NC letter allowing Duke Energy to drain coal ash dumps into rivers earns rebuke from EPA

Federal environmental officials spurred North Carolina regulators to reverse a policy allowing Duke Energy to drain massive amounts of polluted wastewater from its coal ash dumps directly into the state's rivers and lakes, according to documents.

The Southern Environmental Law Center released documents Friday showing that the North Carolina Department of Environment and Natural Resources quietly gave Duke approval on Aug. 28 to start emptying liquids from all of its 33 coal ash dumps across the state through existing drain pipes at the facilities.

The U.S. Environmental Protection Agency responded with a lengthy memo on Sept. 16, expressing concern that Duke's draining would likely violate federal water quality standards. Duke's state wastewater discharge permits require the company to test the water discharged from its pipes for levels of toxic materials twice a year.

"The applicable permits only require monitoring for a limited number of pollutants once every six months," wrote Mark J. Nuhfer, an EPA official at the agency's regional headquarters in Atlanta. "As a result, Duke Energy could draw the ponds down completely without taking a single sample to assess effluent quality, permit compliance, or water-quality impact."

The EPA agrees with the state's goal of draining the dumps, but Nuhfer said the company should be required to provide more information about the potential environmental impacts of releasing such large amounts of wastewater in a short period of time.

Following the EPA's letter, state regulators sent a new letter to Duke on Sept. 19, revoking its earlier approval.

North Carolina's oversight of Duke's coal ash dumps has been under intense scrutiny since a huge Feb. 2 spill at one of the company's facilities turned 70 miles of the Dan River an unnatural shade of battleship gray.

Coal ash ponds work as a primitive water treatment system, allowing the ash generated from burning coal to settle to the bottom as the less contaminated water at the top drains into a nearby body of water. Therefore, the sludge at the bottom of the pond is potentially far more contaminated than the shallower depths. Coal ash contains numerous toxic heavy metals, including lead, arsenic and mercury.

Drew Elliot, spokesman for the state environmental department, said the agency was simply following an Aug. 1 executive order from Gov. Pat McCrory directing it to move ahead with the closure of Duke's ash pits. The state's letter directed Duke to drain the ponds only down to the depth where the ash has settled.

"We have been keeping the public informed throughout our implementation of the governor's executive order to clean up coal ponds as quickly as possible considering the threat they pose to our waterways, especially from catastrophic failure as we saw at Dan River," Elliot said. "Obviously to excavate ash from a pond you must remove the water."

Prior to becoming governor, McCrory worked at Duke Energy for 29 years. The Republican has repeatedly denied his administration has provided any special treatment to his former employer.

However, state legislators in McCrory's own party have openly questioned his handling of the issue, approving legislation in August that creates a new state commission to oversee the closure of Duke's ash dumps. McCrory has threatened to sue over the law because he won't be allowed to appoint a majority of the seats on the nine-member panel, which he claims violates the state Constitution.

In March, state regulators cited Duke for illegally dumping 61 million gallons of contaminated wastewater into the Cape Fear River after an environmental group reported the company was using big pumps to drain one of its coal ash ponds.

Frank Holleman, a senior attorney for the Southern Environmental Law Center, said the state's Aug. 28 letter would have given Duke free rein to dump far larger amounts of contaminated water without public scrutiny.

"Thankfully, EPA has stopped (the state) from disregarding its own permits and from failing to protect North Carolina's rivers and clean water," Holleman said. "This shows once again that North Carolina's citizens cannot count on DENR to protect our communities and clean water."

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