New state law limits coal ash cleanup

For more than a year, Arden resident Jeri Cruz–Segarra has been using bottled water supplied by Duke Energy for drinking and cooking. She and her husband live on 7 acres just outside the Asheville city limits — and directly across the French Broad River from Duke’s Lake Julian power plant. “I can see the plant from my back deck in the winter when the leaves are down,” she explains.

Last year, Cruz-Segarra received a letter from the state Department of Environmental Quality offering to test her well water. She agreed and, soon after, received another letter — this one not from the DEQ but from the Department of Health and Human Services — advising her not to drink the well water. This spring, however, another letter arrived from HHS, reversing the previous recommendation and declaring her water fit for consumption.

On June 14, Cruz-Segarra shared her frustration over the mixed messages with Asheville City Council members. In light of the conflicting letters, and the fact that a nearby neighbor’s well was found to contain hexavalent chromium (a known carcinogen) at a higher concentration than the limit set by state epidemiologists, Cruz-Segarra said she no longer trusts that her water is safe to drink. She believes that leakage from coal ash ponds at the Lake Julian plant has contaminated the area’s groundwater, and she wants the utility to pay for extending city water service to the seven homes on her street.

Too strict?

Xavier Boatright, an environmental justice organizer and researcher for the nonprofit Clean Water for North Carolina, spoke to Council on behalf of Tom and Leona Rice, who also live just across the river from the plant. Tests of the Rices’ well water, he said, revealed hexavalent chromium significantly above what was then the state’s acceptable level. The Rices’ son, who lived at home with his parents, died of cancer in 2014, and Tom Rice has advanced stomach cancer.

Lifting the gallon jugs of bottled water provided by Duke Energy has been difficult for the couple, who are in their 80s, noted Boatright, adding, “It’s wrenching to see them live this way.” Jade Dundas, Asheville’s water resources director, has told the Rices it would cost less than $10,000 to run water to their home, Boatright said at the Council meeting.

On May 18, however, Dr. Randall Williams, the state health director, said he believed HHS had set too strict a standard when it pegged the safe level of hexavalent chromium at 0.07 parts per billion in drinking water. The state standard for total chromium (which exists in various forms) is now 10 ppb. Williams’ comments came during a deposition to the Southern Environmental Law Center; the nonprofit is a party in an ongoing lawsuit over coal ash-related water contamination.

According to state epidemiologists, the 0.07 ppb number represents a one-in-a-million chance of getting cancer — a widely accepted standard for determining acceptable risk.

The U.S. Environmental Protection Agency has been considering whether to revise its maximum contaminant level for total chromium in drinking water. A decision had been expected by the end of last year, but none was made, and it’s unclear if or when that will happen. Lacking either a federal drinking water limit or a state groundwater standard for the metal, state epidemiologists developed the 0.07 figure.

At the June 14 meeting, Council member Julie Mayfield, who is co-director of the environmental nonprofit MountainTrue, told Cruz-Segarra and Boatright that a bill addressing their concerns was working its way through the North Carolina General Assembly. A previous bill dealing with those issues had been vetoed by Gov. Pat McCrory on June 6, sending lawmakers back to the drawing board.

“This legislation is not good for the environment or for the rule of law in North Carolina,” McCrory said about the bill he killed, adding that it “lacks a firm deadline to connect well owners to alternate water supplies.” The governor, a former Duke Energy executive, also objected to keeping oversight of coal ash cleanups under an appointed commission rather than the Department of Environmental Quality.

Sounding the alarm

But as the legislative session was winding down in the last days of June, environmental nonprofits, including MountainTrue, sent out urgent messages informing constituents and the media about provisions in the revised legislation that would weaken oversight and allow some coal ash sites to be left in place indefinitely. In a June 28 media release, Mayfield blasted House Bill 630, which the governor signed into law on July 15.

“The General Assembly has abdicated its responsibility to clean up North Carolina’s coal ash and protect us from the ill effects of toxic pollutants,” said Mayfield, calling the new rules “a betrayal of the people of North Carolina.”

In a press release announcing the signing, however, McCrory said: “This new law is a significant improvement over the bill I vetoed. The previous bill only required a plan to provide water connections with no deadline for actually installing them and it had no requirements for fixing dams or recycling coal ash. The new law protects the environment while also protecting consumers from higher electricity prices.”

Back in January, Rep. Chuck McGrady told Xpress, the state Supreme Court upheld the governor’s challenge to the method for appointing members to North Carolina’s Coal Ash Management Commission. In response, McGrady — a Republican who represents Henderson County — drafted a workaround bill that created a new appointment procedure for the commission and required Duke Energy to pay for running water lines to homes close to coal ash ponds. That’s the bill McCrory vetoed.

Legislators then drafted HB 630, which gives the DEQ authority over coal ash cleanups.

The latter bill, McGrady wrote on his blog, “was good in that it provided water to households adjoining the coal ash basins and had a strong provision dealing with beneficial reuse of coal ash. The bill was unsatisfactory … because it will result in all of the largest coal ash basins being classified as low risk and likely capped in place. Having no confidence in the Department of Environment Quality (sic), I voted against the bill, although it passed by a vote of 82-32,” continued McGrady, who spearheaded state coal ash legislation after the massive Dan River spill in 2014.

Since the coal ash ponds at Lake Julian are classified high-risk, McGrady explains, the cleanup there will continue, and water lines will be extended to property owners within a half-mile of the plant. But the law, he notes, “does not provide water if you are across the other side of a river or on the other side of a lake. No one really believes that water would flow under a river to get to the other side.”

According to that argument, the contamination that the Cruz-Segarras and their neighbors are concerned about must come from some other source. Hexavalent chromium does occur naturally in water supplies, and McGrady points out that, in the past, coal ash was commonly spread on fields and used as construction fill.

Duke Energy spokesperson Danielle Peoples says the utility is committed to complying with the law, noting that even before the governor signed the bill, Duke had started researching the infrastructure that will be used to connect qualifying residents to city water. But that requirement, she emphasizes, doesn’t apply to either the Rices or the Cruz-Segarras, who live across the river from the coal ash ponds.

Facts and fears

On July 7, Peoples and fellow Duke staffer Jason Walls visited the Cruz-Segarra home along with someone from the SynTerra consulting firm to discuss the results of a recent test of the family’s well. According to Peoples, the utility is still conducting studies to get a complete picture of “the entire network of groundwater conditions in the area.” Until that’s done, she explains, “We can’t share conclusive results.” But multiple tests of the Cruz-Segarras’ well, Peoples emphasizes, didn’t reach the state’s initial 0.07 parts per billion threshold for hexavalent chromium, let alone the current 10 ppb standard.

Ricardo Cruz–Segarra says the representatives told him that geologic studies show groundwater in the area flowing away from, not toward, their property. He says Duke wouldn’t commit to annual testing to monitor the well or to paying to connect Cruz-Segarra’s property to city water lines.

Those actions, notes Peoples, are not required by the new law.

According to a fact sheet on Duke Energy’s website, “DEQ well data show these same substances occur naturally at varying levels across the state away from ash basins.” The fact sheet also points out that the ash basins are “relatively shallow” and that “The concentrations of hexavalent chromium and vanadium are typically higher the deeper you sample into bedrock. These suggest the source is natural geology.”

But Jeri Cruz-Segarra says she’s not convinced. Just down the street, her neighbors’ well was found to be contaminated with hexavalent chromium, and three people who lived there — Mark and Sissy Sumner plus another man — all died of cancer, Cruz-Segarra reports. Her two dogs, she notes, also died of cancer recently.

Class-action lawsuit?

The new legislation allows property owners across the river from Duke Energy to make the case that the contamination in their wells is related to the coal ash ponds, says Mayfield. And while proving such a connection “does seem daunting in some ways,” she concedes, professor Avner Vengosh of Duke University has developed a way to compare markers in coal ash ponds with well water constituents to determine whether the ponds are the source of the contamination.

“I don’t know how much that testing costs or how difficult or onerous it is,” cautions Mayfield.

Peoples, however, says, “It gets a little complicated if everyone who has an exceedance is trying to attribute that to us.” The company, she continues, understands that “This issue has been confusing for plant neighbors, and that is why we are making Duke staff accessible to those who have questions.”

Asked whether and for how long Duke Energy would continue providing bottled water to residents across the river from the Lake Julian plant, Peoples said she had no additional comment, reiterating that the company will obey the law.

But Katie Hicks of the nonprofit Clean Water for North Carolina argues that “There should be some type of independent oversight of the groundwater modeling and other investigations that Duke Energy is performing. It would make sense to have someone other than the potentially responsible party review the conclusions of those studies and the proposed actions based on them.”

And to Ricardo Cruz-Segarra, the issue seems straightforward enough: “This situation was caused by Duke Energy, and they should take responsibility to correct it,” he asserts. The Cruz-Segarras are considering banding together with neighbors to bring a class-action lawsuit that would compel the company to pay for new water lines.