Academic journal article Duke Environmental Law & Policy Forum

Surveying the Threat of Groundwater Contamination from Coal Ash Ponds

Academic journal article Duke Environmental Law & Policy Forum

Surveying the Threat of Groundwater Contamination from Coal Ash Ponds

Article excerpt

I. INTRODUCTION

On February 2, 2014, approximately 39,000 tons of coal ash spilled into the Dan River in North Carolina. (1) "The coal ash poured out of a broken pipe ... turning [the river's] water into dark muck. It took nearly a week to stem the spill, which sent millions of gallons of sludge from a retired power plant into a river that supplies drinking water to communities in North Carolina and neighboring Virginia." (2) Afterward, surface water tests conducted by North Carolina state officials found levels of copper, aluminum, iron, and arsenic that all exceeded state standards. (3) It will cost over $300 million to clean this spill up. (4)

The Dan River spill made national headlines (5) and forced the North Carolina government into action. In particular, it was the impetus for the North Carolina legislature passing Senate Bill 729, titled the Coal Ash Management Act of 2014 (CAMA). (6) CAMA was touted by House Speaker Thom Tillis as the first legislation in the United States to address the issue of coal ash. (7) His comments echoed those of other CAMA supporters who called the bill "a 'first in the nation' bill that manages the removal of coal ash from 33 unlined pits" within the state. (8)

Coal ash ponds are not unique to North Carolina; utility companies around the nation use coal ash ponds and it is conceivable that "other states likely will consider and many may pass similar legislation" to CAMA. (9) While CAMA has been held up as "what undoubtedly will become a model that other states will follow," (10) this remains to be seen. This paper attempts to help answer this question by analyzing the positive and negative steps taken in CAMA, and by contextualizing the new law in North Carolina's broader scheme for groundwater contamination regulation.

Coal ash, or coal combustion waste, is the inorganic waste left after the coal combustion process and is comprised of fly ash, bottom ash, boiler slag, and flue gas desulfurization (FGD) sludge. (11) It contains chemicals that can cause cancer and organ damage, including arsenic, cadmium, hexavalent chromium, lead, mercury, and selenium. (12) If coal ash comes into contact with water, these hazardous chemicals can "leach out of the ash and contaminate drinking water." (13) These chemicals can then be absorbed by humans if they drink contaminated water. Additionally, fish who swim in water contaminated with coal ash can absorb these harmful chemicals, thereby endangering animals and humans who consume such fish. (14) In 2010, the Environmental Protection Agency released a report that found exposure to coal ash causes 900 cancer cases per 100,000 exposed individuals. (15) As a comparison, there are 100 cancer cases per 100,000 individuals who smoked a pack of cigarettes a day. (16) Clearly, while coal ash ponds create a risk of large-scale disasters like the Dan River spill, the ponds also "put human health at risk ... from gradual yet equally dangerous contamination as coal ash toxins seep into drinking water sources." (17)

CAMA takes several important steps in addressing groundwater contamination emanating from coal ash ponds, and this holistic approach can indeed be a model for other states. However, there are two main gaps in CAMA's regulatory framework that any states seeking to protect their groundwater from coal ash ponds should address in their bills. First, CAMA does not ensure that all North Carolina coal ash ponds will actually stop leeching contaminants into the surrounding groundwater after they close. (18) Second, it relieves owners of coal ash ponds from their obligation to immediately remedy groundwater pollution from their ponds. (19) Even before the Dan River spill cast national attention on coal ash, environmental groups were already concerned about the negative effects of leaking coal ash ponds on groundwater. For example, months before the Dan River spill, a suit was brought by several environmental groups attempting to force Duke Energy--the owner of all thirty-three (20) coal ash ponds in North Carolina--to take corrective action on contaminants leaking into the groundwater from its coal ash ponds. …

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