Citizen Groups Voice Concerns as NC DEQ Tries Hasty Weakening of Coal Ash Rules

CHAPEL HILL, N.C.– Citizen groups from across the state today submitted comments objecting to parts of the North Carolina Department of Environmental Quality’s proposed coal ash rules that would undercut the rights of North Carolina citizens and weaken provisions of the federal coal ash rule included in the state regulations. The Southern Environmental Law Center submitted today’s comments on behalf of itself and Appalachian Voices, Catawba Riverkeeper Foundation, Dan River Basin Association, MountainTrue, Roanoke River Basin Association, Sierra Club, Southern Alliance for Clean Energy, Sound Rivers, the Stokes County Branch of the NAACP, and Winyah Rivers Foundation.

“We are submitting these initial comments now with the hope that DEQ thoughtfully chooses its next steps and finally listens to the demands of North Carolina citizens for a thorough cleanup of coal ash pollution in our state,” said Frank Holleman, senior attorney at the Southern Environmental Law Center. “We welcome additional state protections against pollution from unlined, leaking coal ash ponds that would supplement or go beyond federal requirements, but we object to miring citizens’ enforcement of the federal coal ash rule unnecessarily in a bureaucratic state permitting process and administrative legal morass while Duke Energy continues to contaminate the water supplies our families drink and our communities need.”

The agency’s roll-out of these rules has been unusually rushed—with as little as four days’ notice for public hearings—and confusing.  People who were able to attend hearings expressed frustration about DEQ repeatedly holding meetings and asking for comments, repeatedly being told the same thing by North Carolinians – require Duke Energy to remove its coal ash from unlined pits and put in place the maximum additional protections against coal ash pollution – and DEQ repeatedly ignoring their voices. 

Despite the clear consistent response from citizens, DEQ has yet to require Duke Energy to remove its coal ash from its unlined, leaking pits and now has proposed rules that do not provide adequate protections from Duke’s coal ash pollution.  In some instances, DEQ’s proposed rules weaken some existing protections.  And DEQ is using less protective provisions for municipal landfills that contain household garbage to weaken the protections against dangerous coal ash which contains toxic materials.

DEQ has not explained why it would risk undermining the national coal ash rule—known as the Coal Combustion Residuals Rule— by placing a state permitting program for the federal rule between the citizens and their right of enforcement. Only citizen enforcement has pushed Duke Energy to clean up its coal ash sites, and in the past DEQ has not taken effective action to protect clean water from Duke Energy’s coal ash pollution.  For example, DEQ never required Duke Energy to fix the pipe that collapsed at Dan River. DEQ proposed approving an unlined pit at the Lee site on the Neuse River, where coal ash is located in a floodplain and where Duke Energy has been required to excavate all the coal ash.  DEQ has resisted putting in place meaningful limits on toxic pollutants like arsenic and mercury that flow out of Duke Energy’s coal ash sites.

If DEQ adopts an inadequate coal ash rule permit under the program it now proposes, then citizens must contest that permit through the expensive and time-consuming process of the Office of Administrative Hearings and the state court appeal system.  This process can take years, and meanwhile pollution and dangerous coal ash disposal continues.  Today, no such cumbersome, expensive, and difficult process exists for enforcement of the federal CCR Rule against Duke Energy.  Citizens, just like DEQ and the state, can go into federal court and enforce the federal CCR Rule according to its terms.  There is no process available for Duke Energy to try to fudge, weaken, or avoid the terms of the rule itself. 

DEQ’s own presentations at its hearings on the rules indicate that it is embracing the efforts of EPA Administrator Scott Pruitt, who has taken action to dilute the federal CCR Rule and to protect utilities from having to address their coal ash pollution. Late on March 1 just before the release of data confirming groundwater contamination from utilities’ unlined, leaking coal ash pits across North Carolina and America, EPA Administrator Pruitt announced an effort to allow state agencies to reduce the protections against coal ash groundwater pollution. DEQ’s embrace of Administrator Pruitt’s priorities increases our concerns about these proposed state rules and a proposed DEQ federal CCR Rule permitting program.

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For more than 30 years, the Southern Environmental Law Center has used the power of the law to champion the environment of the Southeast. With over 70 attorneys and nine offices across the region, SELC is widely recognized as the Southeast’s foremost environmental organization and regional leader. SELC works on a full range of environmental issues to protect our natural resources and the health and well-being of all the people in our region. www.SouthernEnvironment.org