RALEIGH – The N.C. Department of Environment and Natural Resources yesterday levied the largest environmental fine in state history against Duke Energy for groundwater contamination from coal ash ponds at the company’s L.V. Sutton power plant near Wilmington.

The agency fined the utility $25.1 million for several years of leaking coal ash that polluted groundwater around the Sutton plant. The penalty also includes the state’s investigative costs. The state also hinted yesterday that more fines for groundwater violations at other Duke power plants could be coming.

The penalty dwarfed the previous record $5.6 million fine that the state issued in 1986 against Texasgulf Chemicals, now PCS Phosphate, for air emission violations at its phosphate mine and fertilizer plant on the Pamlico River in Beaufort County.

Donald R. van der Vaart, DENR’s secretary, said yesterday that the record fine shows Gov. Pat McCrory’s commitment to cleaning a legacy of coal ash pollution that grabbed headlines last year after an ash pond at an old Duke plant in the Piedmont spilled into the Dan River. DENR last month cited Duke’s Asheville plant for contaminating groundwater. It also ordered Duke to supply bottled water to one home near the plant in 2013 and Duke voluntarily supplies a second residence.

“In addition to holding the utility accountable for past contamination we have found across the state, we are also moving expeditiously to remove the threat to our waterways and groundwater from coal ash ponds statewide,” van der Vaart said.

Duke, which has 30 days to respond, could appeal the fine to an administrative law judge. The company is reviewing the assessment, said Catherine Butler, a Duke spokeswoman.

Environmentalist applauded the fine as a good, but much delayed, first step. The fine does little to ease the fears of people who live near the Sutton plant and get their drinking water from local wells, noted Kemp Burdette, the Cape Fear Riverkeeper.

“Unless the state forces Duke to clean up the groundwater, the $25 million fine is really not doing much,” he said.

Forcing the company to clean up its pollution ultimately has to happen, echoed Cassie Gavin, director of Government Affairs for the state chapter of the Sierra Club. “While we appreciate that this is a significant enforcement penalty, there needs to be an end to the pollution into Lake Sutton and the groundwater,” she said. “Contamination is continuing even as the fine is being issued.”

There is no evidence that anyone’s drinking water is threatened, Butler said. “We have no indication of any off-site groundwater impacts that would pose a health concern for neighbors that have not already been addressed,” she said.

Tests in 2013 showed that nine pollutants found in coal ash had contaminated groundwater near the Sutton plant. Duke agreed later that year to pay to extend a public water line to affected communities.

The company has monitored groundwater at the Sutton ash basins since 1990 and routinely reports the results to the state, Butler explained. The company, she said, is currently following a process mandated by a state law passed last year to enhance groundwater assessments at all its power plants.

DENR determined that Duke allowed a host of coal ash contaminants to leach into the groundwater at the Sutton plant for several years in some cases. State officials calculated the penalty by determining the number of days specific pollutants exceeded a groundwater quality standard, then multiplied that number by a daily penalty amount.

In the case of the thallium, for instance, state officials determined that Duke exceeded the standard for 1,668 days. They then multiplied that number by $5,000, which is the daily civil penalty allowed for substances that are considered to have significant health risks. The fine for thallium alone was more than $8.3 million.

A trace element in coal, thallium enters the environment primarily from coal-burning and smelting. It stays in the air, water and soil for a long time and isn’t broken down. It is highly toxic to humans and animals and was once used to make rat poison.

The Sutton plant opened in 1954. Its three coal-fired burners were replaced by natural gas units in 2013.

Three environmental groups filed a notice the following year to sue Duke under the federal Clean Water Act for groundwater violations. The state preempted that lawsuit with one of its own.

“We filed that lawsuit because there were some pretty major violations, but we couldn’t even get DENR to call us back,” Kemp said. “Now they’re at least fining them $25 million, though they’re not doing anything to force Duke to clean up. But we’re at least now moving in the right direction.”

DENR officials met several times in 2013 with lawyers from the Southern Environmental Law Center, countered Drew Elliot, an agency spokesman. The law center represented environmental groups that had intended to sue Duke.

About 7.2 million tons of coal ash are stored in three ponds at Duke Energy’s L.V. Sutton power plant near Wilmington. The ponds were built in 1971 and 1984. Before then, the ash was intermittently stored in an area Duke calls “lay of the land area,” or LOLA. Photo: Duke Energy

RALEIGH — Coal ash removal from waste basins at Duke Energy’s L.V. Sutton plant in New Hanover County and three other key sites in the state, could start as early as next April if the utility gets the green light on a new set of coal ash plans announced earlier this month.

Duke is trying to meet a legislative deadline of August 1, 2019, for cleanup at the four sites that were identified as top priorities by the company and state regulators.

In the first phase of the plan, estimated to take 12-18 months after all permits are in hand, Duke would use trains to ship two million tons of ash from the Sutton plant to lined landfills that are part of a  project to reclaim clay mines near Sanford in Lee County and near Moncure in adjoining Chatham County. A million tons of ash from the company’s Riverbend plant in Gaston County will also be at the mines.

The first phase also includes shipping about half of the remaining coal ash from the Dan River power plant in Eden to a new lined landfill in Jetersburg, Va. The Eden plant was the site of the February spill that focused attention on the 32 coal-ash ponds at 14 Duke power plants in the state.

The company will also continue shipping ash from its power plant in Asheville to the city’s airport where it will be used as fill for a new airport runway. Duke plans to store any leftover ash at a new lined landfill near the power plant.

The Sutton plant, which stopped burning coal in 2013, has three coal-ash basins. The oldest, built in 1971, holds roughly 3.5 million tons of ash, which was a residue of coal combustion. A newer basin, built in 1984, holds about 2.8 million tons. Another site on the property, thought to be partly used as an ash basin in 1954 and 1972, could hold as much as another 840,000 tons of coal ash.

If done right, it would be a win for those fighting to get the coal ash at Sutton out of the unlined basins away from groundwater and nearby Sutton Lake, a major recreational fishing area, said Frank Holleman, one of the lead attorneys at the Southern Environmental Law Center working on coal ash litigation, of the Sutton plan.

“In concept, it could be an appropriate place to put the ash,” he said of the plan to use the clay mines.

In addition to the lining, the clay, which leaks less than other soils, would act as another buffer preventing contact with groundwater.

Mike Giles, an N.C. Coastal Federation Coastal advocate based in Wrightsville Beach, said how well the ash is isolated from groundwater at the clay mines will be important as well as how carefully it is moved.

“We have to make sure the activity isn’t going to make the groundwater contamination worse,” he said.

Getting the green light for the clay mines project may not be so easy, Giles noted. Residents recently turned out at a meeting to tell Lee County commissioners they would fight the plan.

A Cooling Basin No More

Charah, a company based in Louisville, Ky., could dispose of much of the coal ash at the Sutton plant. Here, company workers spread ash over a liner. Photo: Charah

One twist on the story at Sutton is the recent state reclassification of Sutton Lake from a cooling basin for the power plant to a public trust water, a move that environmentalists urged for years.

Tom Reeder, director of the N.C. Division of Water Resources, notified Duke of the reclassification in a Nov. 5 letter. The change, Reeder noted, meant that the company would need to revise its wastewater discharge permits.

The move reverses longstanding state policy. As late as December 2011, when the most recent discharge permit was approved, the N.C. Department of Environment and Natural Resources, or DENR, had upheld the cooling basin classification.

“I recognize that this determination is a departure from prior determinations made by DENR,” Reeder said in the letter.

Holleman said the change corrects a decision that never made sense. The law center sued last year to force the state to change the classification of the 1,100 acre lake, which is managed as a state game land and includes a new, state-built $3 million fishing dock.

“It’s a major victory,” Holleman said. “Sutton Lake is an important recreation and food resource and now it will be protected like any of the state’s rivers and lakes. There’s absolutely no question that it is waters of the state and Duke has treated it as wastewater lagoon.”

He said several studies, including extensive work by Wake Forest University to document the effects of high levels of selenium in the lake, underline the result of years of lax enforcement.

The change affects the discharge permits at the plant and the classification of the dams at the Sutton site.

Reeder’s notification triggered a change in the rating of the dams for both the 1971 and 1984 basins, which had been rated “exempt” and “low-hazard” respectively. The two dams are now rated as “high hazard” because failure of the dam could lead to a discharge into Sutton Lake — now a water of the state. The change means the dams will be subject to more frequent inspection.

At the recent inaugural meeting of the state’s new Coal Ash Management Commission, DENR’s Jeff Poupart, a water quality permitting section chief for the Division of Water Resources, said the lake could now be subject to more testing as well. The reclassification, he said, brings the lake in line with state and federal requirements and public perception.

“If you went there, you’d see boats and fishermen and assume it was a water of the state, but it was actually a treatment unit.”

The new Coal Ash Management Commission held its first meeting recently uncertain if it’s legal or will get the money it needs to do its job. Photo: Kirk Ross

Commission Meets Under a Cloud

The Sutton changes and the new Duke excavation and removal plans were among the heaps of information ready for the new Coal Ash Management Commission when it got down to business in Chapel Hill for its first meeting on Nov. 14.

The commission was created by the N.C. General Assembly as part of the Coal Ash Management Act passed in the final days of this year’s session.

The act gives the commission broad authority over cleanup plans throughout the state. Its main role will be in overseeing removal and cleanup plans and prioritizing removal at Duke’s 11 other sites in the state, including the H.F. Lee plant on the Neuse River near Goldsboro.

Michael Jacobs

Duke’s recent plans for the four critical sites were filed in response to an executive order by the governor and are not under the purview of the commission.

The nine-member panel is chaired by Michael Jacobs, CEO of a Wilmington-based financial capital company and a professor of finance at UNC-Chapel Hill. During a break in the commission meeting Jacobs told reporters that he had toured the Sutton site and three other locations and said he was struck by how different each one was. “The issues at each one were very different,” he said. “You can’t just lump them altogether.”

The complexity of the review work, he said, will make it hard to meet some of the ambitious goals outlined in this year’s legislation. The commission, which is based in the Division of Emergency Management, has yet to hire an executive director and engineering staff. Its first report to the legislature is due on Dec. 1.

“We’re going to try and move as quickly as we can, but I need some staff before we can make some decisions,” Jacobs said.

The commission is asking for a delay until an executive director and technical director have been in their roles for six months.

But those challenges may pale in comparison to a new one that questions the commission’s existence.

Just days before they met for the first time, Gov. Pat McCrory announced a lawsuit challenging the appointment process for the commission, which has six seats appointed by the legislature and three by McCrory.

In his lawsuit the governor, who was joined in the action by former governors Jim Hunt and James Martin, says that the coal ash commission — and a new oil and gas commission appointed in a similar way — violates the state constitution’s separation of powers requirements.

Last fall, though he praised for parts of the coal ash legislation, McCrory allowed the bill to become law without his signature, citing concerns about the set-up of the commission.

McCrory’s lawsuit follows a similar one filed on behalf of the State Board of Education that challenges the constitutionality of the Rules Review Commission, which also has broad authority over state environmental rule making.

At the coal ash commission’s meeting, Lisa Schneider, who is serving as legal counsel for the group, acknowledged the lawsuit and McCrory’s objection, but said that they are bound to operate under the provisions of the Coal Ash Management Act.

“That’s the law of the land right now,” she said.

The Sutton plant near Wilmington is one of the four “high-risk” sites identified by Duke Energy as priority for clean up. Photo: Cape Fear Riverkeeper

RALEIGH — On the heels of an announcement by Gov. Pat McCrory that he’ll sign the recently passed Coal Ash Management Act, regulators stepped up pressure last week on Duke Energy over groundwater contamination near its L.V. Sutton Plant near Wilmington.

Tom Reeder, director of the N.C. Division of Water Resources, sent a formal notice of violation to Duke Energy on Aug. 26.

In a statement accompanying the announcement of the violation letter,  Reeder said his division was doing what it could ahead of the outcome of a lawsuit that the state filed over groundwater contamination at all 14 of the utility’s coal ash sites.

Reeder said groundwater monitoring wells at Sutton showed that levels of boron, thallium, selenium, iron, manganese and other contaminants were higher than state standards. Duke has 15 days to respond to the notice. The company could face penalties of up to $25,000 a day if it fails to begin the cleanup.

“We said in court last year that the groundwater around the Sutton Plant was contaminated by Duke’s coal ash ponds,” Reeder said. “But as the legal process for stopping the violations drags on, we will take what action we can using our existing authority to hold the utility financially accountable for damaging the public resource.”

Kemp Burdette, the Cape Fear Riverkeeper, said it’s unclear why the state has decided to take that kind of action after it filed a lawsuit over the contamination last year.

Kemp Burdette

“It’s usually a first step,” he said of the notice of violation. “It’s more of a low-level enforcement action. A lawsuit is a much more serious response.”

Burdette’s worry is that the state’s recent notice might even slow down any cleanup at Sutton or set up an unsatisfactory legal settlement akin to one the state offered Duke last year but withdrew after the massive coal ash spill on the Dan River near Eden in February.
“It seems too little, too late,” Burdette said. “The state has known about the contamination for years and they’re during this now?”

Testing by researchers with Wake Forest University at Sutton Lake, a popular fishing spot near the three coal ash basins, has shown high levels of selenium and other heavy metals, which the scientists say is migrating into the lake from the groundwater.

In response to the state, Duke officials point to the closing of the Sutton ponds, which would include moving the ash to a lined landfill, as a solution to the groundwater concerns.

Erin Culbert

“The company is moving swiftly to permanently close the Sutton ash basins, which will ultimately resolve this issue,” Erin Culbert, a Duke Energy spokeswoman, wrote in an email response. “The majority of exceedances at the Sutton Plant are for iron, manganese and boron, with other sporadic exceedances that do not appear regularly.”

Culbert said the company added two new groundwater monitoring sites between the ash basins and the wells that Cape Fear Public Utility draws drinking water for the Flemmington community. Monitoring has shown that groundwater from Sutton is moving in the direction of the wells.The company has paid for a new municipal water line to the area. Culbert said the new monitoring sites will provide more information for Duke and the utility while the water line is under construction.

“We’ve seen one exceedance of iron, and all other parameters are well within groundwater standards,” she said.

Over the last several months, Duke had been conducting engineering and scientific studies on geology, groundwater, soils and other aspects of the Sutton site to devise a closure plan, Culbert said. “In the meantime, the state legislation was passed that will require ash to be excavated,” she wrote in an email. “We are working now on the excavation plan and what those next steps will involve.”

What to do with all that ash is a major question. “We have begun the work to explore alternatives for where the excavated ash could go,” Sulbert wrote. “This includes evaluating options for both on and off-site lined landfills or lined structural fills, where ash serves as a replacement for fill material. No decisions have been made at this point.”

New Bill Drives Schedule

Clean-up plans at the Sutton site and at coal ash ponds in Asheville, Gaston County and Eden, are included in the bill and are similar to those recommended by McCrory and Duke Energy.

The four sites are categorized as “high-risk” under the legislation. Cleanup, including dewatering and moving the ash to a lined landfill, is required to be completed by Aug. 1, 2019.

The bill gives the N.C. Department of Environment and Natural Resources, or DENR,  until Dec. 31, 2015, to prioritize the closure of the remaining 10 sites and the authority to add any of them to the high-risk list.
The bill mandates that ponds considered “intermediate risks” be closed by Dec. 31, 2024. Duke would have until 2029 to clean up low-risk sites. All sites would be monitored for 30 years after closure.

The legislation, which runs 52 pages and includes dozens of separate provisions, almost didn’t happen.

Even before the session started in May, legislators promised that a coal ash bill would be a top priority for the session. But the bill appeared dead after a committee of legislators charged with working out disagreements between the state House and Senate versions was disbanded at the end of July.

To the right of the Sutton plant are the three coal ash ponds next to Lake Sutton. The U-shaped body of water at the top, left corner of the aerial photo is a section of the Cape Fear River. Photo: Google

That prompted the McCrory administration to move forward without a bill. On Aug. 1 the governor issued an executive order, which among other things ordered DENR to start an immediate assessment of drinking water wells near coal ash ponds.

Over the final weekend of the session, prospects for a coal ash bill suddenly shifted after the Senate offered compromise language further defining what type of ponds could be identified as low risk. Duke could be allowed to cover such ponds with a cap and leave the ash in place. The compromise, though, prevents ponds where the ash sits below the water table from being classified as low risk.

The compromise bill passed quickly through both chambers on Aug. 20, the last day of the legislative session, first in the House by a vote of 84-13, and then in the Senate,  38-2.

Last week, McCrory said he would sign the bill, but is considering a constitutional challenge of a provision that reduces the executive branch’s role in a commission the bill creates to oversee the cleanup. The Coal Ash Management Commission would be set up in the N.C. Division of Emergency Management at the Department of Public Safety, and not in DENR, and most of its members would be appointed by the legislature, not by the governor.

Senate and House leaders have already named five of their six appointments to the nine-member commission through a provision in a separate appointments bill.  McCrory has not announced any commission appointments.

In addition to the new commission, the bill provides $1.75 million for 25 new positions at DENR. It also adds five positions at the N.C. Division of Emergency Management for support work for the commission.

Groundwater Debate

During the debate on the bill in the House, Rep. Rick Catlin, R-New Hanover, one of the main House negotiators, urged his colleagues to support the bill to move the state forward in dealing with coal ash.

Rep. Rick Catlin

“I would not support it if I thought there was any environmental issue we had missed,” Catlin said. “There will be some things we’ll have to solve technically in the future, but I think we’re doing a good thing.”

New requirements, he said, including tighter monitoring of all sites and a clay cap and liner for any low-risk sites helps protect groundwater. “The latest issue of this bill ensures that our groundwater issues will be addressed,” he said.

While it passed with strong support, the bill has come under criticism from environmental groups, which say that it still doesn’t go far enough on groundwater and could roll back some existing protections.

Some are counting on predictions that there will be more chances to get it right on coal ash. Bill sponsors said at the end of the session they expect further legislation as soon as the next session.

In a statement issued after final passage, Molly Diggins, director of the N.C. Sierra Club, said one bill won’t solve the problem. “Without this legislation, coal ash would have remained essentially unregulated, an untenable position for North Carolina residents,” she noted. “Still, today’s action does not go far enough to prevent more contamination of our treasured water resources.”

Burdette said he’s concerned about the effect of what’s been passed so far, especially one provision that would allow DENR to include seeps from coal ash impoundments as part of a facility’s wastewater permit, making what is now an illegal discharge permittable.

He said in addition to not being able to accurately measure their flow, the seeps, are often at the lowest part of the ponds. “The seeps are coming right off the bottom, where the contaminants are the worse and are all mixing together,” Burdette said.

Samples he’s drawn from the Cape Fear River near seeps at Duke’s Moncure plant have shown exceedances in chromium, arsenic, lead, aluminum and mercury, he said. “It’s a toxic cascade of heavy metals.”

Frank Holleman

Frank Holleman, a senior attorney with the Southern Environmental Law Center who has worked on many of the coal ash cases, said the seep language is one more indication that the bill could do more harm than good.

“The bill is, if anything, a step backwards,” he said. “There’s not one thing in it that Duke has to do that it has not already said it would do.”

Holleman said once plans are announced in the communities with coal ash impoundments, he expects the new coal ash commission and DENR will “get an earful” at public hearings if they don’t require complete cleanup.

He said many of the bill’s provisions weaken protections by giving DENR and the commission too much freedom to waive requirements and standards. Even worse, he said, is the new processes could end up extending the amount of time it will take to clean up the sites.

“This could drag out for years,” Holleman said.

Legal Challenges Ahead

Rep. Chuck McGrady

McCrory is not the only person considering a legal challenge to provisions in the coal ash bill.

One provision in the legislation is aimed directly at a March ruling by Superior Court Judge Paul Ridgeway that Duke Energy must take immediate action to stop groundwater contamination at coal ash sites, including removal of the source. That case, one of two major lawsuits on coal ash working through the courts, is likely to see further action this fall as a result of the new law.
D. J. Gerken, an attorney with the law center’s Asheville office, said he thinks the provision will prove unsuccessful. He said the law center intends to file a brief on the matter and expects that Duke and possibly others will as well.

House sponsors said they pushed for the language on the Ridgeway ruling because of the expectation that the ruling will be overturned on appeal.

Rep. Chuck McGrady, R-Henderson, the chair of the House negotiating team, said during the House debate that he and others believe Ridgeway went too far in requiring removal of the source of groundwater contamination, a mandate that could reach beyond coal ash basins and require costly cleanup at some municipal landfills.

RALEIGH – The principal authors of a state law to clean up coal ash ponds and basin predicted when they got started in the spring that the bill wouldn’t please everyone. It turns out that they were right.

After dozens of hours of committee hearings and many more hours behind the scenes, the Coal Ash Management Act of 2014 has picked up strong bipartisan support and equally strong criticisms, especially after the state House amended the Senate’s original version.

Rep. Rick Catlin, a Republican from New Hanover County who was on the House team that worked on the changes, defended them.  The changes, he said, were needed to make the bill workable.

“It’s a very aggressive bill,” Catlin said. “We’re taking the lead in nation on addressing this.”

At the same time, he said, “it’s very important to solve this correctly and safely.”

Sen. Tom Apodaca

The Senate delayed a vote until tonight  to concur with the House amendments, but the bill’s lead sponsor, Sen. Tom Apodaca, R-Henderson, indicated that the Senate would vote not to concur. A committee of legislators would then be appointed to come up with a compromise. The committee will be on a tight schedule with both chambers picking up the pace this week to wind up the budget and remaining legislation.

The House worked through a flurry of 28 proposed amendments to the coal ash bill during a marathon floor debate earlier this month. Among the controversial changes made by the House was a revision that opponents say weakens groundwater protection and a variance provision that would allow the N.C. Department of Environment and Natural Resources and the newly created Coal Ash Management Commission to extend cleanup timetables set in the bill. The House version also moves the new coal ash commission under the executive branch, a move demanded by Gov. Pat McCrory. The Senate version sets the commission up as an independent agency.

In a repeat of debate in the Senate, several amendments that went down to defeat in the House were aimed at expanding the list of coal ash sites named as priorities for cleanup. The bill lays out specific timetables for the removal of ash at three current and former Duke Energy power stations in Asheville, Gaston County and New Hanover County that environmental groups threatened to sue because of alleged violations of the federal Clean Water Act. The bill also sets cleanup plan for the old Duke power station in Eden. A massive spill there in February demonstrated the consequences of years of lax state oversight of the ponds and spurred legislators to action.

Under both House and Senate versions of the bill the remaining sites would first be ranked according to risk to public health with cleanup at the highest risk required by 2019, intermediate risk by 2024 and lowest risk 2029.

As compromise negotiations begin, environmental groups are stepping up their opposition to some of the House amendments to the bill, while continuing to push for greater certainty for cleanup of the sites not listed as priorities.

The Sutton power station near Wilmington would be on the priority list for immediate clean up. Source: Cape Fear River Watch

“The Senate bill was weak to begin with,” said Kemp Burdette, Riverkeeper with Cape Fear River Watch, “it got even weaker in the House.”

The legislation, he said, still does not spell out how DENR and the new coal ash commission should evaluate the sites.

Burdette said he sees promise in the mandated cleanup at the L.V. Sutton plant in New Hanover County. A number of other sites, though, also have serious problems, he said.

Duke stores 106 million tons of ash at 14 sites in the state. Eighty-four million tons soak in 32 ponds, while 22 million tons are kept dry as fill material or in dry basins.

Burdette toured the ash ponds at Duke’s Chatham County plant at the other end of the Cape Fear River on Friday and said the ponds should have been on the high priority list from the outset.

The site did make the list briefly, after a coalition of Democrats and Sandhills Republicans won a vote on an amendment to add it to the priority list. The win was later overturned after House leaders intervened.

Burdette said given what he saw on Friday, taking the Cape Fear ponds off the list seemed wrong.

“It looks pretty bad,” he said. “There are multiple seeps. The ponds are leaking. All five of [the ponds’ dams] are ranked as high hazard and they are arguably the most dangerous in the state.”

Adding more specific language that would ensure that the Cape Fear and other high hazard sites would improve the bill, he said, but Burdette said he’s not hopeful that that will happen.
He is also among a group of advocates seeking changes to the House-backed provision altering enforcement of cleanup if groundwater is contaminated. Frank Holleman, lead attorney for the Southern Environmental Law Center’s coal ash litigation, said a House amendment tries to overturn a ruling in March by Judge Paul Ridgeway of Wake County District Court that said under existing state law Duke must remove the source of groundwater contamination immediately once that contamination has crossed a so-called “compliance boundary,” which is 250 to 500 feet from the pond depending on its age.

Holleman said the House made the bill “much, much worse” by trying to negate the ruling and if the new language stays in the legislation it would be worse than having no bill at all because it would overturn existing law.

The bill’s variance provision, he said, leaves too many of the decisions to DENR and the new coal ash commission. “It still says ‘trust DENR,’” he said. “Why would anyone put their trust in DENR in the area of coal ash given what’s happened?”

Kemp Burdette

Rep. Rick Catlin

Catlin, an environmental engineer, said he backed the variance provision because it gives regulators leeway to adjust the cleanup timetable in case there are changes that need to be made to the proposed plan or a new technology is made available. Finding a place to safely store the ash and then transporting there won’t be easy, he said.

“It takes at least a year to build a landfill and inspect it and make sure it’s done properly. I saw a need for a variance to make sure things were done correctly,” he said.

Sometimes, moving too fast, he said, can cause more problems than they solve.

Catlin said he backed the change to the compliance boundary provision because it would have affected many other sites around the state and because the Ridgeway decision could have led to a much more chaotic approach to cleaning up the sites.

DENR said the decision would have affected more than 2,000 sites around the state including some spray irrigation operations, agriculture wastewater ponds and older municipal landfills, according to Catlin. The unintended consequence of the decision, he said, could have been an economic disaster for counties around the state. Catlin said it also would have gutted the coal ash bill and left prioritizing the sites to the legal process. “You might as well have just thrown the bill in the trash can,” he said.

Catlin said he expects the issue to be revisited during conference negotiations. He said it might be possible to find a way to restrict the effect of the Ridgeway decisions to the coal ash basins.

Holleman said it should be possible to narrow the language in the bill.

“If they want to protect municipal landfills, they can do it without giving Duke amnesty,” he said.

And although he voted against adding Cape Fear to the list, Catlin said he believes it and some of the others proposed for addition to the priority list during House debate will be classified as high risk once DENR and the coal ash commission begin work.

The solutions, he said, need to be technical, not political.

Catlin also expects the legislature’s work on coal ash not to stop with this year’s effort adding that he’ll likely tour most of the sites in the interim to look over specific problems.

“No one has seen all 32 ponds,” he said. “The chances of needing to come back and address this again are pretty strong.”

Last of two parts

WILMINGTON — Unlined, decades-old ponds holding more than two million tons of coal ash at Duke Energy’s plant outside Wilmington are some of the first in the state that the utility plans to close.

Duke will submit to the N.C. Department of Environment and Natural Resources a conceptual closure plan for the coal ash ponds at the L.V. Sutton Steam Electric Plant off U.S. 421 by mid-September, Paul Newton, president of Duke’s utility operations in North Carolina, said during an April 22 meeting of the state Environmental Review Commission hearing.

Paul Newton

“Once the appropriate permits are received, removing water from the ash basins will be completed in the next 18 to 24 months,” he said, according to a transcript of the hearing.

Closing all 33 ash ponds at Duke’s 14 North Carolina sites could cost billions and take upwards of three decades, he said.

Environmental groups that want Duke to act now say that’s too long given the threat these lagoons, which store 106 million tons of ash in the state, pose to nearby waterways and groundwater.

Earlier this year a Wake County Superior Court judge agreed. Judge Paul Ridgeway on March 6 ordered that Duke take “immediate” action.

His ruling was issued about a month after a Feb. 2 coal ash spill from a retired Duke plant in the Piedmont coated 75 miles of the Dan River.

Mary McClain Asbill

The utility and the Environmental Management Commission have appealed. They argue the state does not have the authority to order an immediate cleanup.

In the meantime, federal prosecutors are conducting a criminal investigation into the Dan River spill. Duke and DENR have received more than 20 subpoenas demanding documents and ordering state employees to testify before a grand jury.

The investigation began after questions were raised about a proposed deal between state regulators and Duke to settle groundwater contamination violations at the company’s plants near Asheville and Charlotte by fining the utility a $99,111. The state and utility were also negotiating a settlement for the contamination at Sutton.

Open-Ended Timeline

Duke’s legal troubles do not appear to impede its plans to expedite closing the ponds at the Sutton plant.

Sen. Phil Berger

Sen. Tom Apodaca

“We are working now on engineering studies to help determine the most appropriate way to permanently close the basins,” Erin Culbert, a Duke spokeswoman, wrote in an email responding to questions. “This engineering work ensures we select a method or combination of methods that will protect groundwater long-term. The timeline for removal of ash at Sutton, if that option is selected and approved by DENR, would depend on its destination (lined landfill or lined structural fill) and how soon that destination can be prepared and ready to receive the material.”

Closure plans for the basins at Sutton and three other plants are in a bill introduced in the N.C. General Assembly last week by Sens. Phil Berger, R-Rockingham, and Tom Apodaca, R-Henderson.

Senate Bill 729 is similar to an earlier one proposed last month by Gov. Pat McCrory, who retired from Duke after nearly 30 years with the company.

The bill requires closure plans for Sutton to be submitted within 90 days of the bill’s passage. Those plans must include detailed provisions to ensure all ash in the impoundments will be moved to a lined structural fill or to a lined landfill, but the bill allows an “alternative disposition” approved by DENR.

The bill calls for DENR to “establish the priority for closure of all active and inactive” ash basins, but it stops short of specifying how the department should set those priorities. Included in the bill is $1.4 million to fund 19 permanent positions in DENR “to implement this act.”

Grassroots Effort

Environmental groups are taking advantage of mounting public interest in the aftermath of the Dan River spill by encouraging residents and local leaders to pressure the state to do more on the coal ash front.

Outlined in yellow are two coal ash ponds at the Dolphus M. Grainger power plant near Conway, S.C., where locals lead a successful case against their utility company, Santee Cooper, to remove all ash waste. Source: Southern Environmental Law Center

“While we work in the courts the state can and should act,” Mary Maclean Asbill, a senior attorney with the Southern Environmental Law Center, said during an April 28 forum hosted by the Cape Fear Group of the N.C. Chapter of Sierra Club.

More than 50 people attended the meeting at a local radio station in downtown Wilmington, where they were encouraged to write Wilmington’s mayor, city council and New Hanover County commissioners.

Zachary Keith, the N.C. Sierra Club lead organizer, told the audience that Duke cannot be allowed “to kick the can down the road.”

He and Kemp Burdette, the Cape Fear Riverkeeper, earlier this year asked the Wilmington City Council to adopt a resolution urging the state to enforce the cleanup of ash basins.

Council members, most of whom toured the Sutton plant earlier this year, took no action.

“We can learn from this and say look, we need to not let this happen again here,” Burdette said. “We want these things moved away from waterways.”

Keith talked about how residents in Conway, S.C., a town about 90 minutes south of Wilmington, got involved in a fight to stop river and groundwater pollution from ash basins at a local power plant. The utility, Santee Cooper, agreed in a settlement to remove all ash waste from its Dolphus M. Grainger Power Station away from the Waccamaw River. The company also committed to removing ash at two other stations over the next 10 to 15 years.

South Carolina Electric and Gas made a similar commitment in 2012, agreeing to remove all 2.4 million gallons of ash from its plan on the Wateree River near Columbia.

Wilmington resident Robert Miller said after the forum that he wasn’t ready to write his local leaders just yet.

“I don’t know what I’ll do, if anything,” he said. “I’m not a big environmentalist, but every now and then I get fired up. I certainly support the idea of the state putting a timeline on clean-up efforts. I thought this is the kind of stuff that happens in the western part of the state. I didn’t realize that the problem was so severe and it was so close.”

First of two parts

The Sutton power plant is in the lower left, the two coal-ash ponds on the right. The large body of water is Sutton Lake. A loop of the Cape Fear River is in the upper left.

WILMINGTON – Duke Energy’s two coal ash ponds north of Wilmington – the only ones on the N.C. coast – are leaking and full of nasty stuff. They are high on everyone’s clean-up list. The governor wants them closed. So do legislators. The company hopes to have it done within two years.

The ponds cover more than 155 acres at Duke’s L.V. Sutton Generating Station on U.S. 421. They contain about 2.6 million tons of slurry, which is a mixture of fly and bottom ash, boiler slag, ash sluice and wastewater — byproducts of burning coal to produce electricity. It is a concoction that includes arsenic, selenium, lead, and cadmium. All are human carcinogens that can cause organ and developmental problems.

Sutton’s ponds are adjacent to the lower Cape Fear River and Sutton Lake, a 1,100-acre reservoir that now-defunct Carolina Power & Light Co. built in 1972 to provide water to cool the plant’s boilers. The plant was converted to natural gas last year.

One pond is more than 40 years old. The other was built 30 years ago this year. They are lined with clay and both are leaking.

“Every single coal ash pond in North Carolina leaks,” said Cape Fear Riverkeeper Kemp Burdette. “These [ponds] are not highly engineered. They leak from the bottom.”

Duke did not begin voluntarily testing groundwater around its 33 ash ponds in the state until 2006. Two years later, the state began requiring tests within a 500-foot radius of the ponds following the worst coal ash spill in history when 5.4 million cubic yards of coal ash flowed from a broken dike in Kingston, Tenn., into the Emory and Clinch rivers.

Flemington Road community member Sam Malpass of Wilmington holds a glass of water from his home. Malpass and his wife, Pat, are part of a small community near L.V. Sutton Generating Station that residents fear could be polluting well water with seepage from large coal ash ponds. Testing of the well water, however, hasn’t uncovered any evidence of pollution. Photo: Randall Hill, AP

Groundwater testing at Sutton has revealed levels of arsenic, boron, chromium, iron, lead, manganese and sulfate exceeding environmental standards underneath the coal ash impoundments.

These contaminants are seeping into surface waterways and discharging into Sutton Lake, Burdette said. The lake is a popular recreational and fishing spot known for its largemouth bass, bluegill and crappie.

A plume of contaminated groundwater is traveling toward drinking wells in the Flemington community, a working class neighborhood of about 400 residents whose homes sit about a half-mile from the plant.

The Southern Environmental Law Center on behalf of Cape Fear River Watch, the Sierra Club and the Waterkeeper Alliance, filed a federal lawsuit in September against Duke for unlawful groundwater contamination and its threat to the community’s drinking wells and pollution of Sutton Lake.

Duke is paying for more than half of the estimated $2.25 million it will cost to extend Cape Fear Public Utility Authority’s pipes to the neighborhood.

“The water system serving the Flemington community meets federal and state drinking water standards with a margin of safety, and there is no public health risk to those residents,” Erin Culbert, a Duke spokeswoman, wrote in an email response to questions. “However, monitoring data indicated groundwater was starting to move in the direction of the CFPUA wells. It’s unclear whether groundwater constituents could be expected in the future to affect water quality in the Flemington wells, but we wanted to prevent that possibility.”

The water line project will be complete in two years, she said.

State regulators have not taken action to force Duke to stop the spread of the underground pollution.

The groups suing Duke also contend that selenium from the ponds is harming fish in Lake Sutton. Sampling that they paid for found that selenium pollution is killing fish in the lake at rate of more than 900,000 a year and triggering mutations in thousands more that affect their ability to survive, The groups researchers also found that the lake’s population of catchable bass has dropped 50 percent since 2008.

Duke was cited in March by the state for illegally pumping about 61 million gallons of contaminated water from coal ash at its Cape Fear plant into the Cape Fear River about 2½ hours upstream of Wilmington. The utility maintains it did not violate its permit.

The Breach

Cape Fear Riverkeeper Kemp Burdette shows the location of the L.V. Sutton Generating Station and it’s proximity to Sutton Lake and the Cape Fear River at a map located at the lake’s landing in Wilmington. Photo: Randall Hall, AP

On Sept. 27, 2010, heavy, steady rains saturated the area and quickly filled the newest pond at Sutton, which was built in 1984. Stormwater burst through the southeast corner.

A plume of mud and ash spread about 60 feet out from the roughly 30-foot high earthen dam, “but was contained completely in the general area,” according to state documents.

The breach left a gap 80 feet long, 22 feet wide and nine feet deep.

The company placed stone at the top of the breached area to prevent more sludge from spilling from the pond. Runoff was pumped into a wastewater truck.

“That area was modified after the event to prevent future events, and no other similar events have occurred since,” Culbert said. “The ash dams at Sutton are safe and are inspected frequently.”

Dams are inspected monthly. Sutton’s ash dams were last inspected April 24, “and identified nothing unusual,” Culbert said.

A 2013 nationwide Environmental Protection Agency inspection of coal ash impoundments designates Sutton’s pond dams as “satisfactory” with no existing or potential safety deficiencies.

“Our dam safety program requires additional inspections after two inches of rain fall within 24 hours,” Culbert said. “These inspections give us an early indicator about any erosion or changes occurring that would require maintenance or repair. Additionally, as part of our proposed plan to the governor and state regulators, we’re planning to accelerate the removal of freestanding water in ash basins at retired plants, including Sutton. This minimizes the potential risk of a discharge caused by extraordinary circumstances like a hurricane.”

Eliminating freestanding water does not eliminate the risk, Burdette said. “They’re still just mounds of earth piled up around coal ash in hurricane alley,” he said.

Storm drain pipes made of corrugated metal run underneath Sutton’s ponds. Similar drainage pipes failed at Duke’s retired Eden plant in February spilling tons of ash into the Dan River.

Duke inspected the pipes at Sutton after the spill. They were found to be in “good condition,” according to state Department of Environment and Natural Resources.

“The results were provided to DENR at the end of March and April, respectively,” Culbert said. “In general, video inspections found some infiltration in pipes that we will repair but identified nothing that would indicate an immediate structural issue.”

Tuesday: The Clean-Up Plan

The Sutton plant near Wilmington is one of the four critical sites identified by Duke Energy as priority for clean up. Photo: Cape Fear Riverkeeper

RALEIGH — At least three legislative proposals calling for tighter regulations and the cleanup of coal ash ponds are in the works for the coming General Assembly session.

The session, which starts in mid-May, is the first since a massive spill in the Dan River at a retired Duke Energy plant near Eden drew national attention to the lack of oversight and regulation of 33 ponds on 14 sites in North Carolina, including the newly retired Sutton generating plant, on the Cape Fear River near Wilmington.

At a meeting Tuesday of the legislature’s Environmental Review Commission, representatives of Duke Energy and state Department of Environment and Natural Resources officials briefed legislators on the cleanup of the Dan River spill along with an update of plans for the assessment of the company’s other sites around the state.

Paul Newton, president of Duke Energy’s North Carolina operations, reiterated a plan for the three Sutton ponds outlined in a March 12 letter to Gov. Pat McCrory from Duke CEO Lynn Good. Sutton was one of four sites in the state identified as priorities by the company.

Good’s letter said the company plans to “accelerate planning and closure of the Sutton ash ponds to include evaluation of possible lined structural fill solutions and other options.”

The letter also commits the company to a timeline to spell out a closure strategy for the ponds within the next six months and to continue drying out the ash basins, a process expected to take 18-24 months to complete.

Paul Newton

At Tuesday’s meeting, Newton said the company plans to submit strategies for all 14 sites to DENR by the end of the year. After that, Duke will conduct a more detailed evaluation and plan for each site, which can take 6-12 months to complete. Newton said the work will be done at several sites in tandem and should be completed statewide in 24 to 36 months.

An initial estimate provided by the company showed the cost could range from $2 billion to cover work at the four critical sites and capping in place the other 10 sites to as much as $10 billion should the state require full excavation and complete conversion of all plants to dry only ash systems.

Although the company has not indicated how it will cover the cost of the cleanup, state utility regulators told legislators Tuesday if it were passed on to ratepayers it could mean as much as a 20 percent hike in utility bills.

Sutton Details Unclear

In Duke’s latest update, Sutton, along with the Dan River site and the company’s Riverbend plant near Charlotte is included in cost estimates for removal and excavation of coal ash “to a lined structural fill or lined landfill.”

But while it’s included Sutton in the costs, Newton said the company is waiting for further assessment while it looks at its options. In an interview after the legislative briefing, Newton said Sutton was a unique case.

“With Sutton, it’s going to require some more information to find out what is the best solution,” Newton said.

Rep. Rick Catlin, R-New Hanover, said from what he has heard it does appear that the idea is to relocate the Sutton ash to a lined landfill. “The big questions are where that’s going to be and how long it takes,” he said.

Catlin said he supports establishing deadlines for Duke to come up with compliance plans for all the sites. He said the state also needs to improve inspections and monitoring.He expects a strategy for the site to be worked out by the end of the year.

He also supports DENR’s move to open up the stormwater discharge permits at Sutton and a handful of other sites and advocates opening them up for all 14 because it sets a deadline for coming up with a plan.

“It’s a good way to evaluate site by site whether they are in compliance,” he said.

Cape Fear Riverkeeper Kemp Burdette said Duke does seem to be moving ahead with a removal plan for the ash at Sutton, but he remains cautious without further details.

“They went a little further than they have in the past in saying they’d do that,” he said, “but it’s a little early to say we support the plan.”

Burdette said that, as at all the other sites, the Sutton ash ponds are contaminating groundwater. But given the nature of the Sutton area, it is more difficult to monitor due to the thick vegetation around the lake near the pond berms.

Wilmington officials also plan to take a hard look at any plan for Sutton before signing off on it. The city’s drinking water supply, which comes from an intake at the Number One Lock and Dam would not be affected by a spill, but its downtown is a few miles downstream from the plant.

To the right of the Sutton plant are the three coal ash ponds next to Lake Sutton. The U-shaped body of water at the top, left corner of the aerial photo is a section of the Cape Fear River. Photo: Google

Tony McEwen, assistant to the city manager for legislative affairs, said Mayor Bill Safo and members of the city council toured the Sutton plant three weeks ago and held a discussion and update on its coal ash ponds last week.

“The council is going to give it due diligence to try to understand the options on what to do with coal ash,” McEwen said.

So far, the city is trying to gather information and has not issued any formal demands to Duke, McEwen
said. The council, he said, is expected to consider a resolution sometime in the next month proposed by the Sierra Club calling for a cleanup.

Legislation Shaping Up

With the legislative session just a few weeks away, the prospect of coal ash bill appears likely.

Both Gov. Pat McCrory and House and Senate Democrats are on record with proposals and House and Senate leaders are developing a joint proposal.

Rep. Chuck McGrady, R-Henderson, who was in discussions earlier in the interim with Senate Rules Committee chair Tom Apodaca, R-Henderson, said after Tuesday’s Environmental Review Commission meeting that legislation is starting to come together that will focus on speeding up action on the ash ponds and improving oversight.

Rep. Chuck McGrady

Rep. Pricey Harrison

McGrady said he’d like to see a bill include better monitoring, inspection and regulation, and an end to wet coal ash disposal.

“I think we need to strengthen regulation of coal ash ponds and specifically prohibit construction of new ones,” he said. The legislature would also have to provide additional funding as well.

“This is going to come at a cost,” McGrady continued. “I think on DENR’s side you can’t give them a lot of new responsibilities and expect to not have to pay for it.”

Rep. Pricey Harrison, D-Guilford, said she expects to see Democrats move ahead with their bill, which calls for more extensive and definite removal of the existing ash. She said the company should not be able to get away with simply putting a liner over a site that is already contaminating groundwater.

“It’s problematic to leave these ponds in place because you have toxins that will continue to leach into nearby waters,” she said.

Duke got into the problem by mismanaging its coal ash, Harrison said, and should not be allowed to pass the cost onto consumers.

“I think Duke has significant revenue and spread out over a decade they could cover the cost,” she said.

She said the legislature should require a specific time frame for closure of the ponds and repeal changes made last year loosening standards on compliance boundaries for groundwater contamination.

Harrison said there is agreement on both sides of the aisles that a third legislative proposal, put forward by McCrory early this month, did not go far enough in spelling out a time frame and requiring specifics for cleanup.

RALEIGH — Hours before yesterday’s press conference where North Carolina’s top environmental regulators tried to defend the state’s clean-up efforts after the Dan River coal ash spill, news broke that U.S. prosecutors have issued another round of subpoenas that expand the federal probe of the state’s oversight to all coal ash ponds, including three near Wilmington.

The U.S. attorney’s office in Raleigh issued the first round of subpoenas a week ago seeking records about a coal ash spill on Feb. 2 at a retired Duke Energy power plant that dumped about 40,000 tons of toxic coal ash slurry into the Dan River in the northern Piedmont.

John Skvarla

The new subpoenas issued Tuesday widen the probe to all of Duke’s 32 ash ponds at 14 active or retired coal-fired power plants in the state. Included in that number are three ponds at Duke’s Sutton Plant
north of Wilmington. Those ponds border a popular public lake where a researcher has found high levels of toxins in the sediment and an unusually high number of deformed fish.

Close to two dozen employees of the state Department of Environment and Natural Resources, or DENR, were also subpoenaed to testify next month before a grand jury in Raleigh about any payments or items of value they might have received or made from Duke Energy or its predecessor company Progress Energy or Carolina Power & Light. The department was ordered to produce their personnel files. Among those ordered to appear are DENR officials in the department’s Wilmington and Washington offices in charge of water quality and aquifer protection and their Raleigh-based supervisors.

“People will go to jail if these subpoenas uncover that criminal behavior is endangering our rivers and public health,” said Todd Miller, executive director of the N.C. Coastal Federation.  “Let’s hope that’s not the case, and instead this is a tragic but inevitable consequence of lax environmental enforcement caused by agency leaders who strive to appease polluters.”

At the press conference yesterday at DENR offices in Raleigh, spokesman Drew Elliot and John Skvarla, the department’s secretary, refused to answer questions related to the subpoenas, citing policy about ongoing investigations.

Skvarla said the agency had not opened an internal investigation into the issues cited by federal prosecutors, whose initial round of requests sought information about the Dan River plant’s permits, inspection records, sampling results and all communication between DENR and Duke Energy and subcontractors for both working at the site.

Skvarla said that under his leadership DENR was being far more proactive about the ash ponds than previous administrations. Gov. Pat McCrory appointed Skvarla, a Raleigh businessman, last year to head the department.

DENR, Skvarla said, considers itself “partners” with environmental groups seeking cleanup of the sites, but disagreed with what he called their “one size fits all” approach. The groups, he said, only wanted to see the sites dug up and the coal ash transported to lined landfills. In some cases, he said, that would be the worst thing to do for the environment.

Most of the ponds are not lined, and environmental groups that are fighting to close them are worried about indications of groundwater contamination at all 14 sites.

This Google Earth image shows the Sutton Power Plant north of Wilmington and the three coal ash ponds that border Lake Sutton, a popular fishing lake that was built as a cooling pond for the power plant.

Lake Sutton Contamination

At a meeting Monday on the coal ash spill by the legislature’s Environmental Review Commission, Cape Fear Riverkeeper Kent Burdette stressed the need for DENR to take action not just to prevent a major spill like the one in the Dan River, but also to get a better handle on how the heavy metals that are the ash’s toxic signature are ending up in public waters.

Burdette said an extensive study released in October by Dennis Lemly, a Wake Forest University researcher and an expert on selenium contamination of fisheries, showed that the sediment at Lake Sutton, the 1,100-acre reservoir next to Duke’s Sutton Plant near Wilmington, contains high levels of selenium, a likely cause for the high rates of deformities that Lemly found in the lake’s fish. In one sample, almost 30 percent of the small bluegill had skeletal deformities. Coal ash from the Sutton plant is stored in three ponds bordering the lake.

Burdette said the state has not done enough to inform the public of the danger at the lake, a popular fishing spot favored for its largemouth bass. “When Sutton Lake fish are brought home to dinner tables,” he told legislators, “the selenium goes with them.”

Selenium is a natural element that in trace amounts is essential to good human health. It’s a common ingredient in coal ash, however, and when released in the environment in large amounts selenium is a persistent poison that has well-documented effects on fish reproduction and growth.

A small bluegill from Lake Sutton with a deformed spine, top, compared to a normal fish. The deformation in this fish and in many others sampled in a study of the lake is called lordosis (swayback) and kyphosis (rounded back). Photo: Dennis Lemly

A deformed mosquito fish from Lake Sutton with lateral curvature of the spine (scollosis). Photo: Dennis Lemly

Belews Lake in Surry County remains the poster child of selenium contamination in the U.S. It was created in 1973 to provide cooling water for Duke’s Belews Creek Steam Station, the largest coal-fired power plant in the state. Duke discharged selenium-laced water into the lake for more than a decade. As selenium accumulated in the lake, the 20 resident species of fish started showing deformities to the spine, head, fins and eyes. Largemouth bass stopped reproducing, and the state issued advisories about eating fish from the lake.

Duke stopped discharging wastewater into Belews in 1986, but long-term studies by Lemly and other researchers showed that the ill effects persisted long after the source of pollution was gone. As late as 2002, high numbers of deformed fish were still being found in the lake.

In an interview Tuesday, Burdette said the state Wildlife Resources Commission recently expanded a boat ramp and fishing pier at Lake Sutton and during heavy use there are as many as 300 boats on the lake and dozens of people fishing from the pier. Few are aware, he said, that less than 300 yards away is the outlet for runoff from coal ash ponds.

Although he’s concerned about the high levels of selenium and heavy metals, Burdette did not downplay the area’s risk that a Dan River-like spill could happen on the Cape Fear, which after passing the plant and lake  winds another 4.2 miles before reaching downtown Wilmington.

The Sutton plant’s three ponds, which sit close to the lake, cover roughly 135 acres and contain 745 million gallons of coal ash slurry more than three times the amount at the Dan River plant. The two main ponds at the plant are on the EPA’s list of sites with a significant hazard risk.

“What the spill points out is that the ponds and berms are not highly engineered structures that aren’t likely to fail,” he said. “I think it’s the opposite.”

He said heavy rains in 2010 caused a breach at one of the ponds at Sutton spilling a large amount of coal ash slurry on the east side of the site. The direction of the spill was fortunate he said, but had the other side of the pond given way instead, the ash would have gone straight into the lake.

“That was during a heavy rain, not a hurricane,” he said.

Burdette said the state also needs to increase its focus on groundwater contamination, especially in the coastal plain where surface waterways and groundwater interact and the flow through the aquifer systems is difficult to predict.