Coal Tattoo

Coal ash spills and citizen suits: Sound familiar?

Coal Ash Spill

Amy Adams, North Carolina campaign coordinator with Appalachian Voices, shows her hand covered with wet coal ash from the Dan River swirling in the background as state and federal environmental officials continued their investigations of a spill of coal ash into the river in Danville, Va., Wednesday, Feb. 5, 2014. Duke Energy estimates that up to 82,000 tons of ash has been released from a break in a 48-inch storm water pipe at the Dan River Power Plant in Eden N.C. on Sunday. (AP Photo/Gerry Broome)

UPDATED: Speaking of spills — here’s our Gazette report on the coal-slurry spill here in West Virginia today.

The Associated Press had a great story out yesterday about the events that preceded the big coal-ash spill on the Dan River in North Carolina:

Over the last year, environmental groups have tried three times to use the federal Clean Water Act to force Duke Energy to clear out leaky coal ash dumps like the one that ruptured last week, spewing enough toxic sludge into a North Carolina river to fill 73 Olympic-sized pools.

Each time, they say, their efforts have been stymied — by the N.C. Department of Environment and Natural Resources.

The state agency has blocked the citizen lawsuits by intervening at the last minute to assert its own authority under the federal act to take enforcement action. After negotiating with Duke, the state proposed settlements where the nation’s largest electricity provider pays modest fines but is under no requirement to actually clean up its coal ash ponds.

The story continues:

Environmental groups and federal regulators had been concerned for years about problems at Duke’s 31 coal-ash waste ponds in North Carolina. Those concerns intensified after a 2008 disaster in Kingston, Tenn., where 5 million cubic yards of ash burst out of a basin, covering 300 acres and devastating a nearby river. The cleanup has cost $1.2 billion.

After Kingston, the Southern Environmental Law Center began examining the issue with conservationist groups and targeted a coal ash lagoon along the Wateree River in South Carolina.

On behalf of the Catawba Riverkeeper Foundation, the legal group filed a lawsuit against South Carolina Electric & Gas for violating state environmental laws. They reached an agreement that requires the utility to empty its lagoons and move the ash to a lined landfill licensed to handle hazardous waste.

That isn’t all:

Next, the environmental groups turned their attention to Duke’s coal ash ponds in North Carolina. The groups had long shared water samples from lakes and rivers near the waste ponds with state regulators that showed contamination, but no fines were issued.

So in January 2013, the SELC filed a notice of intent to sue Duke in federal court over coal ash pollution at the company’s Asheville Steam Generating Plant.

The Clean Water Act allows citizen groups to file lawsuits over environmental violations, but it requires them to give 60-days’ notice to state regulators to take enforcement action before the case can proceed. On the 58th day after the notice, DENR filed notice it would assert its jurisdiction.

Duke Energy, coal ash spill, Dan River

An undated photo of gullies in the coal ash pond at the Duke Energy Dan River Steam Station in Eden, N.C., show where coal ash flowed towards the Dan River beyond the far berm.   Duke Energy said Tuesday,  Feb. 4, 2014, that an estimated 50,000-82,000 tons of coal ash and water was released from a pond at its retired power plant in Eden into the Dan River.     (AP Photo/The Charlotte Observer, John D. Simmons)

And there’s more:

On March 26, the SELC sent another notice for contamination from coal-ash lagoons at the Riverbend Steam Station in Gaston County. On the 60th day, state regulators again intervened.

On June 19, the legal group once again sent a 60-days’ notice to sue Duke over coal ash pollution leaking from Duke’s Sutton Power Plant near Wilmington.

“The Sutton site is scary bad,” said Frank Holleman, a senior attorney at the Southern Environmental Law Center. “They’ve got significant groundwater contamination on one side headed toward the drinking water wells of a poor community. On the other side, you have a popular public fishing lake where they had significant fish die offs, and fish contamination.”

Once again, state regulators filed an enforcement action against Duke on the very last day. This time, however, the state also filed enforcement actions for all of Duke’s remaining coal ash sites in North Carolina, which effectively blocks environmentalists from pursuing action against them under the Clean Water Act.

Meanwhile, the state announced a deal with Duke to settle the litigation involving the Asheville and Riverbend sites.

The state proposed that Duke pay $99,111 to settle the environmental violations at Asheville and Riverbend. Environmentalists criticize the proposed fines as couch-cushion change for a company valued at nearly $50 billion.

If this sounds familiar to readers here in West Virginia … well, it should. For example, recall this story from 2008:

In November 2006, environmental group lawyers warned Hobet Mining that its Boone County operations were dumping too much selenium into tributaries of the Mud River.

Lawyers Derek Teaney and Joe Lovett told Hobet that the West Virginia Highlands Conservancy and the Ohio Valley Environmental Coalition planned to sue the company over its alleged permit violations.

The formal notice of intent to sue gave the company 60 days to fix its pollution problems. Federal law requires citizens to give companies and regulators such notices before filing a Clean Water Act lawsuit.

On Jan. 12, 2007 – the 60th day after the Hobet notice – the West Virginia Department of Environmental Protection filed its own selenium lawsuit against Hobet Mining.

Under the law, if DEP “has commenced and is diligently prosecuting” its own case, the citizen groups are prohibited from suing Hobet.

 As that story pointed out:

… The January 2007 lawsuit isn’t the only time that DEP officials have stepped in and effectively blocked a citizen effort to force coal companies to reduce selenium pollution.

Three months after that suit, in March 2007, Teaney and Lovett filed more legal notices. This time, they targeted six more permits, including four new permits that weren’t part of their initial lawsuit notices.

By mid-May, DEP lawyer Tom Clarke had sought to amend his agency’s pending suit in Boone Circuit Court, to add the new permits targeted by the environmentalists.

The coal industry isn’t the only place that the WVDEP has tried this tactic … remember this story:

West Virginia regulators have proposed a $1.3 million pollution settlement with PPG Industries, but the deal does not set a firm deadline for the company’s Natrium chlorine plant to stop its repeated violations of water discharge limits for toxic mercury.

Lawyers for the state Department of Environmental Protection proposed the deal to resolve a lawsuit the agency filed against PPG last year in Marshall County Circuit Court.

In May 2009, DEP filed suit against PPG after two environmental groups, the West Virginia Rivers Coalition and Oceana, filed a formal notice of intent to sue the company to try to force it to stop repeated mercury violations from the Natrium plant. PPG officials had suggested the DEP suit, which helped the company head off any potentially stronger court sanctions the citizen groups might have sought in their own lawsuit.

DEP’s lawsuit was the latest in a long series of actions by state officials to help PPG, including four instances in the last 20 years in which DEP backed off tougher water pollution limits for the Northern Panhandle plant.

In the AP coal-ash story, Frank Holleman, a senior attorney at the Southern Environmental Law Center, said:

This is a common technique of regulators who are friendly with the law-breaking regulated entities.  They will come in and file at the very last minute and then quickly propose a favorable settlement to the lawbreaker to prevent the citizens group from leading the litigation.