Environmental activists want more testing and accountability following coal ash breaches at two Duke Energy sites.

North Carolina environmental activists say state regulators are failing in their response to two Duke Energy coal ash spills spurred by Hurricane Florence.

Critics contend that officials have been too slow to collect water samples and hold the utility accountable after gray muck from ash pits flooded into the Neuse and Cape Fear rivers last month.

Both the utility and the administration of Gov. Roy Cooper, a Democrat who campaigned in 2016 in part promising to clean up coal ash, have downplayed the impact of the flooded dumps, pointing to test results showing that both rivers still meet water safety standards.

The official findings, however, contrast sharply with those taken by the nonprofit Waterkeeper Alliance, which detected arsenic levels near both overflows many times above the legal limit.

The spills outside Goldsboro and Wilmington are unlikely to change the long-term trajectory for the ash pits, which must be excavated over the next decade no matter what. In the near term, though, critics say the state should be doing much more to oversee the utility and ensure affected waters remain safe for fishing and drinking.

“You just don’t get to pollute a publicly owned body of water,” said Matthew Starr, Upper Neuse riverkeeper and member of the Waterkeeper Alliance network. “There has to be some accountability there, and that’s the job of our regulators, and they are failing to do their job.”

‘An ongoing, constant problem’

A coal combustion byproduct, coal ash became a flashpoint in North Carolina in 2014, when two pipes failed at an ash pit in Eden near the Virginia border, sending 70 miles of sludge laced with arsenic, mercury and other harmful pollutants into the Dan River.

The fiasco illustrated the danger of storing the toxic ash mixed with water in open, unlined earthen pits near waterways, as Duke Energy had been permitted to do for decades.

“The failure on coal ash ponds was bipartisan and long standing,” said Ryke Longest, director of Duke University’s environmental law clinic. A string of administrations, he said, “all successively kicked the can down the road until we found ourselves with a massive failure just waiting to happen.”

After the Dan River disaster, debate ensued over how best to clean up the utility’s dumpsites, many no longer home to active coal-fired power plants.

State law adopted in 2014 and modified two years later, combined with court orders, required Duke to excavate the ash from eight of its 14 impoundments. The company has begun moving ash at five sites, including the Sutton plant outside Wilmington. It will recycle the ash into concrete at three, including the Lee site near Goldsboro.

The fate of the other six sites is uncertain. Citing concerns about cost and timing, Duke wants to drain water from the pits at these locations and cover them. Environmentalists, however, are still battling in court and through state and federal administrative rules to get the sites excavated instead.

MAP: North Carolina Coal Ash Sites

Drag and click for details on remediation plan and timeline.

No matter their permanent remediation plan, all of the state’s ash dumps remain precariously close to waterways — a particular concern in eastern North Carolina during hurricane season. The excavation at Sutton must be finished by the end of next year, but the company has until 2028 to recycle the ash at Lee, which also flooded in 2016 after a major storm.

“In the two years since Hurricane Matthew when they had a spill,” said the riverkeeper Starr, “not a single shovel full of coal ash has been removed.”

Even absent hurricanes, spills from the open pits pose a threat statewide. A recent environmental compliance report from Duke showed coal ash escaped twice in the last year — once after less than four inches of rain at its Cliffside plant and again after severe thunderstorms in Asheville.

Ash pits produce other forms of pollution less regulated than spills. State-issued permits under the federal Clean Water Act don’t fully account for leaks from the pits into groundwater. Many licenses explicitly allow discharge of unlimited amounts of arsenic, selenium and other pollutants into rivers and lakes.

“Coal ash pollutants [are] entering all our rivers and lakes where these sites are located every day,” said Nick Torrey, attorney with the Southern Environmental Law Center, the organization that’s suing to clean up the sites. “It’s an ongoing, constant problem.”

Environmental regulators ‘just weren’t there’

Hurricanes like Florence only underscore advocates’ belief that all the state’s coal ash dumps should be excavated in the long term. In the short term, they’re dumbfounded by what they see as the Department of Environmental Quality’s deference to Duke and lack of urgency in investigating spills.

At the H.F. Lee plant outside Goldsboro, where a coal ash pit was swamped and eroded in places after Florence, DEQ took water samples from three spots along the river on September 23, four days after the flooding occurred. All samples found metals well below state safety standards.

Advocates say those results reflect the timing and the location of samples. One site was upstream from the coal ash pond, and another was six miles downstream. The middle point was a mile downstream from where the coal ash pit flooded the river.

“They are not currently, they have not previously, and it doesn’t appear that they plan to in the future, do any sampling around where this spill is actually occurring,” Starr said.

By contrast, Starr took samples at three spots where coal ash pits were overflowing the day the flooding began, September 19. Analyzed by private lab company Pace Analytical, the samples showed elevated levels of lead and other heavy metals. One sample found 186 micrograms of arsenic per liter, 18 times the state drinking water standard.

At the Sutton plant near Wilmington, where a coal ash pit flooded and a dam separating a cooling lake from the Cape Fear river suffered numerous breaches, DEQ arrived on the scene one day later, but sampled just one rupture. The agency returned on September 25 and sampled it and one additional breach. Both were much smaller than the three breaches examined by riverkeepers on September 21, the day the spill began. Again, the Waterkeeper Alliance found the river rife with heavy metals, while DEQ reported readings comfortably within state safety standards.

“DEQ just didn’t sample on the day that the coal ash breached and released its contents. They just weren’t there,” said Donna Lisenby, global advocacy manager for the Waterkeeper Alliance. “That’s the fundamental difference between our results and theirs.”

Experts say that compliance with water quality standards in parts of the river may not tell the full story after storms like Florence.

“You get much higher flows and, so, greater dilution,” said Robin Smith, an attorney and former assistant secretary with DEQ. “The dilution factor is so high that you don’t see a violation for the water quality standards, even though you’ve got people discharging technically in violation of their permits.”

Along the Neuse River, the utility’s Lee permit allows unlimited releases of heavy metals from a particular pipe. Along the Cape Fear, Duke’s Sutton plant must adhere to daily and monthly limits of arsenic, mercury, and selenium, and other pollutants at specific locations. The permits don’t allow releases from undesignated spots.

“The basic concept of the Clean Water Act is you are prohibited from discharging pollutants, except in compliance with these permits,” said Torrey. “That doesn’t give you a license to dump a bunch of stuff over here on the other side of your facility.”

Advocates also complain that state officials have done no sampling in Sutton Lake, a popular fishing spot in between the flooded coal ash pond and the Cape Fear River. They’re afraid heavy metals have sunk to the bottom of the lake, where they may later be ingested by aquatic life and eventually work their way up the food chain.

After the Dan River spill, DEQ not only charged Duke with violating its Clean Water Act permit; it also worked with the U.S. Fish and Wildlife Service to produce an evaluation called a Natural Resource Damages Assessment. Advocates are calling for the same process in the wake of Florence.

“Our big, big worry is Sutton Lake just got an enormous input of raw coal ash waste,” said Lisenby. “We want a full assessment of the impact of that coal ash spill to [the] lake, and whether it’s even safe for people to fish there again.”

‘Still in response mode’

DEQ has repeatedly defended its water quality test results, noting that it has followed testing protocols spelled out in administrative rules, and that it couldn’t arrive at the scene of the spills sooner due to safety concerns.

Duke spokeswoman Erin Culbert emphasized her company’s consistent test results showing the spills have not adversely harmed either the Cape Fear nor the Neuse. She also stressed her company’s cooperation with regulators.

“Throughout this kind of event, our job is to gather the data and report that promptly to our regulators,” Culbert said, “and they review all of that and determine if there are any next steps needed.”

Yet neither Duke or DEQ appear to have monitoring plans for unpermitted discharge points. In Wilmington, Duke’s monitoring locations, like DEQ’s, are not where the biggest breaches occurred on the southwestern side of the lake. Unlike state regulators, Duke has two sampling points in Sutton Lake, but they are north of where the coal pit flooded.

Duke has now transitioned to post-flooding monitoring plans approved by DEQ, said Culbert. “That involves testing the Cape Fear and Neuse rivers twice weekly for the first month and twice monthly for the second month,” she said.

State officials also plan to sample the same sites at the Neuse and Cape Fear weekly for the month of October. As for the Natural Resource Damage Assessment called for by Lisenby, agency spokeswoman Simmons said it wasn’t on the table for now.

“We are still in response mode from Hurricane Florence, preparing for response to, and impact from, Hurricane Michael,” Simmons wrote in an email last week, “and currently have not reached a point for a plan such as the NRDA.”

Environmental activists say the next logical step is to examine how much ash has settled into river and lake beds, which they plan as soon as the floodwaters allow.

“We’re going to move to take some sediment samples,” said Starr. “Again, our state’s not doing it.”