Duke Energy-Progress has proposed replacing its coal-fired power plant on Asheville's Lake Julian, seen here, with a complex of natural-gas plants. Frank Taylor / Carolina Public Press

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In the forecast: lawsuits.

That’s the likely outcome regardless of what the North Carolina Department of Environmental Quality decides on final cleanup priority categories for coal-ash basins, which is due by Wednesday, May 18.

Spokespeople from basin owner Duke Energy and the Southern Environmental Law Center talked with Carolina Public Press earlier this month about their desired outcomes. Both indicated an expectation that their employers would consider legal action if DEQ doesn’t give them what they want. Since what each side wants is the opposite of what the other side seeks, litigation seems unavoidable.

DEQ should be keenly aware of Duke’s wishes in particular. The company submitted a lengthy report to the state a few weeks ago, with analysis of why each outcome the company desires is the right one for DEQ to choose.

The Coal Ash Management Act of 2014 set the present situation in motion in response to a leak at Duke’s Dan River coal-ash storage facility. The General Assembly tasked DEQ with determining whether each basin was a high, intermediate or low priority for cleanup.

Sites that are high priorities must be cleaned up very quickly. Intermediate sites will also face the removal of coal ash, though in a more expedited manner. Low-priority sites will give Duke additional time.

The degree of urgency depends on several factors. The stability and location of the basins, their effect on nearby surface water and their effect on nearby groundwater can all be important.

The situation and whether the parties can agree on the appropriate level of urgency varies by the conditions at each site. Two very different situations exist at Duke’s two unlined coal-ash systems in Western North Carolina, in Rutherford and Buncombe counties.

Rutherford site

Duke’s Cliffside plant sits close to the line between Cleveland and Rutherford counties. Coal-ash excavation is already underway at several of the unlined basins. But the fate of two remains undetermined and has provoked controversy.

DEQ proposed earlier this year that the basins be designated as low-to-intermediate in priority. Nearby residents and environmental advocates have been outspoken in their objection to such an arrangement, since it would seem to invent a category. But Duke officials recently told CPP that they also object to the proposal.

That’s where agreement ends. Environmental groups and concerned residents who spoke at a public hearing on the situation in March at the nearby community college campus in Spindale, said the basins should be a high rating for cleanup. Duke wants them to be low.

DEQ found that the sites require some additional work to improve current conditions, which Duke has indicated it plans to do. The state made its proposals based on how the sites will function once those improvements are in place, a move that environmental groups criticized as assuming too much without the work first being done.

Duke has submitted analysis on the flow of groundwater at Cliffside, indicating that basins are downslope from nearby wells, and therefore pose no threat to contaminate those.

But the Southern Environmental Law Center previously told CPP that it objects to aspects of the model Duke used to make this finding. First, underground flows don’t always follow the direction of the slope of the surface terrain. Rock formations, well pumps, wells at differing elevations and other factors could lead to contrary flow, they said. They also said Duke’s model created artificial and arbitrary boundaries around small areas being analyzed and then assumed zero flow across those boundaries without any scientific basis.

Duke’s spokespeople have told CPP that they stand by the work of company scientists.

“Groundwater elevations and flow have to be considered in three dimensions and within the accepted laws of science,” said Danielle Peoples, a Duke spokesperson for Cliffside. “In addition to physical measurements of groundwater elevations that indicate flow directions, the groundwater test results show higher concentrations of constituents down-gradient of the ash basins, which is away from the direction of neighbor.”

Even so, some environmental groups have analyzed similar studies Duke conducted for other North Carolina plants and accused the company of “cherry-picking” data. Xavier Boatright, environmental justice organizer and researcher for Clean Water for North Carolina, pointed to independent analysis that looked at the data differently for Duke’s Allen site and found evidence that groundwater was flowing toward private wells.

The issue of flow is important for Cliffside neighbors, some of whom initially received “do not drink” warnings due to contaminants that Duke says can’t have come from its basins.

Duke has complained that the state failed to study the background levels of materials in groundwater before releasing the warnings.

“Low amounts of these substances also occur in municipal water supplies across the nation at levels that would have exceeded the DHHS health screening levels and yet still meet federal drinking water standards,” Peoples said.

Despite these discussions, Duke isn’t necessarily opposed to excavating the coal-ash from the two remaining basins eventually. The company wants the state to keep the company’s options open at Cliffside and several other sites across North Carolina, Peoples said. A low priority level would give the company until 2029 to complete work.

“For the low-risk classification, we would have to start well before the 2029 deadline, so it doesn’t mean we will wait until then to start closure,” Peoples wrote in an email Monday.

Although Duke could eventually decide to excavate coal ash there, more time would give the company the opportunity to explore alternatives, possibly including emerging technologies in recycling, Peoples said. At the moment, Duke favors being allowed to close and cap the existing basin.

“We would not be opposed to excavating if the science says that is warranted,” Peoples said. “If the data and science show we can safely cap in place, that is the preference,”

But capping in place would be totally unacceptable to environmental advocates who think the basin poses a threat to groundwater in the area, as well as surface water during heavy-rain events.

Even so, Peoples pointed to studies by other utilities, including the Tennessee Valley Authority, which found that excavating coal ash at some sites had increased the risk of contamination.

However, environmental advocates questioned whether that finding really worked to Duke’s advantage.

“Yes, if the excavation is done improperly that could certainly threaten groundwater and surface water, and it looks as though TVA claims that rain cycles, soil and wind erosion over the years that a basin is excavated could contribute to leaching into groundwater and surface water,” Boatright said.

“We haven’t reviewed those claims in detail, but know that the existence of unlined ash basins is a certain threat to groundwater, as all of Duke’s unlined facilities are known to be leaking. Capping in place does not solve the problem of unlined storage, and Duke Energy has stated that the cap-in-place method does not prevent all possible water from entering the impoundment.

Boatright also expressed concern that Duke’s comments to DEQ indicated a willingness to monitor its capped facilities for just 30 years, which he called “insufficient.”

“Leaching could still occur — perhaps even more quickly,” Boatright said.

Asheville site

At the Asheville site, the basin overlooks Interstate 26 and the French Broad River. A collapse of that basin would be catastrophic. Everyone seems to agree that the site should be a high priority.

Because of that, the points of disagreement may be less substantial than elsewhere, but can nevertheless be instructive. Some residents near the Asheville basin have said publicly that they see high levels of unexplained illness, including cancer, among people and animals who drink well water in the area.

This is one of many areas where state health officials issued “do not drink” orders because of elevated chemicals in wells.

Most of those orders statewide were rescinded in March, when the Department of Health and Human Services recognized that no clear standards existed for acceptable levels of some contaminants in groundwater. But for other contaminants there were clear standards and those “do not drink” orders have remained in place. That includes wells in Arden where excessive levels of iron and thallium were identified.

The same type of flow analysis that’s proven controversial at the Cliffside plant hasn’t been for Asheville. Duke hasn’t necessarily said it’s responsible to what’s showing up in wells. But the SELC has pointed out that thallium is not a naturally occurring contaminant in the area, so the coal ash is the logical source of the substance.

Transporting ash

Another factor at the Asheville site is that Duke has responded to its high priority by trucking some of the waste to a lined basin in Rutherford County as well as to facilities in other states. Ironically, Duke warns that if the two basins at Rutherford get high priority status, the company may not have the capacity to handle those quickly onsite and would then have to truck that waste elsewhere.

Transporting ash between sites has raise objections from both activists and residents, several of whom voiced concern at a public hearing in Asheville in March.

Boatright told CPP that his organization advocates for minimizing distance hauling of ash. He warns of risks created during movement.

“According to our research, the Cliffside lined landfill is only in Phase 1 of five total phases of this landfill,” he said.

“This Phase 1 of the landfill already receives 7,000 tons of ash a week, 67 trucks a day with a truck being loaded about every 10 minutes for Asheville… If Duke says the landfill has inadequate capacity for Cliffside coal-ash excavation, then what are the long-term plans for Phases 2-5 of the Cliffside landfill and why do they not include the coal ash already onsite?

Legal complications

Under the Coal Ash Management Act, the state Coal Ash Management Commission is supposed to give final approval to the DEQ recommendations due out this week.

But the commission doesn’t currently exist. The state Supreme Court agreed with Gov. Pat McCrory that the General Assembly overstepped its authority by creating a commission that would be appointed by legislators by engage in activity that was normally a function of the state’s executive branch of government.

They may not agree on many of the related issues, but several recent governors from both parties signed on to support McCrory in the case and protect the authority of the governor’s office.

That finding has left a void, with no other body to fulfill the statutory obligations of the commission. And it could be one of several legal headaches if the parties, as threatened, file lawsuits to block DEQ’s recommendations at specific sites from taking effect.

Rep. Chuck McGrady, R-Henderson, has proposed reconstituting the commission with a makeup that wouldn’t face the same constitutional objections it did previously. The measure has been the subject of discussions with the governor and may be presented in House committee this week.

Even if legislators and the governor move quickly to set up a new commission, its effect on the basin cleanup process that’s already in motion remains unclear.

Cost questions

One of the questions raised in Duke’s submission to DEQ is whether it would be fair to the company’s North Carolina companies to force a rapid cleanup, which hasn’t been required in many other states.

But raising that concern involves a couple of assumptions about what is likely to happen. Duke would have to apply to the state to pass on cleanup costs to customers. And the utility commission would have to approve it.

Peoples told CPP that the company could be expected to pursue such an application.

Some outside observers have argued that cleanup costs instead should be taken out of Duke Energy executive pay or as a reduction in the company’s ample profits, reminding shareholders that company actions affecting the environment come at a cost.

Health risk

Underlying much of the debate over coal ash basins is questions about how harmful the substances found within the waste is to public health if it gets in to the water supply, either into surface water as the result of runoff, or into groundwater and wells as the result of leaking from unlined storage.

Many of the substances in question are known toxins, but toxicity depends on the level of concentration over time. Iron is a necessary substance for life, but at high levels is dangerous. Arsenic is a legendary poison, but at low levels may be harmless.

Residents with wells located near both of Duke’s WNC coal-ash sites have reported elevated levels of illness, including cancer, in both people and animals. But statistically, such claims can be difficult to authenticate.

The long chain of dots between coal ash basins and clusters of sick residents would require connection at each point to result in proof. Are people sick in abnormal numbers? Is that sickness caused by contaminants in their water? Did those contaminants come from Duke-Energy’s coal-ash storage?

One of the challenges for public health officials has been the lack of clear federal guidance on appropriate levels of some substances in groundwater. Chromium Six, or hexavalent chromium, was made infamous by its portrayal in the film Erin Brokovich. But despite the portrayal there and clear evidence that inhaling the substance leads to cancer, scientists and public health officials remain somewhat divided about its impact on liquid consumption and how much is safe.

Several sources have told CPP that the federal Environmental Protection Agency is expected to implement minimum safe level standards for chromium six later this year. But at the moment there are no such standards.

A proposal currently before the General Assembly would prevent state agencies from issuing new “do not drink” orders for substances when there are no state or federal minimum safe level standards in place, even for something like chromium six that’s been tied to illness.

A little-known N.C. Central Cancer Registry study of cancer rates near coal ash sites that CPP reported last month found inconclusive results that downplayed the probability of any risk.

But one North Carolina epidemiologist has recently gone on the record about the shortcomings of that.

Steve Wing, a School of Public Health professor at the University of North Carolina at Chapel Hill, talked with the Institute for Southern Studies recently about his own findings on the matter, in contrast with those from the Cancer Registry.

“This ‘research’ from the state is a typical smoke screen,” Wing told ISS. But the study was critically flawed, he said, by including the population of people in nearby areas with no actual pathway to the groundwater or other source of contamination.

“Of course the vast majority of people in ‘exposed’ counties are not exposed to coal ash,” Wing wrote in an email to ISS. “Real studies would assess air, water and possibly food pathways, establish who really has an uptake of contaminants and compare these groups to people who aren’t exposed. That kind of work is expensive and beyond the capacity of the state. So they do these formulaic comparisons and declare no further research is needed.”

Editor’s note: This article was updated a few hours after initial publication to clarify several points addressed by sources once it appeared online.

Frank Taylor

Frank Taylor is the managing editor of Carolina Public Press. Contact him at ftaylor@carolinapublicpress.org.

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