Winston-Salem Journal: “Contamination lawsuits push Duke Energy to address pollution”


WNCA’s Riverkeepers Donna Lisenby and Hartwell Carson take water samples at the Asheville Power Plant on the French Broad River. Samples turned up high levels of various heavy metals being discharged directly into the French Broad River.

Posted: Saturday, November 2, 2013 9:02 pm

Bertrand M. Gutierrez/Winston-Salem Journal

Look no further than the Carolina coast to see what kind of damage a coal-fired power plant can do to underground sources of drinking water.

Massive groundwater contamination is rendering unusable the private wells of about 400 people in a Wilmington-area community known as Flemington. A potentially toxic plume of arsenic and other chemicals is leaking underground from a dump site at the Sutton Power Plant owned by Duke Energy, and it is heading toward those wells.

A corporate mea culpa of sorts is on its way, too.

Erin Culbert, a Duke Energy spokeswoman, confirmed last week that tests from groundwater wells at the power plant showed that contaminated groundwater was moving toward the Flemington community, about a half-mile away.

So Duke Energy has agreed to pay most of a $2.25 million project to run public water lines to Flemington, the Cape Fear Public Utility Authority announced Oct. 9.

Duke agreed to “proactively invest more than $1.5 million to prevent a potential issue,” Culbert said. Any possible costs between $1.5 million and $2.25 would be split evenly between Duke and the Cape Fear Public Utility Authority, according to Mike McGill, a spokesman for the authority.

Environmental groups saw the threat of contamination for years.

But the power plant’s main dump site — known as an ash basin — is not regulated by the federal government; a federal judge recently ordered the U.S. Environmental Protection Agency to set rules on coal ash regulation. And monitors with the N.C. Department of Environment and Natural Resources did little to prevent the problem, environmental groups say. Duke Energy was given wide leeway to monitor itself, environmental groups say.

It was the threat of legal action from an outside group that got Duke Energy to act, they say.

On June 9, four months before the Cape Fear announcement, the nonprofit Southern Environmental Law Center gave notice that it planned to sue Duke Energy for the groundwater problems caused by the Sutton plant. And on Sept. 13, just weeks before the Cape Fear announcement came out, the SELC followed through.

The SELC, acting on behalf of Cape Fear River Watch, Sierra Club and Waterkeeper Alliance, filed a federal lawsuit under the Clean Water Act against Duke for groundwater contamination, threatening the Flemington community’s drinking water wells and polluting Sutton Lake.

So far, wells in Flemington are not contaminated.

But so high is the threat to the safety of well water in the area that Duke not only agreed to pay for most of the project, but also requested that the Cape Fear authority never make use of 17 square miles of groundwater near the power plant’s dump site, said Frank Holleman, senior attorney for the Southern Environmental Law Center.

Duke Energy probably would not have moved to foot most of the $2.25 million bill had the lawsuit not been filed, according to Kemp Burdette, the Cape Fear riverkeeper.

“The threat has been there for years, really decades. Action came only after SELC filed on our behalf,” he said.

Holleman shared Burdette’s view, saying that the Cape Fear Public Utility Authority “began negotiating this agreement with Duke after we publicized the pollution and began our legal activities.”

Asked how state regulators could let the plume of contaminated groundwater threaten the Flemington community, Jamie Kritzer, a spokesman for the N.C. Department of Environment and Natural Resources, declined to comment, citing pending legal action that the state filed last summer against all of Duke Energy’s coal power plants. DENR filed suit after the SELC threatened to do the same.

Allegations in the lawsuit include groundwater contamination at all 14 of the company’s coal power plants statewide.

The SELC’s legal push likely prompted the state of North Carolina to sue Duke Energy, said Kelly Martin, a senior campaign representative for the Sierra Club’s Beyond Coal Campaign.

“These actions have brought increased scrutiny on the utility. And in the case of the Sutton coal plant, Duke has acknowledged that a toxic plume of arsenic and other chemicals leaching into the groundwater is dangerously close to drinking wells near Wilmington.

“But the question remains unanswered: When will Duke clean up the toxic coal ash that is polluting the water?” she said.

Ponds, lagoons hold pollutants

Duke Energy is the largest electric power holding company in the United States, according to the company’s website, with about 7.2 million U.S. customers and about 57,700 megawatts of electric-generating capacity in the Carolinas, the Midwest and Florida. And it has natural-gas distribution services in Ohio and Kentucky.

At its coal power plants in North Carolina, Duke Energy has allowed particles in coal-combustion waste to leak into groundwater under the earth’s surface at levels that exceed state-mandated limits, the state’s lawsuits say. Common waste particles include arsenic, boron, cadmium, chloride, chromium, iron, lead, manganese and sulfate.

Coal waste — if not managed properly — causes contamination.

Some power plants use coal to churn turbines, and the waste from the spent coal has to go somewhere.

Smokestacks release some of it into the air. The Belews Creek Steam Station in southeastern Stokes County, for example, was among the top producers of greenhouse gases in the U.S. and second-largest in North Carolina, according to its emissions reports to the EPA.

The rest of the spent coal goes in the ground, in landfills and ash basins, also known as ash ponds or ash lagoons.

In North Carolina, ash basins are not lined. They are holes in the ground that, environmental groups say, are woefully inadequate containers for the thick brew of heavy-metal particles. When landfills and ash basins fail to keep in the waste, particles seep into the groundwater.

And the groundwater moves from one place to another underground, as is the case at the Sutton plant.

Eventually, a private well may suck up the contaminated water. Or, sometimes, the particles are discharged into rivers and lakes.

‘Changed their tune’

The state lawsuits against Duke filed last summer contain a long list of groundwater contamination problems. But before the lawsuits were filed, North Carolina did not have a groundwater problem — if notices of violation can be used as any indication.

Duke Energy did not get notices of violation for hundreds of results from test wells near ash basins showing that heavy-metal particles in the groundwater exceeded state limits, said Donna Lisenby, Global Coal Campaign Coordinator for the Waterkeeper Alliance Inc., a nonprofit organization started in 1999 by Robert F. Kennedy Jr. For years, DENR would not enforce the law, she said. The regulatory agency refused to issue violations or fines.

“DENR only changed their tune in 2013 after the Waterkeepers (through the SELC) filed our notices of intent to sue under the Clean Water Act for Asheville, Riverbend and Sutton,” Lisenby said.

While Kritzer, the DENR spokesman, declined to answer how the state regulatory agency could let groundwater contamination affect wells near Flemington, he responded when told that environmental groups were saying that DENR refused to issue notices of violation for years and did little to prevent the problem that is now the subject of the state’s lawsuit.

He said that DENR takes issues that could affect public health and the environment seriously. For that reason, he said, the administration has filed lawsuits against the utility for violations of groundwater standards.

“As the … complaints stipulate, the utility’s permit violations, without assessing the problem and taking corrective action, pose a serious danger to the health, safety and welfare of the people of the state of North Carolina and serious harm to the water resources of the state,” Kritzer said.

59 days

If the state deserves credit for taking legal action, it may also deserve scrutiny for dragging its feet, according to Holleman. State officials waited until the 11th hour:

– Jan. 24: The SELC sent a 60-day notice to DENR and Duke Energy, warning them of the SELC’s plans to file a lawsuit against Duke for its coal ash pollution at its site near Asheville.

– March 22: On the 59th day, DENR brought its first enforcement action against Duke, just for the Asheville facility.

– March 26: The SELC sent another 60-day notice that it planned to file a lawsuit for coal ash pollution at Mountain Island Lake on the Catawba River, the drinking water reservoir for the Charlotte metropolitan area.

– May 24: Again, on the last day before the notice period ended, DENR brought its first enforcement action against Duke for coal ash pollution at Mountain Island Lake.

– June 19: The SELC sent a 60-day notice to file suit against Duke for its coal ash pollution at the Sutton plant on the Cape Fear River near Wilmington.

– Aug. 11: At a hearing on the Asheville and Charlotte cases, Holleman said, Duke Energy’s attorney expressed concern that SELC might bring enforcement proceedings at all 14 Duke coal ash sites in North Carolina.

– Aug. 16: On the last day before the 60-day period in the Sutton case ended, DENR filed two enforcement actions dealing with all 12 remaining Duke coal ash sites in the state, including Sutton.

For the first time, according to Holleman, DENR said under oath that Duke is violating the law because of its coal ash pollution and that Duke’s coal ash pollution is a serious threat to public health, safety, and welfare and to the water resources of North Carolina.

“The bottom line is they (DENR) denied that the violations existed and abysmally failed to enforce the law for years,” Lisenby said. “They would likely still be denying the problem and failing to enforce the law if the legal action initiated by the Waterkeepers (through the SELC) hadn’t prompted them to file their own litigation in a blatant attempt to shield Duke from facing us in federal court.”

Hurricane vs. tornado

Just as the contaminated groundwater has threatened private wells near Wilmington, the same will happen to private wells near the Belews Creek Steam Station, environmental groups warn. The power plant sits in southeastern Stokes County, about 2 miles east of Walnut Cove, 15 miles northeast of downtown Winston-Salem and about 20 miles northwest of downtown Greensboro.

“It is not a question of whether it will contaminate drinking water wells near the plant or Belews Lake, but when,” Lisenby said.

The Belews power plant was included among 14 in the state’s lawsuit against Duke.

Among the groundwater problems shown from tests at groundwater wells on site, levels of chromium, iron and manganese exceed state standards, according to the lawsuit.

The Belews Creek power plant sprawls over a larger area than that covered by Sutton. Its impact on the surrounding community could be potentially larger because it is not scheduled to be shut down or converted to less toxic natural gas, as is the case for Sutton. It will continue to add tons of heavy metal particles to its ash ponds and landfills for decades.

“Belews is like a hurricane, while Sutton is more like a tornado,” Lisenby said.

Near Asheville, one homeowner’s well is unusable because it has been contaminated by another Duke power plant.

Tests showed that the home’s private well contains unsafe levels of contamination, according to the N.C. Department of Natural Resources. The home is between the French Broad River and Duke Energy Progress’ coal ash dump site for its Asheville plant in southern Buncombe County. Other residential wells tested in the area remain safe, or within state and federal drinking and groundwater standards.

On Oct. 23, state environmental officials said they would make Duke Energy provide residents of the home with alternative drinking water by Nov. 15.

“This is just the beginning,” Holleman said.

Vigilance by outside groups will be key in preventing more episodes of contamination, said Kara Dodson, a field coordinator for Appalachian Voices in Boone.

For that reason, Appalachian Voices is working with Duke University to test private wells near the Belews Creek power plant in Stokes County. So far, 23 wells are undergoing tests, though Appalachian Voices said it was too early to share results.

The broader goal is to close ash basins and move toward dry landfills with liners.

“Most people don’t know where their water comes from,” Dodson said. “Across the U.S., pollution is moving off plant sites and getting traced into people’s drinking water. That’s why we’re testing well water.”

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