As the Southern Environmental Law Center announced its historic settlement Jan. 2, 2020 with Duke Energy and the N.C. Department of Environmental Quality to clean up coal ash at six North Carolina sites, Duke’s Asheville Steam Plant at Lake Julian is in the midst of a permitting request to build an industrial landfill on the plant site.

The settlement, arranged on behalf of Appalachian Voices, MountainTrue, Catawba Riverkeeper Foundation, Sierra Club and other environmental nonprofits, becomes the largest coal ash cleanup in America to date, according to DJ Gerken, program director with the SELC, based in Asheville.

The settlement applies to six Duke Energy coal ash sites still burning coal, except for Asheville.

The Asheville Steam Electric Plant on Lake Julian was not included in the settlement because cleanup had already been ordered by the Coal Ash Management Act of 2014. This legislation came in the wake of a massive spill that year at a coal ash pit at a Duke Energy facility on the Dan River in eastern North Carolina, which leaked 39,000 tons of toxic waste into the river, coating the river bottom with the sludge for 70 miles downstream.

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The country’s largest electric company was ordered to excavate coal ash from all of its North Carolina power plant sites, slashing the risk of toxic chemicals leaking into water supplies but potentially adding billions of dollars to the costs consumers pay.

Duke Energy Corp. must remove the residue left after decades of burning coal to produce electricity, North Carolina’s environmental agency said. The company had proposed covering some storage pits with a waterproof cap, saying that would prevent rain from passing through and carrying chemicals through the unlined bottoms and would provide a quicker and cheaper option.

Coal ash contains toxic metals like mercury, lead and arsenic.

This decision affects six coal-burning plants still operating in North Carolina. Pits at eight other power plants around the state had previously been ordered excavated, with the ash to be stored away from waterways.

The move means North Carolina joins Virginia and South Carolina in ordering its major electric utilities to move their coal ash out of unlined storage.

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The vast majority of ponds and landfills holding coal waste at 250 power plants across the country have leaked toxic chemicals into nearby groundwater, according to an analysis of public monitoring data released by environmental groups.

The report, published jointly by the Environmental Integrity Project and Earthjustice, found that 91 percent of the nation’s coal-fired power plants reported elevated levels of contaminants such as arsenic, lithium, chromium and other pollutants in nearby groundwater.

In many cases, the levels of toxic contaminants that had leaked into groundwater were far higher than the thresholds set by the Environmental Protection Agency, the groups said.

The findings raise questions about whether any of the leaks might affect drinking water supplies. Companies were required to release their monitoring data for the first time last year as part of an Obama-era rule to regulate storage of coal waste.

The 2015 regulations, which dictated how coal ash must be stored across the country, were finalized in the wake of two high-profile spills in Tennessee and North Carolina, which collectively contaminated waterways and damaged nearby homes.

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Over the weekend, Hurricane Matthew — which had been downgraded to a tropical cyclone by Sunday — brought as much as 18 inches of rainfall to parts of North Carolina, causing rivers across the state to reach dangerously high levels. The record-breaking floods have already damaged thousands of homes and left thousands of residents stranded. The state also suffered the highest number of causalities in the U.S. from the storm— nearly half of the 23 people killed lived in North Carolina.

As of Tuesday, the rains have stopped and forecasts look clear, but North Carolina residents could see more repercussions from the record-high water levels: Environmentalists in the state are warning that cresting rivers have the potential to flood facilities storing animal waste or toxic coal ash, potentially sending those waste products into rivers and groundwater.

Aerial imagery released by Waterkeeper Alliance show some inactive coal ash ponds currently underwater, with others very close to rivers that are expected to crest in the coming days.

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The safety issue was demonstrated in dramatic fashion a few years ago, when a coal ash storage pond ruptured, sending millions of gallons of poisonous sludge into North Carolina’s Dan River.

Environmentalists have long been trying to force Duke Energy, the state’s massive utility, to clean up its coal ash sites, but after the Dan River disaster, more legislators got on board, passing the Coal Ash Management Act. It hasn’t exactly gone well.

Among other things, the act set up a commission to oversee Duke’s coal ash clean-up efforts, but last year, Gov. Pat McCrory (R), a former Duke executive, sued to dismantle the commission — and won.

It might seem like the legislature is fighting for the people and McCrory is fighting for Duke, but that’s not exactly the case, said Frank Holleman, a senior attorney with the Southern Environmental Law Center who has been fighting coal ash in court.

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Perhaps they should hire a maid service

Now, with only a month left in its 2015-2016 session, the South Carolina legislature has picked up a bill that would do away with this ability.

“No one in the public of South Carolina is calling for the repeal of their rights to protect their communities and clean water,” Frank Holleman, a senior attorney at the Southern Environmental Law Center (SELC) says. “Instead, this is an example of the lobbyists for corporate polluters controlling politicians who will take away the rights of citizens in order to curry favor with major campaign contributors.”

Holleman understands what is at stake here perhaps more than most. In early 2012, SELC filed a suit on behalf of a local water protection group, the Catawba Riverkeeper, against South Carolina Electric & Gas (SCE&G) over coal ash pollution in the Wateree River, near Columbia.

“Of those that are for it, you will be hard pressed to find anyone who wants to talk about being for it. They don’t like it; they don’t want to be for it; they recognize the wisdom of our position,” State Rep. James Smith, who opposes the bill said. “Behind the scenes it appears that there are quite powerful forces behind it.”

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The settlement agreement between Dominion Virginia Power and the James River Association comes a day after the company reached a similar deal with Prince William County regarding Quantico Creek, a tributary of the Potomac River located within its borders. Quantico Creek and James River will start receiving discharges as early as April.

Two months ago, the Virginia Water Control Board issued permits allowing Dominion to drain coal ash water into Quantico Creek and the James River in southeastern Virginia, as Dominion follows an EPA mandate to close its coal ash ponds. That entails treating and draining the less-polluted top water from coal ash ponds at the Possum Point power plant by Quantico Creek, and the Bremo Bluff power plant by the James River. In total, Dominion will close 11 coal ash ponds across the state.

Environmentalists have noted that similar permits in North Carolina, which suffered a massive coal ash spill in 2014, are much more stringent and point to the industry’s capacity to do better.

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Duke Energy has asked to add three power plants to the list of four plants where they will begin scooping the ash, which is leaking arsenic, lead and other pollutants into waterways. In May, the company plead guilty to environmental crimes over a North Carolina power plant’s coal ash spill into a river and management of coal ash basins in the state.

Superior Court Judge Paul Ridgeway announced the order after the state Department of Environment and Natural Resources sought to stop Duke Energy from going beyond a new state law requiring it to excavate pits at four plants.

The state agency argued Duke Energy doesn’t have infinite money and time to clean out the problem sites. The company shouldn’t decide which get top priority without public input, agency attorney Anita LeVeaux said. The agency also is trying to limit costs that Duke Energy later could seek to pass along to electricity customers, agency spokeswoman Crystal Feldman said.

The state stepped up its regulations last year after coal ash collected at the utility’s Eden power plant spilled into the Dan River, coating 70 miles of the waterway in toxic, gray sludge that turned it into “toxic soup,” according to environmentalists. The state law requires Duke Energy to stop pollution leaking from all 14 of its North Carolina coal ash dumps by 2029.

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The $50.5-billion company was fined $102 million and placed on five years of probation for environmental crimes. All company compliance related to coal ash in five states will be overseen by a court-appointed monitor and reported to federal parole officers.

U.S. District Judge Malcolm J. Howard approved the plea agreement following a 90-minute court session in which a Duke Energy lawyer repeated the words “guilty, your honor” more than 20 times.

The nine misdemeanor charges were filed against three Duke Energy subsidiaries, and the lawyer responded for each charge against each subsidiary. Howard found the utility guilty on all nine counts.

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But should the plan win state approval over the objections of local governments, environmental advocates worry that it could lead to dumping of coal ash in scores of former clay mines across the state. The waste left over after burning coal to generate electricity, coal ash contains potentially dangerous levels of toxins including arsenic, lead, thallium, and radioactive elements.

The dumping permits are being sought by Charah Inc., a coal ash services company based in Louisville, Kentucky. The permit applications indicate the coal ash would be moved from Duke Energy sites in North and South Carolina.

The quest to move the coal ash comes in the wake of last year’s 39,000-ton spill into the Dan River from a retired Duke Energy coal-fired power plant in Rockingham County near the Virginia border. Most of the company’s current coal ash dumpsites are located along rivers and other waterways and are leaking pollution to both surface and groundwater supplies, creating an urgent need to find safer storage solutions.

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