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coal ash hand Duke Settlement On Coal Ash Spill

A Wake County judge Friday, February 12, 2016,  questioned the legality of part of an agreement between the state's environmental agency and Duke Energy reached last fall to settle complaints about years of groundwater contamination as reported in by Anne Blythe of The News & Observer. Judge Paul Ridgeway presided over the hearing in which environmental organizations argued that a state administrative law judge overstepped his authority when he approved a $7 million settlement last year between the Department of Environmental Quality and Duke. "This order has language that in my view goes beyond resolving a penalties case," Judge Ridgeway told attorneys. The environmental law attorneys contended the agreement prevented the state from enforcing groundwater pollution laws at the utility's 14 leaking coal ash sites. The environmental lawyers called it a sweetheart deal. Not only was the fine less than a third of the initial $25 million the state had planned to impose, they said, the agreement covered groundwater remediation plans at sites that were not part of the case. Judge Ridgeway agreed that Phil Berger Jr., the administrative law judge who presided over a hearing on that agreement, touched on issues in his order that were not part of his purview, particularly regarding how pollution would be removed from sites that are part of other pending court cases. Judge Ridgeway, who has presided over other Duke coal-ash cases, said he thought any settlement in a long-running case was "a positive step" but was troubled. "I do find that the circumstances of this agreement -- and quite frankly the insistence of clinging to the language of this agreement -- is disturbing," Judge Ridgeway said. "I have to suspect that there's some ulterior motive."

Judge Ridgeway's decision is unlikely to hold up the $7 million fine, but it could have an impact on how Duke and the state collaborate on groundwater remediation at other North Carolina sites. It was unclear what the next steps would be for Duke and the state. But they said they planned to ask Judge Berger to amend the 2015 settlement order. A spokeswoman for DEQ said "the settlement explicitly provides for the remediation of groundwater under North Carolina's groundwater standards as included in the coal ash management law. To read the document as in some way circumventing the requirement to clean up groundwater is absurd." Duke said in a statement that it was "interested in resolving legal matters, allowing the company to continue to focus on safely closing ash basins. SELC needs to take yes for an answer, rather than seeking another legal podium to tie this issue up in court”.
Contaminated Water

Contamination  of well water with heavy metals exists already near the abandoned clay mine where Duke Energy plans to store coal ash.   Lee County interim health director Heath Cain said Friday, February 12, 2016,  that more than a dozen homes within half a mile of the site have been warned not to drink or cook with their well water. Tests found hexavalent chromium and vanadium. Both appear along with mercury and arsenic in coal ash, the toxic waste left after coal is burned to generate electricity. Lee officials last fall began testing wells before Duke Energy begins moving about eight million tons of coal ash from storage pits to the abandoned clay mine. Director Cain says they don't know the source of the contamination, which also has shown up in some surface ponds or creeks.

DSCF4378 Water Pollution Rules

A top state environmental regulator told state lawmakers Wednesday, February 10, 2016,  that they should consider easing some water pollution rules because it's unclear whether they're working as intended. Laura Leslie of WRAL reported on the appearance of Deputy Environment Secretary Tom Reeder before the  Environmental Review Commission that the Department of Environmental Quality is looking at regulations that govern buffers around smaller streams, as well as laws requiring the reduction of nutrient runoff into Falls and Jordan lakes. The state has been directed by federal regulators to reduce runoff into those "impaired" lakes because they exceed limits for "total maximum daily load" of nutrients such as nitrogen and phosphate, leading to high levels of chlorophyll-A, a type of algae. More stringent rules for Falls Lake are due to take effect in 2021, and the Jordan Lake Rules have been largely delayed since 2007. Mr. Reeder said local governments and private citizens have spent millions to reduce pollution from "point sources" such as water treatment plants as well as "non-point sources" such as runoff from residential or agricultural property. But he said there's no clear evidence that the efforts are having the intended effect.

Mr. Reeder presented data from the Neuse and Tar-Pamlico basins that show little change in phosphorus and nitrogen levels after runoff and buffer rules were implemented. He also referred to a General Accounting Office report showing that 80 percent of impaired water systems around the country are struggling to meet required reductions in nutrient runoff. "I don't know if the technology exists today to actually resolve these problems," he said. He recommended that lawmakers rethink the 50-foot buffer requirement for smaller "intermittent" streams, which do not always have water. State law requires that the first 30 feet of buffer from a stream's edge be left largely in its natural state. The next 20 feet can be "managed vegetation." Mr. Reeder estimated the two basins together include more than 10,000 miles of intermittent streams. The buffers, he estimated, add up to about 98 square miles in the Tar-Pamlico basin and 137 square miles in the Neuse basin. The regulator told the panel that buffers are "very controversial" and have "caused a lot of heartburn" for property owners.

As  a longtime advocate for buffers, I raised the issue that, since their implementation, the state hasn't seen any more of the fish kills it witnessed in the Neuse River in the 1990s. I asked Mr. Reeder whether changing runoff regulations would make the state non-compliant with the federal Clean Water Act. "What could the EPA do, anyway, because it's not working anywhere?" Mr. Reeder said. "If they could show us an example of what works, I'd be happy to do that. The EPA doesn't know what to do either." Groups representing local governments and businesses spoke in favor of changing water rules. Upper Neuse River Basin Association director Forrest Westall urged lawmakers to reconsider the science behind the Falls Lake Rules, which require what he called "extraordinary" reductions in runoff nutrients. Although he said progress has been made, he added that buffers "have caused a lot of friction in our citizens over use of land." Director Westall encouraged the panel to seek a change in the lake's federal regulatory standard to its "intended use." "That lake is being fished today, it's being swum today, it's providing drinking water to a half-million people -- it's meeting its intended uses," he said. But environmental advocates warned against easing the rules. Tom Bean with the North Carolina Wildlife Federation compared relaxing the rules to taking off a seat belt while driving, and Upper Neuse Riverkeeper Matthew Starr called Mr. Reeder's conclusions about the Neuse and Tar-Pamlico basins "grossly inaccurate." "What he's not including is the [nutrient] loading from the hog industry and the poultry industry. What would that look like if the stormwater controls weren't there?" Mr. Starr said.