Citizens should be outraged at several things involving the Duke Energy coal ash issues, according to the speaker for opening night of Watershed NOW’s Creek Week.
Frank Holleman works as the senior attorney for litigation with the Southern Environmental Law Center, the organization which has been leading the effort to clean up the unlined pits used to store toxic coal ash in North and South Carolina by three major utility companies, including Duke Energy.
Roughly 25 people gathered at Elkin Presbyterian Church Thursday night to hear Holleman share his story of the law center’s efforts, events leading up to the coal ash spill on the Dan River, and what citizens can do now moving forward with the fight to continuing cleaning up coal ash storage areas.
He explained prior to working with North Carolina’s coal ash pits, the Southern Environmental Law Center was successful in South Carolina getting its two major utility companies to agree to move their coal ash to lined pits to keep the harmful toxins created when coal is burned for electricity from seeping into the nearby waterways used for drinking water.
“Coal ash is created when you burn coal in a concentrated manner, and it creates toxins including lead, mercury and arsenic, and other things you don’t want in your water,” said Holleman. “They store millions of tons of coal ash in unlined pits, holes in the ground, directly next to our waterways and drinking reservoirs.”
Those pits, he explained, are held back only by dykes made of earth, which leak. “This is not a complicated issue. That is no way to store any waste, much less industrial waste,” he said. “If you and I tried to do it with simple waste like compost, we’d be arrested.”
An initial spill in Kingston, Tennessee, occurred when one of the dykes broke and billions of gallons spilled, Holleman said. But efforts and promises by officials in Washington, D.C., to regulate the coal ash waste became “gridlocked,” he said.
In the southeastern portion of the United States, “we have a double dose,” of coal ash pits, Holleman said. “The [Environmental Protection Agency] says over half of our toxic pollution in reservoirs comes from these sites.”
With the state and federal governments not regulating or cracking down on coal ash waste sites, Holleman said the law center decided to look into it. “You don’t have to have a Harvard law degree or be a rocket scientist to figure out something has to be illegal. They leak, and that’s illegal.”
So in South Carolina, the law center began enforcing the law. They filed suits against the utility companies. He said an acceptable amount of arsenic is 10 parts per million, but in the pits in South Carolina, it tested at 2,000 parts per million.
The first utility company, S&G, agreed to put the coal ash waste in lined landfills at all of their sites. “There was a 90 percent drop in the percent of arsenic by just removing 30 percent of the coal ash,” Holleman reported.
The Sandy Cooper utility company is owned by the state of South Carolina, he explained. They had a million and a half tons of coal ash stored in a swamp in the middle of Conway, South Carolina. “Here it’s as much as 300 times the legal limit at 3,000 parts,” Holleman said.
So the law center fought them. They sued them twice, and Sandy Cooper officials said they would store it in a concrete vault. “We call it a mausoleum,” he said.
Law center representatives got the backing of the Conway city council and mayor in the form of a resolution which essentially said, “We love you Sandy Cooper, but you’ve got to get your ash out of town,” Holleman said.
Residents in the community agreed and Sandy Cooper agreed to clean up its Conway site as well as its other coal ash sites. “They’re doing a great job of removing it,” he said.
Then came the effort on getting the third company, Duke Energy, to clean up its coal ash sites. “We started with Asheville and Charlotte,” he said.
At one site 3 million tons of coal ash is stored by Mount Island Lake, a drinking reservoir for 1 million people, Holleman explained. “Officials of Mecklenburg say, if the dyke breaks, they have no plan A, or plan B.”
So the law center sent 60 day notices under the Clean Water Act asking Duke Energy to clean up the sites and telling them the SELC was going to start enforcing the law.
Southern Environmental Law Center officials were stunned by what happened next. “The first parable, if a law abiding person reports law breaking to law enforcement, then law enforcement works with the law abiding person to address the illegal activity,” said Holleman.
But that’s not what happened in North Carolina, he said. “When we began enforcing the Clean Water Act, virtually immediately the lobbyists and lawyers for Duke began meeting with state officials,” explained Holleman.
In 2013, he said, the state and Duke Energy collaborated and came up with a plan for the state to sue Duke Energy “to preempt us, so state law enforcement would enter into an agreement with Duke Energy.”
Holleman said there are actual public records, emails between the state environmental agency and Duke Energy where the state asks Duke officials, “How do we describe you in our suit?”
Fortunately, he said, the court system does still work in most cases. And when the state’s suit got into court, a judge “asked citizens, us to intervene.”
Because it involved the Clean Water Act, the agreement between the state and Duke Energy had to be put out to the public for comment. “Five thousand people commented against the suit, with one Duke employee commenting in favor of it,” said Holleman.
At that point, the Southern Environmental Law Center filed its third suit against Duke for its Wilmington site. Holleman said a Duke official pointed out in court they have 14 sites, so 30 days later, the state filed suit on the other 14 sites to preempt the SELC from getting to those.
“There was a problem with this strategy, you can’t sue someone for obeying the law,” said Holleman. “So the court turned it over to the state department who had to document all the violations at the sites.
“The state said under oath it is a threat,” he said of the coal ash sites.
That was in August of 2013, and for six months, the state proceeded to do nothing, Holleman said.
“On Super Bowl Sunday, Feb. 22, 2014, the Associated Press broke the story of the Dan River spill. A pipe broke emptying coal ash into the river,” he reported. The issues with the pipe, he said, had been reported by Duke ground level workers to their managers on several occasions, and they’d asked for $5,000 to run a camera up the pipe, but Duke officials refused, Holleman said. “Duke and the state knew and had reportedly been warned about it.”
“The state did not do one thing in six months,” he said.
After the AP broke the story, a federal criminal ranger and the press flocked to the Dan River site, and “then the state ways we better withdraw the settlement,” he said.
Duke Energy has said it will remove the coal ash at the Dan River site and the three sites on which the law center filed suit.
“The first reason to be outraged is, in North Carolina unlike South Carolina, the state agency worked with the law breaker,” said Holleman. “The second reason, they said there was a problem and they did nothing.”
In May 2015, Duke Energy pleaded guilty 18 times at nine sites across the state to violating the Clean Water Act, and they were placed on nationwide criminal probation, he said, noting that is the equivalent of being locked up.
“Seventeen days later, the executives of the convicted American criminals were hosted at the governor’s mansion with the state head of the environmental organization and awarded,” Holleman said. “As a citizen of the United States of America, it offends me, it outrages me that a state’s law enforcement official would have a private dinner at the governor’s mansion hosting and honoring recently convicted criminals.”
The final reason Holleman gave for citizens to be outraged, “Your legislators passed the coal ash management act, it requires four sites to be cleaned. It does not include Buck Steam Station on the Yadkin River,” he said. “The statute required the state agency to rate each of the sites according to the risk no later than midnight on New Year’s Eve 2015.”
Holleman said on Nov. 30, 2015, the professional staff which had been overseeing the coal ash sites for 30 years presented their ratings. “They rated virtually every site as high risk, including Buck, several as intermediate and one or two as low risk,” he reported.
With the rating system, those determined to be high or intermediate risk are required to have the coal ash removed and put in a lined pit away from water, he explained. “Thirty days later, the political leadership on noon of New Year’s Eve, took the ratings and watered them down and didn’t rate any high, and the only ones rated intermediate were the three we sued.”
The Southern Environmental Law Center is going through public comment meetings now at sites across the state in an effort to continue its work toward ending the pollution from coal ash, Holleman said. A meeting is scheduled for March 22 at 6 p.m. about the Buck Steam Station, which sits on the Yadkin River, at Catawba College, Center for Environment Building, Room 300, 2300 W. Innes St., Salisbury.
For those unable to attend the public meeting, Holleman said written comments can be sent by April 18 to [email protected] or N.C. Division of Water Resources, Groundwater Protection Section, N.C. Department of Environmental Quality, Attn: Debra Watts, 1636 Mail Service Center, Raleigh, NC 27699-1611.
According to a letter encouraging the public to attend the comments meeting, “Over 293,000 people rely on drinking water intakes downstream in the Yadkin River watershed from leaking, unlined coal ash pits at Duke Energy’s Buck site. It’s past time for Duke Energy to remove its coal ash to safer dry, lined storage here and at all of the polluting, unlined coal ash pits near communities and families across North Carolina.
“The state cited Duke Energy for broken, failing corrugated metal stormwater pipes at Buck that are cracked and leaking, the same problem that caused the Dan River coal ash spill.”
“There are reasons to be positive,” Holleman said. “We still live in a democracy. We go into court on behalf of small groups like the Catawba Riverkeeper or the Yadkin Riverkeeper. We’re in big court against some of the biggest law firms in the country and the richest enemies every to exist in the history of the world, and we’ve not lost a single motion. The court’s ruled for us every time.
“We stopped the best laid plan for Duke and the state,” he said. “This is a great country, and it is very discouraging when we see law enforcement act like the state Department of Environmental and Natural Resources did, and when you see a rich company not step up and do the right thing.
“The moral of water resources in America … they cannot be protected unless you protect them,” said Holleman. “You cannot count on the government to do the governing for us. We can protect these resources. If we do this right, we will have protected North Carolina and South Carolina reservoirs from the most toxic pollution going forward.”
When he ended his story, a short question and answer session was held, and one of the local residents attending asked what citizens can do to help.
“Duke Energy responds to public outrage, legal leverage and politicians, your local legislators,” Holleman responded. “A huge crowd at these hearings will get people’s attention.”
He said the issue between North and South Carolina wasn’t a partisan issue, because both are Republican states. Instead it was political in North Carolina. “The utilities are political beings, they have the most valuable political ticket – our governments give them a legal monopoly and guarantee them they’ll make a profit,” said Holleman.
Another resident asked if the cost of cleaning up the coal ash would fall back on consumers. “In South Carolina, the two utilities cleaned up every site. They both said they were going to clean and not affect the rates,” he answered. “Duke has said if they make us do it it’s going to increase rates to scare people.”
Holleman said it would be up to the state’s Utilities Commission whether rates are allowed to increase, but he added, “It’s not throwing money away.
“The Dan River is the second smallest Duke site, and look at what it’s going to cost them,” he said.
“But we don’t know that answer yet,” he said of the possibility of rate increases.
“We don’t want them to be fined or convicted of crimes. We just want them to clean up the coal ash,” said Holleman, who added in South Carolina, state elected officials passed a law to improve the standards of regulating coal ash, while in North Carolina, “the government has been resistant.”
Other Creek Week events for Watershed NOW include a celebration and update of the past year’s projects Tuesday at Brushy Mountain Winery with music by Bandit’s Roost, and a stream restoration project at 9 a.m. at Elkin Municipal Park Thursday.
Wendy Byerly Wood may be reached at 336-258-4035 or on Twitter @wendywoodeditor.