CLIFFSIDE — Standing 120 feet tall, the dam at the active coal ash basin for the Rogers Energy Complex, dominates the landscape near the point where Suck Creek flows into the Broad River.

It’s the largest of three coal ash impoundments at the sprawling Duke Energy facility on the border of Cleveland and Rutherford County formerly know as the Cliffside Steam Station, which has been in service since 1940.

As the company develops plans to close its coal ash as basins, the potential that some or all of the millions of tons of ash in that pond and another at the site would remain that close to the river has David Caldwell, a volunteer riverkeeper, worried.

“They’re right there,” Caldwell, who works with the nascent Broad River Alliance, said of the dams while describing a recent trip taking water samples near the plant.

While Duke plans to excavate the smallest and oldest of the three coal ash basins on the site, the company wants to install a cap over the other two and leave them in place, Duke recently confirmed.

“That’s what they’re telling everybody,” Caldwell said of the company. “If things go the way they want …, they’re going to cap the two remaining ponds. The general feeling from the public around here is that those ponds need to be dug up and moved.”

In addition to groundwater contamination of nearby wells, the condition of the dams and the strategy dubbed “cap and close” are heightening concern, Caldwell said.

As he floated past one of the spillways at Rogers, he could see surveyor tags around a handful of seeps from the nearby dam, an indication that there is movement on plans to identify and potentially add the seeps to each site’s pollution discharge permit.

“There are leaks in those ash ponds,” he said. “They’re not permitted so they’re basically illegal. And every day water is running directly into the Broad River from those leaks in the ash ponds.”

Deficiencies and fixes

State regulators have given Duke Energy until the end of the year to fix an array of serious deficiencies identified during inspections of coal ash dams in the wake of the 2014 Dan River spill or face daily fines.

Department of Environmental Quality officials sent Duke notice Aug. 22 that the company has to certify that repairs have been completed on 16 individual dams at nine sites throughout the state. DEQ’s Division of Energy, Minerals and Land Resources, which has jurisdiction over the dams, listed structural deficiencies and repair needs that could compromise the integrity of one or more dams at all nine locations.

Aerial image of Duke Energy’s Rogers plant, located near Cliffside, N.C., in Rutherford and Cleveland counties.

The list includes requirements for new spillways for the two larger coal ash impoundments at Rogers. Combined, the two hold an estimated 7,349,074 tons of coal ash.

DEQ’s Dam Safety Order, which triggers daily fines of $500 per dam for any uncompleted repairs after the deadline, is another layer in the closure process for coal ash basins at all 14 of the company’s current and former coal-burning power plants.

Due to a recent change in the state law on the cleanup of the sites, fixing the dams also has become an essential step in Duke’s plans to limit excavation and removal of coal ash at some sites and instead cover the basins leave the ash in them in place.

The closure process, which began with legislation passed in after the Dan River spill, was modified this year to include a stronger focus on dam safety and providing an alternative drinking water supply to residents near the coal ash sites who rely on well water.

For much of this year, the safety of nearby, private wells and disagreements between regulators over what constitute dangerous levels of contamination has drawn the most concern. But as plans for the sites move forward, the condition of the dams and a controversial plan by DEQ to add seepage from the dams to new federal pollution discharge permits for the sites has started to draw more interest.

How the law changed

The condition of the dams and infrastructure at the coal ash basins will play a critical role in what ultimately happens to the sites. This year, the state modified the 2014 Coal Ash Management Act, passed after the collapse of a pipe at a former Eden generating plant emptied a massive coal ash basin into the Dan River.

The changes to the law were spurred in part by a decision by the state Department of Environmental Quality to classify basins at all 14 sites around the state as intermediate or high risk, a ranking that under the existing language of the Coal Ash Management Act would require that all 33 ash basins be excavated and the coal ash residuals removed. When it issued the classifications, DEQ officials also appealed for more time from the legislature to work on the classifications.

While the requirement for universal excavation and removal was hailed as victory by environmental groups, Duke Energy officials quickly objected to DEQ’s classification, insisting that some sites would not require removal, but should be covered with a cap and left in place.

DEQ’s decision and Duke’s objection came as legislators were already preparing some modifications to the Coal Ash Management Act as a result of a court ruling that sided with a challenge by Gov. Pat McCrory’s administration to a section of the act that established an oversight commission with a majority of legislative appointees. McCrory, joined by two previous governors, sued and won, claiming that the commission violated the state constitution’s separation of powers provision.

After a fight over how to modify the Coal Ash Management Act, the legislature ultimately passed House Bill 630, which shifted some of the timelines for closing the sites and created an option for changing the classification of a site low risk, which could allow for a cap and close option.

That option doesn’t apply to all the sites. Asheville, Sutton and Riverbend, the three initial sites challenged in court, plus the Dan River site, are specifically designated in the original coal ash law as high risk and high priority for cleanup. In addition, Duke recently added the H.F. Lee Plant near Goldsboro, Cape Fear Plant in Chatham County, and Weatherspoon Plant in Lumberton to the list of sites that will be excavated.

But seven other locations that are currently slated for full cleanup, including Rogers, could see a change in classification and closure plans that would permit Duke to leave the coal ash where it is today.

Mike Rusher, communications director for DEQ, said the department issued the order to push ahead on getting the dam repairs and modifications.

“The goal for that is just to hold Duke accountable and make sure all those dam safety issues are repaired,” Rusher said in an interview.

Rusher said once the repairs are confirmed completed, the company can start working on decommissioning the dams as part of closure plans for the sites. He said that under this year’s revision to the Coal Ash Management Act impoundments at the seven sites not already slated for excavation and removal would be automatically reclassified to low risk if they meet the alternative water supply and dam safety requirements.

“If a site is currently intermediate risk, they have until July 1, 2018 to move to low if those other considerations are met,” he said.

Duke must submit closure plans for all high risk sites to DEQ by the end of this year, with plans for intermediate and low risk sites submitted by December 31, 2019.

Although reclassification to low risk would allow Duke to propose a cap and closure plan for sites, each plan would still have to be approved by DEQ, Rusher said.

“We’re going to have to see that that is an environmentally protective option for that specific site,” Rusher said. DEQ would conduct site reviews including examination of water tables, Rusher said. In each case, the department could still require excavation if the cap and close plan is deemed  inadequate. Each plan, he said, will be submitted for public comment prior to any decision.

Frank Holleman, the lead attorney on coal ash related cases for the Southern Environmental Law Center, said the change in the law this year was a significant step backward in protection, providing a way for the ash to remain in place despite acknowledged migration of coal ash constituents to groundwater and surface waters.

“This is a gutting of the 2014 Coal Ash Management Act purely to benefit Duke Energy,” he said. “It basically has eliminated the consideration of damage to natural resources.”

Holleman called the changes a way for the company to legally continue polluting water resources: “What it says is if you work around your pollution by providing an alternate drinking water supply to people who rely on the state’s natural resources, on groundwater, and if you fix your dams to reduce the risk of these sites collapsing into the river, we’ll give you a pass on this and allow you pollute the rivers and the groundwater without  any consideration.”

While Duke officials have acknowledged the urgency of repairs, the company continues to maintain that its dams are safe. Earlier this month, the company sent DEQ officials a detailed response outlining the progress of work at the dams. The company also noted that the work on the dams is in part to initiate a change in the classification.

“Duke Energy identified and initiated these projects to ensure ash basin dams continue to be well maintained through basin closure,” Jeff Brooks, a spokesperson for Duke Energy wrote in response to questions from Carolina Public Press. “The majority of these projects are complete, and the remaining few will conclude over the coming months. None of these issues poses a concern for dam safety.

“Ash basin dams are safe and are routinely inspected, monitored and maintained. We are working to complete these projects as part of the state’s requirements to qualify for low classifications that maintain a broad range of safe closure options.”

Fixes and the future

The recent Dam Safety Order from the Division of Energy, Minerals and Land Resources requires Duke to replace spillways for the two larger coal ash basins and repair corroded infrastructure that allows the top layer of water to be discharged. As part of the state and federal response to the Dan River spill all coal ash basin dams were re-inspected and required to obtain a new pollution discharge permit.

In late February 2014, less than a month after the Dan River spill, DEQ sent Duke notice that its generating station, then still known as Cliffside, was in violation of state rules because it was operating outside of its discharge permit.

Dam safety inspections in early March of that year found several seeps and numerous problems at Cliffside and ordered repairs.

Last month’s Dam Safety Order gives the company until December 31 to make the required repairs.

In a response to the state, Duke officials said some of the major repairs should be completed by the end of September. Others are expected to be finished by mid-November.

In addition to the repairs, the company still has to obtain a new a federal pollution discharge permit for the facility. These permits, which are required at all 14 sites, are critical to plans to remove the water from ponds ahead of decommissioning.

SELC’s Holleman said it appears that the state is ready to move ahead with a controversial plan that would include  leaks and seeps near the bottom of the dams and not just the infrastructure that drains the topmost layer of water.

“These seeps are flows of polluted water,” he said. “They’re trying to turn streams of North Carolina into wastewater dumps. The state is trying to give Duke amnesty and immunity from polluting these streams.”

DEQ spokesperson Rusher said the move to include the seeps in the permits allows DEQ to “monitor all the discharges from the ponds.”

He said permitting seeps is effectively a temporary process even at sites that aren’t going to be excavated.

“After the closure process you’re going to have a big membrane over the top, so there’s no entry of water from the top to seep out,” he said.

Caldwell, the riverkeeper, said permitting the seeps from the ponds doesn’t make sense.

“That’s kind of ridiculous,” he said. “I mean, they can’t regulate them. They’re leaks. How to do you regulate a leak. They’re going to keep leaking.”

Asheville City Council member Julie Mayfield, co-director of Mountain True, which has been working with the Broad River Alliance, said the proposal for the plant at Cliffside should include the same kind of removal to safer storage as Duke’s plant in Asheville. The current plan, she said, falls short of what’s necessary to protect the environment.

“We think that the people around Cliffside deserve the same level of protection as has been afforded in other places and that means excavation,” she said.

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Kirk Ross

Based in the Triangle, Kirk Ross is the capital bureau chief for Carolina Public Press. Contact him at kross@carolinapublicpress.org.

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