 ppb1.1 – 78.512951.1
Sulfate250 ppm45510.003