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River advocates, Duke Energy spar over coal ash disposal at Mayo power plant

In this Wednesday, Feb. 5, 2014 photo, Jenny Edwards, program manager for Rockingham County with the Dan River Basin Association, scoops coal ash from the banks of the river as state and federal environmental officials continued their investigations of a spill in Eden, N.C. Duke Energy estimates that up to 82,000 tons of ash has been released from a break in a 48-inch storm water pipe at the Dan River Power Plant. (AP Photo/Gerry Broome)
In this Wednesday, Feb. 5, 2014 photo, Jenny Edwards, program manager for Rockingham County with the Dan River Basin Association, scoops coal ash from the banks of the river as state and federal environmental officials continued their investigations of a spill in Eden, N.C. Duke Energy estimates that up to 82,000 tons of ash has been released from a break in a 48-inch storm water pipe at the Dan River Power Plant. (AP Photo/Gerry Broome) AP

Roanoke River advocates say Duke Energy is breaking the law by not disposing of its coal ash properly, and it’s polluting water near the Mayo power plant in Person County. But Duke Energy says it’s following the law.

The Southern Environmental Law Center intends to take Duke Energy to federal court on behalf of the Roanoke River Basin Association to dispute the company’s coal ash disposal plan at the Mayo facility.

The SELC plans to bring an enforcement action in court against what it calls a planned “open dump” of coal ash by Duke.

In November 2016, Duke Energy posted a public notice that it planned “to leave over 6 million tons of coal ash at Mayo in an unlined, leaking pit sitting in 70 feet of groundwater near Mayo Lake,” according to the SELC. The ash is polluting groundwater, the lake and a nearby stream, the SELC wrote.

Mayo is two counties east of Duke’s 2014 ash spill into the Dan river, which triggered a state-ordered shutdown of all its ash ponds. The Dan is part of the Roanoke River basin.

But Duke Energy says the SELC’s claims are not consistent with the federal coal ash rule and advocates are asking for extreme measures.

“Excavating all ash basins, whether science calls for it or not, is the most extreme and disruptive approach that brings with it decades of impacts to the environment and communities,” said Duke Energy spokeswoman Erin Culbert.

Coal ash basins are sometimes excavated, and other times they are capped in place in accordance with the U.S. Environmental Protection Agency to prevent contamination. In either scenario, water is removed from each basin to protect water quality in the nearby lake or river, according to Duke Energy.

North Carolina’s Department of Environmental Quality sued Duke over groundwater contamination and illegal seepage from ash ponds at Mayo and other power plants in 2013.

The SELC sent a notice to Duke Energy on Tuesday of its intention to dispute the plan. The notice informs the company that “it has violated the federal Coal Combustion Rule, which prohibits open dumps of coal ash that leave coal ash in groundwater or impound water and coal ash.”

The SELC is disputing Duke Energy’s practices on several fronts. The first was under the Clean Water Act, and that case now is pending in federal court. Duke Energy was notified of the second on Tuesday, which alleges violations under the Coal Combustion Residuals Rule, said Kathleen Sullivan, SELC spokeswoman. The Clean Water Act lawsuit deals with an alleged ongoing discharge of pollution at the site and the new lawsuit deals with the coal ash sitting in what the SELC said is an unlined pit, sitting in groundwater which it will continue to pollute.

The federal rule requires years of monitoring groundwater after a basin is, according to Duke Energy.

“If more improvement is needed, there are a variety of steps we can take to further protect groundwater in a targeted way short of digging up all the material (coal ash) and relocating it to a new facility,” Culbert said.

But advocates say Duke Energy is polluting the water.

“Duke Energy has been polluting groundwater, Mayo Lake and the Dan River Basin for years,” said SELC lawyer Frank Holleman. “It’s well past time that Duke Energy complied with the law and removed its Mayo coal ash to safe, dry, lined storage where it won’t pollute clean water and drinking water supplies.”

But Duke Energy said the federal rule allows both excavation and capping in place as options to safely close basins.

“It’s critical that we make those decisions by sound science and engineering – not by fear,” Culbert said.

“The EPA has studied coal ash for decades and repeatedly determined it does not warrant regulation as hazardous waste,” according to Duke Energy.

Under the federal Coal Combustion Residuals Rule, Duke Energy was required to post its closure plan for the Mayo site in November 2016, according to the SELC. But if coal ash is in groundwater or if coal ash and water are confined together, the plan is “an illegal open dump” under the rule, the SELC wrote.

But despite criticism to the contrary, Culbert said there is no evidence of declining fish populations or unhealthy fish in the Mayo reservoir.

“In fact, annual monitoring shows relative weights of large mouth bass indicate healthy, robust fish,” she said.

Duke Energy has a modern, lined landfill at the Mayo site, which could hold all the coal ash in its Mayo coal ash pond, as well as ash produced by the ongoing operation of the plant, according to the SELC.

“Duke Energy has been polluting the clean water and the drinking water supplies of the Dan River and Roanoke River Basins for years,” said Mike Pucci, president of the Roanoke River Basin Association. “We’re asking only that Duke Energy do the responsible thing and move its ash at Mayo to its on-site modern landfill where the coal ash won’t pollute the clean water of North Carolina and Virginia.”

Duke Energy executives plead guilty in federal court in Greenville, NC to charges related to a large coal ash spill in North Carolina's Dan River.

The Southern Environmental Law Center has offices in Virginia, North Carolina, South Carolina, Georgia, Washington, D.C., Alabama and Tennessee and represents environmental groups throughout the south.

The Roanoke River Basin Association is a nonprofit organization based in Danville, Va. that advocates for responsible use, preservation and enhancement of the Roanoke River system of lakes and streams.

Abbie Bennett: 919-836-5768; @AbbieRBennett

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