• Pain in the Ash: Citizens in Virginia and North Carolina Seek Protection from Hazardous Coal Ash Waste
  • January 4, 2018 | Author: Rosa D. Forrester
  • Law Firm: Goldberg Segalla LLP - Newark Office
  • Power companies in North Carolina and Virginia are currently battling with their neighbors over the best method to store coal ash waste.

    Coal ash, also referred to as coal combustion residuals, is the resulting waste following the burning of coal in coal-fired power plants. The ash is often disposed of in surface impoundments, landfills, and nearby waterways. When improperly disposed of, coal ash is hazardous to the surrounding environment, as it contains contaminants like mercury, cadmium and arsenic. In the case of a coal ash spill, these contaminants can pollute waterways, ground water, drinking water, and the air.

    Recent coal ash spills had catastrophic consequences in their surrounding environments. In 2014, a pipe ruptured at a Duke Energy plant in North Carolina, spilling miles of coal ash into a river. This spill prompted the EPA to issue a Final Rule on Disposal of Coal Combustion Residuals on December 19, 2014, effective on October 4, 2016. These regulations provide a “comprehensive set of requirements for the safe disposal of CCRs, commonly known as coal ash, from coal-fired power plants. The rule establishes technical requirements for CCR landfills and surface impoundments under subtitle D of the RCRA, the nation’s primary law for regulating solid waste.” The rules currently permit lining and capping of waste ponds, but many environmental groups feel that these regulations do not go far enough to protect the health and safety of citizens.

    On December 6, 2017, local environmental groups filed a lawsuit in the U.S. District Court for North Carolina’s Middle District seeking an order requiring Duke Energy, the utility involved in the 2014 spill, to remove “all coal ash from the Belews Creek basin within a reasonable amount of time and store it in an appropriately lined, industrial solid-waste landfill away from surface waters and separated from ground water.” Duke Energy had been planning to close its coal ash basins by installing caps with impermeable seals. This approach is less expensive and time intensive, but does not physically remove the ash from the area.

    In early 2017, Virginia’s Dominion Energy was mandated by the General Assembly’s “Senate Bill 1398” to commission a report regarding the best method to handle its output of coal ash waste. The report was released on December 8, 2017 and not surprisingly, the group’s experts found that it would be both safe and cost effective to cover the ash ponds rather than recycling the material or moving it to local landfills. The report indicates that closure by removal could take 11-27 years, and up to $1.34 billion dollars.

    Despite these findings, environmental groups find that covering and sealing the waste ponds to be insufficient, as lined basins or ponds still have potential to leak into local water sources. The groups want the materials removed from the area, away from water sources that could be further contaminated. In this instance, the Dominion report does not recommend one specific approach. However, it appears that should Dominion decide to cap the ponds rather than remove the waste entirely, Virginia environmentalists may follow in North Carolina’s footsteps, and institute litigation to achieve their desired result.