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It's up to you to enforce coal ash regulations 

Oh, and Duke would appreciate if you turn the other cheek

A couple days after Duke Energy's Feb. 2014 Dan River coal-ash spill in Eden, North Carolina, I received an unsigned email. The subject line read simply, "Cancer."

A few weeks later, a frail, nearly bald woman welcomed a cameraman and me into her living room. I asked why she contacted me. "It's the only way I know to share my story," Laura Coleman* said. "I worry, especially when all the little kids are out there burying themselves in the sand, splashing in the water and, you know, it's getting into their mouths." Gesturing to her husband, Kenny*, sitting with the family dog in his lap, she said, "He had kidney cancer and I have lung cancer and neither side of our family has any type of cancer."

The couple used to frequent the sandbar at a bend in the Catawba River that collects sediment. Two of Duke's 14 North Carolina high-hazard coal ash ponds loom within rock-throwing distance. "We had no idea that was a coal ash pond," she told me. "It's a very green grassy area. It's pretty." A day at the sandbar is like being at the beach, she added. But after her diagnosis Laura admitted that she thinks, "Did this cause my cancer? I'll probably never know, but I wonder."

Kenny Coleman was nervous when we met, making a note on the video release form that I must contact him again before broadcasting our interview. He said he was worried people in their affluent Mountain Island Lake subdivision in northwest Charlotte would be upset with them for speaking to me, and they wanted to be able to sell their home and move closer to Laura's family with as little stress as possible.

A lot has changed since I interviewed the Colemans. The U.S. Environmental Protection Agency issued its long-awaited regulation last December — the Disposal of Coal Combustion Residuals from Electric Utilities (DCCR) rule. It becomes effective Oct. 19. The N.C. Department of Environmental Quality — formerly the Department of Environment and Natural Resources — also showed hints of getting serious about regulating coal ash. And, this past May, a Duke Energy lawyer whispered "guilty" more than 20 times to a federal judge, agreeing to a $102 million settlement and admitting to numerous violations of the U.S. Clean Water Act since 2010. But perhaps most importantly: hundreds of citizens have galvanized after many have been warned not to drink their well water.

When I met the Colemans a year and a half ago, the EPA was still finalizing a new coal ash regulation. In the end, it's more like a preferred preference than a regulation, calling coal ash a solid waste (think household trash) instead of hazardous waste, and leaving enforcement up to states and their citizens. So, ultimately, it's now up to us to make the state enforce a federal law through lawsuits. However, while environmentalists didn't get the hazardous waste label they'd hoped for, the new law does call for some things they wanted like the closure of ash waste ponds that fail to meet structural standards, more groundwater monitoring, the cleanup of unlined ponds that are contaminating groundwater and liners for new ponds and restrictions on where they're located (not in wetlands or earthquake zones). The DCCR rule also encourages the "beneficial reuse" of coal ash as an ingredient in other products, like concrete.

The EPA collected public comments at eight regional meetings nationwide while preparing the regulation. The Charlotte meeting in 2010 lasted for 13 hours, most of which was standing-room only. EPA officials said they collected nearly half a million public comments before issuing the DCCR rule.

Testifying before Congress in Feb. 2013, a year before the Dan River spill, state Rep. Pricey Harrison (D-Guilford) was asked by U.S. Congressman David McKinley (R-WV), "Are you saying that North Carolina doesn't have the expertise to handle coal ash?"

"Yes, sir, that's been my experience with working with our agencies and working with the legislature," Harrison said between interruptions. "I don't feel that we have good regulations in place."

But nearly three years later, do we now? Gov. Pat McCrory's administration would like you to think so, but after DEQ's lawsuit settlement with Duke Energy last month — basically a cover-your-ass move by the state in an effort to both get out of court and prevent future lawsuits — that's questionable. A fine for $25.1 million for one plant near Wilmington was reduced to a $7 million settlement for 14, or half a million per site, that could prevent future litigation.

Following the Dan River spill, the N.C. General Assembly passed the Coal Ash Management Act of 2014 that requires Duke to close all of its high-hazard coal ash pits by the end of 2019 and the rest by 2029. The law also created the N.C. Coal Ash Management Commission. McCrory, known for his close relationship with former employer Duke, then argued that he should have been the one to appoint the commissioners, not the legislature. In May, a judge agreed and the commission's work halted. Its website still reads "under construction," but what is there is largely incorrect. Five months after the judge's order, I asked the governor's office if McCrory plans to create his own commission. They didn't respond.

The N.C. DEQ, the agency that should enforce EPA's rule, has been squirrelly on the coal-ash issue for years, even before McCrory was elected. But then his original appointments for DEQ's top positions were John Skvarla, a man who believes oil is a renewable resource, and Mitch Gillespie, a known DEQ-hater. So, it's amusing — and not in a funny way — when the department crows about being on top of things, because they aren't.

Duke Energy has made some progress on the closure of many of its high-hazard pits, as at its Riverbend plant, located a dozen miles from Uptown and with waste ponds near the sandbar on the edge of Charlotte's main drinking-water reservoir. Crews will haul that ash to landfills in Georgia, Virginia, and Lee and Chatham counties in North Carolina once the necessary permits come through.

Both the state and Duke insist they're basing their coal-ash related decisions on sound science, but that's hardly comforting when you realize the leading scientific experts in the state haven't heard from them. When I asked DEQ if it sought guidance from a well-known environmental scientist at Duke University, communications director Crystal Feldman said, "We welcome his input. We welcome input from any source as long as it can be scientifically proven."

I asked the scientist, Dr. Avner Vengosh, if anyone from the state has contacted him. His response? Laughter. "Of course not. Why would you expect them to call?" he asked. Because Vengosh honed a test that can determine whether or not contamination in water is coming from a specific pit of coal ash, and his peer-reviewed study about coal ash's radioactivity was recently published in a journal called Environmental Science & Technology — that's why. He's an expert on the topic who's researched coal-ash pollution since the massive Tennessee Valley Authority spill that knocked homes from their foundations when an earthen dam burst in the middle of the night just before Christmas in 2008.

I also asked Dr. Dennis Lemly, a scientist at Wake Forest University and for the U.S. Forest Service, if anyone from the state has asked him about his work. He's been researching coal-ash waste near Duke's Belews Creek plant since the mid-1970s and says he has "made a career out of counting dead fish." No one has reached out to him either, he said, but like Vengosh, he's willing to work with the state and Duke.

In DEQ's defense, it's not uncommon for government agencies to rely on industry for engineering and scientific help — after all, industry has the swankiest labs and they're well-staffed. That's in sharp contrast to beleaguered environmental departments across the country, including the EPA, which is under frequent attack from the GOP-led U.S. House of Representatives. Since 2011, the House has six-times passed legislation that would prevent the EPA from properly regulating coal ash. The bills never made it to the president.

When I asked Duke Energy if they've reached out to Vengosh I was directed to a coal-industry lobbyist, Edison Electric Institute, for "perspective on this." Duke says it has conducted studies of its own that proves radioactivity isn't a concern.

That's why, Vengosh said, "It's important that when we work on a topic, we publish it in peer-reviewed journals. The two studies aren't white papers or opinions," he said. "It's procedure that would be very difficult for anyone to reject without giving scientific evidence to un-prove it."

Duke Energy does work with scientists at UNC Charlotte's National Ash Management Advisory Board, but guess who funds that? Duke Energy. That doesn't mean the board isn't doing good work, but the arrangement is awkward, especially since my six years of reporting on this topic have left me with the impression that industry only backs research that supports its position.

That's why we may never know if Laura Coleman's cancer or your mother's Alzheimer's disease or your child's learning disabilities are coal-ash related – there's little money for that sort of research even though the federal government has long known that many of the elements found in coal ash cause a litany of health problems.

For decades, the coal industry has produced engineering and groundwater monitoring reports that it shares with the state. However, until Harrison's legislation passed in 2010, the company's manmade dams were exempt from the Dam Safety Act and were only being inspected every five years. Now they're inspected every two years, and once the EPA stepped in after the TVA disaster we learned that North Carolina has more high-hazard coal ash ponds than any other state, all now owned by Duke.

A "high-hazard" rating means that should the dam fail, people might die and the economic impact would be tremendous. Or, as Mecklenburg County's water quality program manager, Rusty Rozzelle, told us last year, "It would be the biggest catastrophe Charlotte's ever seen" if the coal-ash dams on the edge of the city's main drinking water source failed.

Since the TVA disaster, Duke Energy has basically asserted, "We've got this. Don't worry." Frankly, I, too, believed they would step up their game, and there was evidence they had. In 2000, the coal industry made a deal with EPA that it would self-monitor if the agency could avoid regulation. But it was eight years before the company installed monitoring wells at its Riverbend plant. The ash waste pits at Riverbend are so close to the beach-like sandbar that it technically needs monitoring wells in the middle of Mountain Island Lake, but the state moved the compliance boundary to the far side of the lake. We now know, thanks to reports from more than 800 monitoring wells, that groundwater is contaminated near every single one of the company's coal-ash dumps in North Carolina.

Hundreds of people in North Carolina have received "do not drink" orders this year after water wells were tested by DEQ. Duke insists the contaminants discovered aren't due to coal-ash, according to its own testing, yet they began providing bottled water to residents anyway.

At a press conference in Raleigh last month, Belmont resident Larry Mathis said his water deliveryman told him the contract with Duke Energy to deliver water ends at the end of this year. Duke representative Paige Sheehan said, "At some point, we will discontinue the water service we are providing. No specific timetable has been set, but we will communicate directly with residents on the next steps and will provide them plenty of notice."

When I asked Catawba Riverkeeper Sam Perkins if he thought Duke should connect affected residents to municipal water he said, "At this point, I'm kind of impressed that Duke Energy hasn't made any motion toward that."

The city of Charlotte and Mecklenburg County have no control over the high-hazard coal ash ponds contaminating the city's drinking water reservoir, but local government could be on the hook for new water lines. Last month's settlement between DEQ and Duke equates to a $500,000 fine for pollution at its Mountain Island Lake location instead of the original $25.1 million for groundwater contamination at its Sutton plant... where Duke is running municipal water to residents. Sheehan said cleanup costs could be passed along to ratepayers if the N.C. Utility Commission agrees to a rate hike when Duke asks for one.

It's up to North Carolina's voters and Duke Energy's shareholders to demand anything different. For environmentalists, who often represent citizens in pollution lawsuits, one bright spot is the EPA's just-updated rule that sets federal limits on the levels of toxic metals that power plants can discharge in their wastewater. Industry and environmentalists alike are awaiting the technical details of that update. In the meantime, it's clear the agency has found another way to take aim at coal pollution. Question is, how long before the U.S. House of Representatives aims back in this domestic water war?

For now, while lawyers on all sides work to find holes in the new regulations and settlement, many in North Carolina just want two things: clean water and to be considered as stake holders. That's what a group of activists asked for last month while announcing that they're uniting as "the Alliance of Carolinians Together (A.C.T.)."

As for Laura Coleman, she died at her home at age 56. During our interview she told me, "I'm not looking to sue anybody, that's not who I am. But if it came to light that (coal ash) did cause my cancer – if somehow there was some proof, then I want them to clean it up. That's what I want."

*Names changed to protect identities.

Info Leaks

Part of Duke Energy's probation agreement with the U.S. Department of Justice involves paying for a toll-free hotline and whistleblower website for those with information about potential environmental violations at any Duke Energy-owned plant. Duke must report the calls and their responses to the government. "It's not ideal," said Lisa Evans of Earthjustice, "but I think we have to live with the fact that Duke pays for the hotline."

The number is (855) 355-7042 and the website is duke-energy-env.alertline.com.

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