Environmentalist group threatens lawsuit over NC coal ash pollution

jmurawski@newsobserver.comJune 19, 2013 

A Chapel Hill advocacy group is threatening to sue Duke Energy Progress over alleged contamination of public water from coal ash pits, a strategy designed to prompt North Carolina regulators to take legal action again the power company.

The Southern Environmental Law Center said Wednesday it is seeking to block Progress from leaking selenium and other pollutants into Sutton Lake, a public fishing area near Wilmington. The nonprofit law group said that the coal ash storage pits at the utility’s L.V. Sutton Plant expose local fish and birds to a high risk of physical deformity and reproductive failure.

This is the third such legal threat filed by the Southern Environmental Law Center in the past year. The previous two threats resulted in the state’s regulatory agency, the Department of Environment and Natural Resources, filing preemptive lawsuits to stop coal ash contamination of drinking water sources and natural habitats.

The agency’s lawsuits mean that the Southern Environmental Law Center doesn’t have to finance costly litigation against a Fortune 500 corporation, but the nonprofit law center remains involved in the cases. In the most recent legal threat against Progress, the law center represents the Cape Fear Riverkeeper, Sierra Club and Waterkeeper Alliance.

“We only have so much resources, and our clients are nonprofit community groups,” said Frank Holleman, the law center’s lawyer. “What we hope is the state and federal authorities will take appropriate enforcement action. And that Duke, being a major corporate citizen, will take steps to prevent coal ash from polluting our water.”

This time, however, DENR rejects the Southern Environmental Law Center’s allegations. The agency has 60 days to decide whether to file an enforcement action against Progress.

“There is nothing in the files kept on fish tissue tests conducted under the supervision of the N.C. Division of Water Quality that would support the conclusions that selenium pollution has created a ‘high hazard’ for reproductive failure of fish and waterfowl,” said agency spokesman Jamie Kritzer.

“Monitoring results from this year show that the levels of selenium in fish tissues are similar to the baseline levels measured in 1999,” Kritzer said by email. “The baseline fish tissue levels from 1999 are well below the federal and state levels considered to be dangerous for people to consume.”

Duke Energy and Progress Energy also say they are not violating water pollution limits under the federal Clean Water Act. Raleigh-based Progress is a subsidiary of Charlotte-based Duke.

“Duke Energy believes we have diligently complied with all our plants’ water discharge permits, including Sutton Plant’s,” the company said in a statement. “We have no indications that operations at the Sutton Plant have had any adverse impact on neighboring drinking water supplies.”

Previous cases

Coal ash contains wastes – such as arsenic and other heavy metals – that don’t go up smokestacks and don’t get trapped in pollution-control filters. The ash is stored in large impoundments, contained by earth berms, until the water is sufficiently clean to be discharged into local waterways.

However, environmentalists allege that all 14 coal ash sites in North Carolina leach contaminants underground or leak pollutants at the surface. DENR agreed on two occasions this year, the first time state regulators have taken legal action alleging that an electric utility is mishandling its waste ash.

In March, the agency sued Progress in Wake County Superior Court over leaks of thallium, which has been used to make rat poison, into the French Broach River near Asheville; in May the agency sued Duke Energy over discharges into Mountain Island Lake.

The concerns about water contamination from ash residues aren’t new. In 2010 The Division of Inland Fisheries of the N.C. Wildlife Resources Commission issued a “fisheries research summary” paper concluding that consistently low populations of largemouth bass in Sutton Lake could be caused by the lake’s high water temperatures and also by “metals entering the lake from the ash ponds.”

“Commission surveys suggest the abundance for largemouth bass in the lake has declined by 50 percent from 2008 to 2010,” the paper said. “While Sutton Lake has demonstrated the potential to produce a quality fishery in the past, signs of stress continue to be apparent.”

Dry storage

Holleman, the Southern Environment Law Center lawyer, said that the ash pits can be made safer by transferring the waterlogged slurry into dry storage in lined landfills. This is the method used by Duke Energy at its Cliffside coal-burning plant in Rutherford County, near Charlotte.

Some older ash lagoons are being converted. South Carolina Electric & Gas is transferring 2.4 million tons of coal ash from wet lagoons to dry storage in Richland County, S.C., in response to a lawsuit filed last year by the Southern Environmental Law Center and the Catawba Riverkeeper. The South Carolina utility agreed to transfer the ash, a process expected to take eight years to complete, as part of a settlement of the lawsuit.

Progress operates a pair of ash ponds at the Sutton site measuring a total of 110 acres. The Southern Environmental Law Center alleges the selenium pollution has depleted largemouth bass populations and ammonia buildup is causing algae blooms, which clog waterways and deprive fish of oxygen. Selenium is essential to humans and is available as a dietary supplement, but in high concentrations causes deformities in fish and amphibians.

Progress’s aging coal-burning Sutton plant, on the Cape Fear River, is in the process of being shut down and will be replaced this year by a new power plant that runs on natural gas.

Murawski: 919-829-8932

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