A state environmental commission said Duke Energy and Progress Energy don’t have to clean up or shut down 14 ash pits that collect tons of waste at coal-burning power plants throughout the state.
In a 9-2 ruling Monday, the N.C. Environmental Management Commission said that Duke and Progress ash pits don’t meet the state standard for groundwater contamination. The commission sided with the two utility companies and with the N.C. Department of Environment and Natural Resources.
A number of organizations urged the commission to back the utilities and the agency, including the politically powerful N.C. Chamber of Commerce, the N.C. League of Municipalities and the city of Raleigh.
The electric companies contended that ruling for the environmental organizations would require permanently shutting down some power plants and cause extended outages at others.
The cities and others warned that requiring a cleanup of ash pits also would force multimillion-dollar investments to remediate hog waste lagoons, hazardous waste sites, dry-cleaning solvent sites and underground storage tanks.
“The city owns and operates facilities that could be adversely affected,” Raleigh City Manager Russell Allen wrote to the commission last month.
The four environment groups – Cape Fear River Watch, Sierra Club, Waterkeeper Alliance and Western N.C. Alliance – are considering an appeal. They say the 14 ash pits, including one in Chatham County, should be deemed by state law to exceed state groundwater quality standards for such toxins as arsenic, boron, manganese and selenium.
They say the chemicals have been accumulating for decades, and are leeching into groundwater and spreading. They filed their petition in October, in time for a ruling before the Republican administration of Gov.-elect Pat McCrory takes charge of state environmental policy.
“The upshot is this stuff is hazardous waste in everything but name,” said D.J. Gerken, a senior attorney for the Southern Environmental Law Center in Asheville.
In North Carolina, coal ash pits are exempt from state groundwater standards for up to 500 feet beyond the edge of the slurry pond. The environmentalists challenged that interpretation, saying groundwater standards should apply near the ash pits as well.
Because chemical levels near ash pits are above levels allowed beyond the 500-foot mark, the pits would have been in violation if the Environmental Management Commission had ruled for the advocacy groups.
A favorable ruling would have resolved another pressing issue facing state officials: how to decommission at least seven giant ash pits that have stopped accepting new ash or are being deactivated. The environmentalists were hoping the commission would rule that closed ash pits are covered by the same rules as open and active ones.
Because the state doesn’t have rules for safely closing down ash pits, Duke and Progress are working with regulators on how to dispose of the pits, and their decision is likely to trigger a legal challenge from environmentalists.
Safety oversight of ash pits is left up to state governments; it is not regulated by the U.S. Environmental Protection Agency.
In its filings at the commission, DENR cited a 2009 legal opinion from the N.C. Attorney General defending the current state policy.
That interpretation, by DENR’s Division of Water Quality, “has served the state’s natural resources and citizens well,” the agency wrote. “More troubling is Petitioners’ (environmental organizations’) failure to acknowledge DWQ’s expertise in the administration of the statutes and rules protecting the waters of North Carolina.”