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Federal grant jury scheduled to begin review this week
ASHEVILLE — The future of Duke Energy’s 14 coal ash waste sites in North Carolina is not yet clear, but there are growing indications that the ponds at the company’s Asheville plant could be headed for a major clean up.
Seeps from the plant’s two coals ash ponds near the French Broad River and similar seeps at Duke’s Riverbend plant leaking into the Catawba River triggered the initial moves by environmental groups to take action in federal court, which in turn prompted the state to step in and, eventually, negotiate a deal.
Now, with that proposed settlement on hold and a federal grand jury preparing this week to take testimony from nearly two dozen current and former state environmental officials over the handling of coal ash regulation, the resolution of the fight over the Asheville plant looks far more possible.
The original settlement proposed by the state earlier this year fined Duke roughly $99,000 and mandated a study of the problem. A Carolina Public Press review of recent dam inspections found that regulators have not issued any environmental citations or violations at the Duke Asheville facility in recent years, but have found issues to be “monitored.”
French Broad Riverkeeper Hartwell Carson, one of many who criticized the deal the state offered Duke as vastly insufficient, said the company’s most recent proposal, sent in a letter last week to state regulators, is still too vague. But, he added, it goes much further toward a larger clean up than the company had previously proposed.
Carson, who’s done much of the sampling that found concentrations of heavy metals leaking from the ponds into the French Broad, said that, at least at the Asheville site, Duke seems to be headed in the right direction. He’s optimistic, but wary.
“It’s certainly not a negative letter concerning the Asheville plant,” he said, “but I was hoping to see a little more detail about what Duke is committing to.”
In the March 12 letter to Gov. Pat McCrory and John Skvarla, secretary of the N.C. Department of Environment and Natural Resources, Duke CEO Lynn Good laid out the company’s plan for dealing with its coal ash waste.
Good said Duke would continue to move ash from the plant to a lined landfill and plans to either retire the two units at Asheville and a third at its Cliffside plant in Rutherford County or convert them to a dry ash process. If selected the conversion work would take roughly 30-36 months after receiving permits, the letter says.
The letter also says that between now and the end of the year Duke plans an engineering and the development of a set of options for the 14 sites in the state including removal to lined landfills and capping the ponds in place.
In a quick-turnaround response, Skvarla said the four-page letter fell short in reassuring regulators. On Friday, DENR announced plans to reopen and modify wastewater discharge permits at Asheville and two other Duke sites. On Thursday, conservation and progressive action groups gathered in Asheville to call on Gov. Pat McCrory to “come clean” about his ties to Duke Energy, where he worked for 29 years in a variety of management positions.
“Although Duke committed to near-term actions, the response lacked the detail necessary to ensure Duke Energy abides by the commitments outlined in their letter,” Skvarla said Friday. “Reopening these permits allows DENR to ensure that Duke Energy resolves this long-standing issue at these facilities.”
The permit for the Asheville plant is already in the renewal process and DENR’s announcement indicated the agency would incorporate new conditions into the Asheville plant’s permit. Once a draft permit is proposed, the public will have 45 days to comment.
Skvarla’s response was a rare moment of agreement with attorneys at the Southern Environmental Law Center who have sparred with the department over its relationship with Duke and lack of enforcement on the coal ash ponds.
“While the letter offers hints of real promise – including a commitment to convert to dry ash handling or close coal fired units at Duke’s Asheville plant – Duke offers cold comfort to the many other North Carolina communities living with the contamination and hazards of Duke’s unlined coal ash pits,” DJ Gerken, a senior attorney based in SELC’s Asheville office, said in a response to Duke’s letter. “It’s time for Duke to enter into a binding agreement with definite timetables, enforceable by court order, to remove the toxic coal ash at all its coal ash pits away from waterways into dry lined storage.”
The agreement over Duke’s proposal doesn’t mean a truce has broken out between SELC and DENR. Last week, SELC released a series of emails between Duke and DENR officials that they say highlights the cozy relationship between the department and the largest company it regulates. Among other revelations in the emails is evidence that DENR and Duke started working on a settlement before the state announced its involvement in the case.
Carson said that one advantage working toward a solution at the Asheville plant is that ash is already moving off-site to a lined landfill at the Asheville Regional Airport. What will happen to the ponds sitting near the banks of the French Broad is the big question, he said, but with the General Assembly looking at cleanup legislation, DENR sounding more interested in enforcing its rules and public pressure building, there’s reason to be hopeful.
“I feel like we’re doing well on at lot of fronts, at least in Asheville,” he said. But until Duke takes responsibility and commits to a clean up, including removal of the coal ash, he said, it’s far to early to declare victory.
“What I’d like to see is Duke Energy step up to plate and take responsibility without a judge or DENR or the legislature forcing them to, Carson said. “Duke will just not budge.”