DENR says it would support clarifying coal-ash groundwater pollution law

cjarvis@newsobserver.comMarch 28, 2014 

  • Cape Fear dam crack

    On Friday, the state Department of Environment and Natural Resources issued a notice of deficiency to Duke Energy over the crack that developed in an earthen dam on a coal-ash pond at the Cape Fear plant in Chatham County. The notice requires Duke to submit comprehensive engineering reports and plans by April 7. The action by the state acknowledges that the company has repaired the crack, which was 4 to 5 inches wide and 35 feet long. The company could be fined if it doesn’t meet the deadline.

— The state environmental agency on Friday said it would support clarifying a 2013 law, if necessary, to settle a dispute over just what the groundwater pollution legislation requires.

The law is at the heart of a legal action pitting environmentalists against regulators and Duke Energy over the enforcement of laws meant to protect water quality threatened by coal ash ponds.

The complex groundwater section of a catch-all bill passed in the final hours of the General Assembly’s session in July is difficult to decipher. One issue is whether the new law expanded the size of the “compliance boundary” around coal-ash impoundments, within which pollution doesn’t have to be cleaned up.

The bill’s sponsors last year – and now John Skvarla, secretary of the N.C. Department of Environment and Natural Resources – insist the law didn’t change the boundary requirement. Skvarla says the law simply codified what was already in practice under a rule interpreted by the state Environmental Management Commission, which adopts rules to protect the air and water.

On Friday, seven environmental advocacy groups sent a letter to Skvarla asking him to correct an “inaccurate and misleading” letter to the editor of The News & Observer published Tuesday where he made that point.

The groups point out that putting that interpretation of a rule into law did, in fact, change the law. Previously, the Environmental Management Commission relied on a rule that set the compliance boundary for older coal ash ponds at 500 feet or the property line, whichever was closer to the pollution source, and 250 feet or 50 feet from the property line for a newer facility. If pollution gets outside the boundary the fear is that it will contaminate rivers and other water.

Then in 2009, on advice from the attorney general’s office, the commission extended the compliance boundary to a facility’s property line. That interpretation was put into the 2013 bill at Duke Energy’s request.

Since the new law didn’t change the way the state has been employing the compliance boundary requirement over the past four years, Skvarla reasoned, it wasn’t accurate to say that the law extended the line for groundwater violations.

“This is incorrect,” the environmentalists’ letter says. “The legislation significantly relaxed the previous standard.”

Signing the letter are the N.C. Conservation Network, Cape Fear Riverkeeper, Cape Fear River Watch, Western North Carolina Alliance, Waterkeeper Alliance, Neuse Riverkeeper Foundation and Southern Alliance for Clean Energy.

Drew Elliot, a spokesman for DENR, said Friday that the department didn’t think at the time that the wording in the bill changed the current law, which is why the agency didn’t take a position on it. He said it appears there is an honest dispute.

“The bill language is certainly not clear,” Elliot said. “We stand by our position it didn’t change anything. If it did, then that was not our intent. It was not legislative intent, either. We support a statutory change to make that clearer.”

But D.J. Gerken, an attorney with the Southern Environmental Law Center, says there is more at stake than semantics. The legal center is embroiled in contentious legal issues with DENR and Duke Energy over coal ash regulation.

The 2009 attorney general’s advice concluded that utilities didn’t have to clean up or stop the source of pollution within their compliance boundaries, which reversed the way the rule had been interpreted since 1993. In 2012, the law center asked the Environmental Management Commission to revert to the earlier interpretation, but it refused.

SELC appealed, and earlier this month a superior court judge determined that the new law made the environmentalists’ argument about compliance boundaries moot. The judge upheld another part of the groups’ appeal, and said the state could require companies to immediately stop the source of groundwater pollution.

Gerken agrees with the other environmental groups that the legislation – House Bill 74 – changes the law. But he said the bill wasn’t so much about how big the compliance boundary is. Instead, he said, the new law limits state regulators’ authority to require pollution be cleaned up at older coal ash ponds when they violate standards. It suspended the requirement that DENR monitor and take action to deal with contamination inside the boundaries.

“This sweeping change, which gutted North Carolina’s groundwater law, happened quickly and quietly, just as conservation groups started pushing for this longstanding rule to be enforced against Duke’s coal ash contamination,” Gerken said.

Jarvis: 919-829-4576; Twitter: @CraigJ_NandO

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