The groups—the Blue Ridge Environmental Defense League (BREDL), Chatham Citizens Against Coal Ash Dump (CCACAD) and EnvironmentaLEE—filed a petition for a contested case hearing with the state's Office of Administrative Hearings Monday. The office hears legal cases against state agencies such as DENR.
The case comes after DENR issued permits last month that would allow Duke Energy contractors to dump up to 20 million tons of potentially toxic coal ash in abandoned brick mines in Sanford and Moncure. Both coal ash dumping plans were bitterly contested by locals and environmentalists, although Chatham and Lee county officials made separate deals for compensation with Duke after finding that state law forbids them from stopping the projects.
In their legal challenge, the nonprofits say DENR's actions will have a "significant and adverse impact on the health and well-being" of the environmental groups' members, as well as their families and their property. The challenge also claims that DENR acted "erroneously" and regulated the projects as mine reclamation projects rather than landfills.
"Communities targeted for coal ash disposal deserve a regulatory agency that has their best interests at heart, not what is in the best interest of Duke Energy," said BREDL community organizer Therese Vick in a statement. "DENR had sufficient reason to deny the permits, and they did not."
Read the full challenge here.
The deal, which was announced Tuesday, requires Duke to pay $18 million to the county, with the first $6 million payment coming within 10 days after the company dumps its first coal ash at the site. Chatham will use the funds to help monitor the site, county leaders said.
The pact also caps the maximum amount dumped in Moncure at 12 million tons and forbids Duke from transporting coal ash from outside the state to Chatham.
“The agreement we voted on is certainly not everything we sought, because actions by the state of North Carolina prevented us from denying the site and have minimized our leverage,” Chatham County Board of Commissioners Chairman Jim Crawford said in a statement. “Even so, we have secured several important requirements that will help protect the safety and health of the community and natural resources.”
Chatham’s agreement follows two weeks after the N.C. Department of Environment and Natural Resources (DENR) approved key permits for the controversial project, which has generated widespread opposition from Chatham residents since it was announced in November.
Despite that opposition, state law forbids local governments from banning coal ash dumping in their borders. The coal byproduct contains toxic heavy metals such as arsenic and cadmium, both of which have been linked to cancer.
Lawmakers voted last year to require Duke Energy to clean up its leaky coal ponds across the state after a 39,000-ton spill in Eden’s Dan River. Duke also plans to dump up to 8 million tons at another brick mine in nearby Lee County.
Earlier this year, Lee County officials made their own deal with the energy giant, agreeing to accept $12 million from the company. Both deals would compensate the counties at a rate of $1.50 per ton of coal ash.
The Chatham deal includes several additional concessions to the county, including annual payments of $114,193 for five years to make up for lost property tax revenues following the closure of the company’s Cape Fear Plant in Chatham in 2012. Duke will also pay $300,000 to the Moncure Fire Department because of lost fire tax revenues.
Perhaps most importantly, the accord requires the company’s contractor, Kentucky-based Charah Inc., to notify the county of any water sampling results and any state permit violations. Chatham will also be able to perform its own testing on a quarterly basis provided it gives Duke notice.
“We will not hesitate to sound an alarm when it needs to be sounded,” said Chatham Board of Commissioners Vice Chairman Mike Cross. “The safety of residents, businesses and natural resources in that area is paramount.”
The county said the agreement would not preclude them from holding Charah Inc. and the landowner, Green Meadow LLC, legally liable for any environmental damage. As the Indy reported last year, the plan allows Duke to sidestep liability for the dumping.
The much-maligned state agency said it was issuing a notice of regulatory requirement Tuesday, which gives the company until July 9 to "control and prevent further migration of" coal ash pollution. Failure to do so would result in an unspecified fine.
After much public and political pressure, the state fined Duke $25.1 million in March, North Carolina's largest ever penalty for environmental pollution, for violations of state groundwater standards. Duke is contesting that fine in court.
It follows $102 million in fines and restitution ordered by a federal judge last month after the company pleaded guilty to nine violations of the federal Clean Water Act.
DENR said Tuesday that testing found high levels of boron, a metal associated with coal ash impoundments, in drinking water wells outside of the Wilmington plant's boundaries, including three wells a half-mile from the boundary.
"The levels of boron in these wells are a clear indication that coal ash constituents from Duke Energy's coal ash impoundments have infiltrated the groundwater supply," said DENR Assistant Secretary Tom Reeder in a statement. "We are ordering Duke Energy to immediately take corrective actions to prevent further migration of coal ash contaminants."
Boron is generally considered to be non-toxic to mammals, although it is a component in insecticides.
In April, the state acknowledged that the majority of tests in wells near the company's coal ash ponds across North Carolina exceeded state drinking water standards. The company is required to dispose of an estimated 100 million tons of the toxic byproduct in the next 15 years.
Last week, DENR approved one key component of their disposal plans in issuing permits for coal ash dumps in abandoned brick mines in Chatham and Lee counties. Both plans have been hotly contested by locals and environmental groups and also come with myriad concerns about legal liability, although Duke and DENR have argued that they believe the proposal to be safe.
Nevertheless, this week, a handful of environmental groups—the Blue Ridge Environmental Defense League, Chatham Citizens Against Coal Ash Dump and EnvironmentaLEE—criticized DENR. The groups argued that the agency's permits were premature, particularly because, earlier this month, DENR cited Duke contractor Green Meadow LLC for failing to get the proper permits before beginning land clearing on the Lee County site.
"It is clear that despite federal investigations and well-deserved negative publicity, that DENR decisions are still being made in the best interest of Duke Energy, not the people of North Carolina," said BREDL organizer Therese Vick.
The Southern Environmental Law Center, a nonprofit that specializes in legal work on environmental issues, announced the injunction Wednesday morning. The legal move effectively reinstated North Carolina's drilling moratorium, which lawmakers voted to lift last year.
The decision stemmed from a suit brought by the Haw River Assembly in Chatham County and one Lee County landowner. Lawyers for the two parties used Gov. Pat McCrory's ongoing legal challenge to argue that fracking should be stayed until the question of MEC's constitutionality is settled. The groups also say that any regulations written by the MEC should be declared "null and void."
Last year, McCrory and two former governors argued in court that legislators violated the state's constitution by giving themselves the authority to appoint a majority of the members on newly-created boards such as the MEC and the Coal Ash Commission.
A three-judge panel of Superior Court judges sided with McCrory in March, but the state's Supreme Court is expected to hear an appeal of that decision this summer.
"The citizens of North Carolina deserve to have a lawful, accountable and representative agency to put in place strong protections that safeguard our communities and water supplies from the risks and harms of fracking," said Elaine Chiosso, executive director of the Haw River Assembly, in a statement.
The injunction comes two weeks after the environmental group Clean Water for N.C. filed a separate legal challenge to the MEC's authority, claiming lawmakers also violated the constitution by giving the board the power to overrule any local bans or regulations on drilling.
Julia Janson, chief legal officer for Duke Energy, had to say that word over and over in a federal courthouse in Greenville Thursday as the giant utility pleaded guilty to nine misdemeanor violations of the federal Clean Water Act.
As expected, the company will be required to pay $102 million in fines and restitution for its crimes, part of a plea agreement Duke attorneys reached with federal prosecutors following last year's 39,000-ton coal ash spill in Eden's Dan River.
Duke was also facing criminal charges brought by federal prosecutors for illegal ash discharges at their Mount Holly, Asheville, Goldsboro and Moncure plants. In addition to the fines, the company was sentenced to five years probation Thursday, which will require monitoring of its ongoing coal ash cleanup statewide.
Prosecutors argued in federal court that the utility ignored warnings that its coal ash impoundments were in danger of leaking.
The Southern Environmental Law Center and other environmental groups have been urging Duke to clean up its leaky coal ash ponds since 2008, although North Carolina officials did not order the company to do so until after last year's highly-publicized spill in the Dan River.
In the next 15 years, the company must dispose of an estimated 100 million tons of North Carolina coal ash, which contains toxic ingredients such as arsenic and selenium.
Its initial disposal plans include dumping up to 20 million tons in lined pits in Chatham and Lee counties, plans which have come under heavy criticism from environmental groups and locals.
An environmental nonprofit and three North Carolina residents living in possible fracking destinations are legally challenging the authority of the appointed board that drafted the state's drilling rules.
The complaint, which was filed Friday in Wake County Superior Court, comes from Clean Water for N.C., a group that has lobbied to ban fracking in North Carolina for several years. The legal challenge contends that the N.C. General Assembly violated the state constitution in giving the appointed N.C. Mining and Energy Commission the authority to pre-empt local ordinances in crafting fracking regulations.
A number of local government bodies passed resolutions or ordinances opposing drilling within their counties, but state law—as recommended by the mining commission—holds that no local ordinances would be able to block fracking.
"We've been told to accept drilling and fracking 650 feet from our homes, drinking water wells and schools, and 200 feet from our streams," said Hope Taylor, executive director of Clean Water for N.C. "If local governments decide democratically to enact protections that their citizens need, the MEC shouldn't be able to toss them out."
The plaintiffs in the suit, in addition to Clean Water for N.C., are Martha Girolami, a Chatham County resident; Anna Baucom, chairwoman of the Anson County Board of Commissioners; and Darryl Moss, mayor of the Granville County city of Creedmoor. Creedmoor, Anson County and Chatham County have passed anti-fracking resolutions or ordinances.
The suit names the state, the mining commission and the N.C. Department of Environment and Natural Resources (DENR) as defendants.
The legal challenge follows another suit filed last November by Gov. Pat McCrory and two of his predecessors, which argued that lawmakers overstepped their authority in designing the appointment process for a newly-created panel that would recommend changes to the law following last year's coal ash spill in the Dan River.
The governor also cited the Mining and Energy Commission as an example of legislators stripping powers reserved for the executive branch when they gave themselves the power to appoint the majority of the boards' members.
More on this as it develops in the Indy.
Just a few hours after an Associated Press report already revealed the troubling news, the N.C. Department of Environment and Natural Resources (DENR) is publicly acknowledging that most drinking wells sampled near Duke Energy's coal ash ponds included contaminants exceeding state groundwater standards.
Of 117 sample results, 87 surpassed the state's standards, DENR said, although they would still meet the more lax federal guidelines imposed by the Safe Drinking Water Act. Residents were mailed their test results, as well as health risk evaluations and potential well treatment options to eliminate the contaminants.
"If we determine that groundwater standards in a well have been exceeded and that a coal ash pond is the source of that exceedence, we will require Duke Energy to provide the residents with an alternative water supply," said Tom Reeder, assistant secretary for DENR, in a statement.
Duke Energy was required by last year's Coal Ash Management Act to conduct testing at drinking wells within 1,000 feet of a coal ash pond property. These test results come from samples taken near the energy giant's Allen, Asheville, Belews Creek, Buck, Cliffside, Marshall, Roxboro and Sutton facilities, the state said.
DENR, oft-critizised for its seemingly cozy relationship with Duke Energy, said in its statement that the most common constituents exceeding state standards were iron, manganese and pH, all of which can be found naturally in North Carolina soil as well as in coal ash.
However, the AP is also reporting that some of the wells sampled included high levels of vanadium, a toxic metal found in coal ash.
The results come as state officials weigh applications from Duke Energy to dump roughly 3 million tons in abandoned brick mines in Lee and Chatham counties, part of a multi-year plan to dispose of about 100 million tons of the potentially toxic coal byproduct in North Carolina over the next 15 years. Check in tomorrow's Indy for additional coverage of that Duke proposal (Update: Read that coverage here).
Also, read a December report in the Indy revealing that the Lee and Chatham dumps, if approved, might allow the company to avoid legal liability for its coal ash.
As expected, county commissioners in Lee County—the presumably gas-rich, suburban county south of the Triangle—have taken a public stance opposing natural gas drilling, better known as fracking.
Lee County, which includes the county seat of Sanford, is expected to be one of the focal points of natural gas drilling in North Carolina in the coming years. But local leaders' resolution last week, approved by a new majority of Democrats, say the state's laws and the draft regulations proposed by the N.C. Mining and Energy Commission "do not adequately protect our environment, our county, or our state."
The resolution goes on to state that state law and the commission's rules "remove all local authority with respect to the extraction of natural gas and fail to provide local governments with compensation, either direct or indirect, for the impact of the extraction on local economies and infrastructure."
The vote rescinds an earlier resolution of support approved by a Republican majority in 2012. Among that majority was former Commissioner Jim Womack, who also served as chairman of the state Mining and Energy Commission. Womack, who was featured in a Feb. 2013 cover story in the Indy, chose not to run for re-election to the county board last year.
State leaders are expected to vote on the commission's regulations this year. Despite the fact that state laws expressly forbid local government bans on drilling, Clean Water for N.C. Executive Director Hope Taylor, whose nonprofit opposes fracking, said last week's move is "far more than a symbolic gesture."
"This is the county with potentially the most accessible natural gas, saying, 'It's just not worth it,'" said Taylor. "The change in perception in Lee County has been remarkable to behold."
Political winds change.
Case in point: Lee County, the suburban county south of the Triangle that is expected to be the focal point of natural gas drilling in North Carolina.
Democrats seized control of the local Board of Commissioners last November and are now expected to pass a resolution next week opposing fracking and the drilling regulations lobbed by the N.C. Mining and Energy Commission. Interestingly, that appointed commission was once chaired by former Lee County Commissioner Jim Womack, an outspoken conservative who supports fracking.
In Feb. 2013, the Indy reported on Womack's use of an anonymous blog to attack his local political enemies.
In the case of local politics, it can be difficult to assess what issue causes local government turnover, but it seems likely that the county's long-lagging economy and a groundswell of public opposition to drilling helped Democrats seize power. Thus, next week's motion.
The meeting is scheduled for 4 p.m. Monday in Sanford.
Federal leaders on Tuesday rolled out a five-year draft plan for offshore oil and gas leasing in the U.S. As expected, North Carolina is included.
The draft, announced by the U.S. Department of the Interior and the Bureau of Ocean Energy Management, includes 14 potential lease sales: 10 in the Gulf of Mexico, three off the coast of Alaska, and one in a portion of the Mid- and South Atlantic.
“The safe and responsible development of our nation’s domestic energy resources is a key part of the president’s efforts to support American jobs and reduce our dependence on foreign oil,” said Secretary of the Interior Sally Jewell.
The Atlantic lease area includes sites in offshore North Carolina, South Carolina, Virginia and Georgia.
“At this early stage in considering a lease sale in the Atlantic, we are looking to build up our understanding of resource potential, as well as risks to the environment and other uses,” said Jewell.
It would come with a 50-mile coastal buffer, the department said, to minimize conflicts with the Department of Defense, NASA, renewable energy work, commercial and recreational fishing and natural habitats.
From environmental groups, the criticism began quickly. Nonprofit Environment N.C. said the plan would put North Carolina's "natural heritage at risk," citing 2010's disastrous BP spill in the Gulf of Mexico, which gushed an estimated 210 million gallons into the water.
“As someone who experienced the BP oil spill firsthand, I’ve seen the damages that offshore drilling can bring to the coast from tar balls washing up onto beaches to pelicans and dolphins covered in oil,” said Liz Kazal, field associate with Environment N.C. “The prudent action to take is to keep North Carolina out of the plan for good.”
The federal agencies are requesting public comment as they consider the draft plans, which includes an environmental impact study. For more information, go here.