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.
Thanks to a change in town guidelines, obtaining permission to install some solar panels in Hillsborough could now take about three days and $10, town officials say.
Members of the town's Historic District Commission approved a change classifying solar panel installations as "minor work" if they cannot be seen from the street. The revision allows town staff to review and approve the applications, rather than requiring approval from the commission.
Commission approval could take one to two months to complete. Town staff can do it in about three days, along with a $10 fee.
“It is perfectly in keeping with the need to preserve the character of the Historic District while promoting alternative energy in the age of climate change,” said Hillsborough Town Commissioner Jenn Weaver in a release. “Streamlining the solar panel approval process is a way the town can support alternative energy, and I’m so grateful to our staff and HDC volunteers for having the wisdom to come up with this solution.”
Town leaders said the change followed more than two dozen requests to install solar panels in the town after last year's Solarize Hillsborough program, a local campaign aimed at incentivizing solar panels by offering group discounts on installations.
It may not matter much in the end, but Chatham County commissioners have unanimously adopted a resolution opposing Duke Energy's plans to dump 3 million tons of potentially toxic coal ash in abandoned brick mines in Moncure and Sanford.
Board members called on state lawmakers to act to suspend the energy giant's proposal to dump in Chatham and Lee counties, which could be cleared as soon as early 2015.
However, as reported in the Indy last month, this year's Coal Ash Management Act leaves local government authorities virtually no decision-making power in the plan. State law allows the N.C. Department of Environment and Natural Resources to grant the necessary permits to Duke. Also, the law specifically forbids local government ordinances intended to block coal ash dumping.
Both Chatham and Lee leaders have said they plan to fight the company's proposal, with Lee County Manager John Crumpton not ruling out legal action in the process.
Chatham County Board of Commissioners Chairman Jim Crawford said the two counties south of the Triangle are "being asked to assume a disproportionate risk in this current plan."
"The N.C. General Assembly, in its haste to prod Duke Energy to action, effectively stripped local authorities of any power to safeguard the health of our citizens," said Crawford. "Neither can we collect fees to offset costs imposed on local governments. This is politically and economically unfair."
The Indy reported last week that the plan could absolve Duke of any legal liability for environmental impacts stemming from the dumping, likely passing on the cost to the owner of the brick mines, a relatively unknown corporation named Green Meadow LLC. If Green Meadow can't pay the cost of environmental damage, legal experts said the liability could fall on the state and local governments.
Duke Energy spokeswoman Jennifer Jabon told the Indy that its proposal is part of a "comprehensive" plan to safely dispose of the coal byproduct, which contains carcinogens such as arsenic.
"We feel a responsibility for the safe and permanent storage of the coal ash, which is why we've partnered with experienced vendors," said Jabon.
In this week's cover story for the Indy, we reported that a pending decision from the U.S. Environmental Protection Agency could be pivotal in determining who is legally responsible should Duke Energy's plans for coal ash dumping in privately-owned mines in Sanford and Moncure go awry. Based on today's ruling from the regulatory agency, it may not be the Fortune 500 utility.
EPA Administrator Gina McCarthy, an appointee of President Obama, said Friday afternoon that the coal ash would be regulated as a non-hazardous solid waste like household garbage, a designation leaving state government as the primary regulator for the coal ash.
That's not good news for environmentalists who've criticized North Carolina and its Department of Environment and Natural Resources for its close ties to Duke Energy.
"It did not do what the nation and the southeast needed," said Frank Holleman, an attorney for the Southern Environmental Law Center, a group that has challenged Duke Energy multiple times since 2008 to clean up its leaky coal ash deposits.
Citizen groups have widely panned state lawmakers for their Coal Ash Management Act, which charges a newly-formed commission of appointees with overseeing ash cleanup over the next 15 years.
Many environmentalists were hoping the EPA would classify coal ash a "hazardous waste," carrying much more stringent federal regulation of a waste's production, treatment and disposal.
A hazardous waste classification would have increased the liability burden, ensuring that the generator of such a waste—in this case, Duke Energy—could not eschew legal liability for its impacts simply by moving it off its land, as Duke plans to do with about 3 million tons in early 2015 in Sanford and Moncure.
Coal ash contains heavy metals that can cause illness in small doses, but can kill with prolonged exposure.
As we reported this week, Duke does not believe it is responsible for the environmental impacts of its Sanford and Moncure dumping because it is turning the ash over to the mines' landowner, Green Meadow LLC, a newly-formed corporation with unknown ownership and unknown assets.
Legal experts told the Indy that if such a group cannot afford the legal consequences of environmental contamination, the liability could fall back on the state.
Holleman said the EPA's decision puts pressure on citizen groups and environmentalists, rather than the federal government, to enforce environmental standards on the utility.
"We really need a strong federal or national role," Holleman said.
McCarthy told reporters that, following a review of more than 500 coal ash impoundments nationwide and relevant science, the agency could not support designating the industrial byproduct a "hazardous waste."
McCarthy said the EPA's new regulations represent the first ever national standard for the safe disposal of coal ash. She added that she expects most states will adopt the federal agency's new regulations, although they would not be required to do so.
"This is a gigantic step forward," said McCarthy. "We are in a much more certain position today than we were yesterday."
After much back and forth, Chatham Park is back again.
Once again, Pittsboro town leaders will hold a public hearing tonight on the future of Chatham Park, the long-planned development in the rural county that figures to increase the county's population by a factor of twelve in the next three decades.
Developers Chatham Park Investors LLC have submitted a rezoning application that would add 46 acres to the development district and make a few amendments to the park's master plan, including offering the town more strength in approving or denying future portions of the development.
The rezoning comes after a group of concerned residents calling themselves Pittsboro Matters filed suit against the Chatham Park investors this summer, contending the plan clashes with the town's land-use plan and offers vague, unenforceable guidelines.
Many have criticized the development as failing to offer sufficient open space or buffers from the Haw River, a regional drinking water source.
As Pittsboro Matters pointed out last week, the public hearing will allow residents to weigh in on the entirety of the plan. Members of the town Board of Commissioners approved an earlier version of the plan in June.
"This is a chance for the Town Board to get it right this time," said Pittsboro Matters Chairwoman Amanda Robertson in a statement. "We view this new application and review process as an opportunity for the town, (Chatham Park Investors) and citizens to engage in a real discussion of issues related to the master Plan, in order to address any concerns now before it is too late."
The 7,120-acre plan represents the largest mixed-use development ever proposed in North Carolina. Tonight's hearing begins at 7 p.m. in the Chatham County Historic Courthouse in downtown Pittsboro.
As expected, the N.C. Mining and Energy Commission completed its proposed regulations for the natural gas drilling industry on Friday. Also expected, many environmental activists are not happy with the results, which state lawmakers are expected to finalize next year. Read the recommended rules here.
"With all of the challenges of NC’s shallow shale formations, high population density, no regulatory experience and a tiny gas supply, why would we do this?" said Hope Taylor, executive director of Clean Water for N.C. "It’s a waste of public effort and resources to benefit a handful of folks.”
After receiving more than 200,000 public comments this year on their proposed fracking regulations, commission members approved fewer than a dozen major changes. Among the approved changes, regulators will be able to schedule unannounced inspections at drill sites and order stoppages for drillers who violate the law repeatedly.
The commission also increased the size of required buffers between municipal water supplies and drill sites, but stopped short of banning outdoor pits for fracking fluids, despite reports of leaking pits in other states. Duke Energy's coal ash spill this February raised awareness of the controversial pits as commission members readied rules this year.
Meanwhile, last week, environmental activists scoffed at the commission's agreement to allow unannounced inspections at drill sites. “This change in language to allow—but not require—unannounced inspections is not the big deal the agency and media are making it to be," said Elaine Chiosso, a riverkeeper for the environmental nonprofit Haw River Assembly. "It falls far short of the protections that the public expects."