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Dissecting the McCrory administration’s defense of the new state coal ash law

Secretary Donald van der Vaart [1]
Secretary Donald van der Vaart (Image: NC DEQ)

A detailed look at what DEQ officials claim and what they leave out in their new video

The state’s coal ash crisis is under control.

That’s what the North Carolina Department of Environmental Quality wants viewers to believe, in a recently released a five-and-a-half minute video [2] on the agency’s website and YouTube channel.

In the video, Secretary Donald van der Vaart [3] and Assistant Secretary Tom Reeder [4] tout what they view as protective provisions in the new coal ash law [5] that Governor McCrory signed earlier this month. However, while the presentation is in many ways factual, it’s not necessarily truthful. Omissions of fact, slippery language, and industry jargon combine for misleading reassurances that North Carolinians are protected by the full force of the law.

Van der Vaart plays the good cop, telling viewers that the law establishes firm deadlines for providing water connections to households and businesses with wells contaminated by chemicals and compounds found in coal ash. What van der Vaart doesn’t say is that Duke Energy has as late as the fall of 2019 to connect those households, and that he, as Secretary, has the power to extend deadlines to the utility.

Reeder, though, is the bad cop. His task is clearly to vilify the previous Democratic administrations, faulting them for giving Duke Energy a pass. But Reeder, an 18-year-veteran of the department, served under those administrations: Governors Jim Hunt, Mike Easley and Beverly Perdue. He worked as an engineer in the divisions of Air Quality and Water Quality for 10 years before being named the Director of the Division of Water Resources in 2008.

Under former DEQ Secretary John Skvarla, Reeder had been in charge of the Division of Water Quality for eight months when Duke Energy’s coal ash pond ruptured, spilling at least 82,000 tons of coal ash and 27 million gallons of contaminated water into the Dan River.

Below is a transcript of both van der Vaart’s and Reeder’s speeches, annotated with additional important information that they excluded.

The van der Vaart segment

DvdV: “Hello, I’m Donald van der Vaart, Secretary of the Department of Environmental Quality. I’m here to talk to you about the action North Carolina has taken to protect the environment, public health, and the communities that have been affected by the long-ignored problem of coal ash.”

NCPW: As DEQ secretary, van der Vaart has the power to allow Duke Energy to miss its deadline to remedy impoundments and coal ash residue. The utility can blow its deadline if for some reason, it can’t use the “best available technology found to be economically reasonable” and it would produce a “serious hardship” without an equal or greater public benefit.

Translation: If it’s too expensive.

DvdV: “Since 2013, North Carolina has become a national leader in cleaning up coal ash. Now Governor McCrory has signed a law that provides permanent drinking water to well owners, requires that dams around coal ash ponds be repaired, and mandates the recycling of coal ash.”

NCPW: The Tennessee Valley Authority began converting [6] its wet-ash ponds to dry-ash in 2009.  Permanent drinking water connections in North Carolina aren’t required until at least 2018, and with an extension approved by the Secretary, late 2019. Annual dam inspections start as late as 2018.

Some ash will be stored in impoundments, even though the public requested [7] alternate disposal methods, like excavation.

DvdV: “Most importantly, the law provides people who live near coal ash facilities with certainty that they will receive permanent water supplies.”

NCPW: In 2015, DEQ provided bottled water to 240 households whose well water was contaminated. A year later, under pressure from Duke Energy, DEQ and the Department of Health and Human Services reversed the no-drink order. DEQ designated households within a half-mile downhill as potentially eligible for new water supplies. However, in Cleveland County, contamination has been found beyond [8] the half-mile boundary.

DvdV: “The new coal ash law is a significant improvement to the bill the Governor vetoed in June, the veto the General Assembly didn’t override.”

NCPW: McCrory’s primary motivation for vetoing [9] SB 71 was his belief that the legislature overstepped constitutional boundaries by reserving the right to appoint members to the Coal Ash Commission.

The commission ostensibly would have been the oversight body for coal ash disposal. DEQ now has complete control over enforcement and oversight. McCrory, a former manager at Duke Energy, appoints the DEQ Secretary.

DvdV: “The previous bill failed to set a deadline for connecting water supplies. It disregarded repairs needed at coal ash dams. And it lacked a requirement for coal ash to be recycled. The bill the Governor signed today establishes firm deadlines for providing water connections. It requires that all dam repairs to be fully completed. It requires coal ash to be processed for recycling. It provides for at least 30 years’ of water monitoring. And it provides for cost-effective solutions for closing ponds when certain conditions are met.”

NCPW: SB 71 would have classified all coal ash sites as either intermediate- or high-risk. Now most of the sites are designated as low-risk, and aren’t required to close until 2029.

Three coal ash sites deemed intermediate-risk in Wayne, Chatham, and New Hanover counties won’t be closed until 2024. Duke can receive [10] a year’s extension in providing permanent water to residents — as late as October 2019.

DvdV: “The law now requires that half of all facilities to be excavated. Only if Duke Energy proves to our department that it installed water supplies and made necessary repairs to its dams, can coal ash ponds at the remaining facilities be closed under federal regulations, which could include cap in place.”

NCPW: Van der Vaart fails to mention that the law also limits local governments’ ability to regulate coal ash facilities. Local ordinances can’t be more stringent than state or federal law, and are “invalidated and unenforceable.”

DvdV: “’Cap in place’ is a closure method where coal ash ponds are safely drained, covered with a waterproof liner, and groundwater near the facility is monitored for decades. The cap in place option minimizes impacts to electricity rates, is allowed under federal law, and will be widely used in other states.”

NCPW: Cap in place is facing legal challenges in other states, including Virginia, where the Southern Environmental Law Center is suing [11] Dominion Chesapeake Energy over its plan to bury ash in unlined ponds.

Cap in place poses many hazards and unknowns. Since the ponds are unlined, groundwater can move horizontally though the pond and carry contaminates beyond the boundary [12]. This happened at a Duke Energy pond at Belews Creek in Stokes County.

DvdV: “North Carolina has made tremendous progress in cleaning up coal ash since 2013. We were the first state in the country to order all coal ash ponds be closed. We issued record fines for environmental violations. We required Duke Energy to dig up coal ash facilities where needed. And we’ve overseen the safe clean-up of more than 4 million tons of coal ash.”

NCPW: DEQ originally fined Duke Energy $25 million, but a subsequent settlement reduced the amount to just $7 million [13]. Duke is also appealing another $6.6 million fine. By comparison, the federal government fined Duke $102 million [14].

Duke plans to dump three million tons in an abandoned brick mine in Lee County — across from a mobile home park. Another 12 million tons [15] are being disposed [16] in a lined former clay mine in Chatham County.

DvdV: “We look forward to building on the progress we’ve made since 2013. And removing once and for all any threat coal ash may posed to the environment and public health. Thank you.”

The Reeder segment

Reeder21 [17]
Assistant Secretary Tom Reeder (Image NC DEQ)

TR: “When we talk about North Carolina’s leadership over the last three years in cleaning up coal ash, it’s important to know how we got here. For many years North Carolina regulators ignored the dangers of coal ash, even though it had been stored here since the 1950s. What we’ve learned about the decades of inaction and neglect by previous administrations is alarming. In 2007, a previous administration changed the landfill law and specifically exempted coal ash ponds from many environmental requirements”

NCPW: Reeder [18] has been with DEQ for 18 years, during the time he charges that regulators under Democratic administrations ignored the dangers of coal ash. He was also in charge of the water quality division when the Dan River spill occurred in 2014.

The 2007 legislation, Senate Bill 1492 [19], did allow for landfills specifically for coal ash, but also required them to have liners and to be constructed on the property where the coal-fired power plants were. It also required landfill applicants to deliver a response plan in case of leaks.

TR: “The massive spill in Tennessee was 100 times larger than the Dan River spill and should have been a wakeup call for North Carolina. Instead, in 2009, they exempted Duke Energy from having to show their coal ash ponds were structurally sound. If that information had been required, the corroded pipe under the Dan River could have been found, and the spill might have been avoided.

NCPW: It is true that some coal ash ponds were grandfathered and not required to submit application, certificate, or other materials in connection with the continued normal operation and maintenance of those facilities.

TR: “In 2010 federal regulations required leaks from all coal ash ponds to be evaluated. No action was taken in North Carolina for three years. In 2011, the state gave Duke Energy approval to use Sutton Lake, a recreational area in Wilmington, as a dumping ground for coal ash.”

NCPW: The rules were proposed in 2010, but it wasn’t until 2014 that the full force of the first rules went into effect [20]

TR: “But the most inexcusable example is how the state failed to deal with groundwater under coal ash ponds. For many years, Duke monitored its water under its coal ash ponds and found hundreds of samples that did not meet groundwater standards. But no action was taken. Not only did the prior administration fail to act, it actually created a policy instructing regulators not to fine Duke if the company said it would correct the problem sometime in the future.”

NCPW: The language in the 2011 policy says that “as long as the permittee is cooperative with the Division in taking all necessary steps to bring the facility into compliance, a notice of violation may not be necessary. The overall determination … will largely be based on the overall compliance history of the facility and the potential for impacts to human health and environment.”

The McCrory administration has performed no better. In fact, it has consistently maintained [21] that DEQ would be a “business-friendly” agency in issuing permits. Enforcement actions have dropped from an average of 567 a year under Governors Easley and Perdue, to only 268 under McCrory. DEQ also deployed the failed solar bees program at Jordan Lake, in lieu of additional regulations on development. The program was recently canceled.

TR: “Things changed dramatically in 2013. This administration has addressed the coal ash problem head on over the last three years. We’ve required the closure of all coal ash ponds. We’ve issued record fines for the groundwater contamination and the Dan River spill. Ash is being moved from five of Duke Energy’s 14 facilities coal and more than four million tons have been moved to safe storage.”

NCPW: The original fine of $25 million was reduced to $7 million. The storage off-site moves the contamination from Duke Energy property to rural and low-income areas. This problem is exacerbated by the fact that local jurisdictions are prohibited by law from regulating the disposal or operation of these landfills.

TR: “We have collected and analyzed two years’ worth of data on coal ash ponds to make sound, scientific decisions about how to close every pond in the state. As we continue the cleanup process, we’re conducting environmental justice reviews before permits are issued in communities where Duke Energy plans to store coal ash in new landfills.”

NCPW: A low-income neighborhood consisting of a trailer park is across the street from a proposed coal ash landfill in Sanford, posing environmental justice concerns.

TR: We are committed to protecting the environment and the public health from the long-ignored threat of coal ash.

NCPW: We will continue to monitor this issue closely in the weeks and months ahead.