It is Day 171 of my 365 Days of Living Deliberately  blog.  I was faithful to writing this blog for the first three months or so of the year, but then I have gotten swept up in a grassroots initiative, a spring and summer campaign to press Duke Energy to commit to a comprehensive cleanup of the Dan River and affected areas and to press state legislators, the Governor, and federal EPA officials to see that this cleanup is effectively and justly conducted according to a transparent, stakeholder/collaborative model for remediation of the coal ash pollution.

The following was written in response to EPA’s May 22, 2014 announcement that it signed an agreement with Duke Energy to oversee a comprehensive coal ash cleanup of the Dan River and affected areas. This response that Ken and I wrote was sent to state and federal officials as well as to environmentalists and the news media. The following is a link to the EPA Atlanta announcement:  http://yosemite.epa.gov/opa/admpress.nsf/0/A600A763AA3D1A6785257CE0006B83A7 .

I have numerous other relevant documents to post in order to catch up with my coverage of the coal ash disaster and our grassroots efforts to press for an immediate Dan River disaster cleanup as well as for cleanup of all of Duke Energy’s dilapidated pits and ponds. The documents and commentary will be forthcoming.

As one who knows the importance of keeping history which often becomes blurred with time and rewritten according to special interest needs, I am committed to keeping better track of this coal ash history in this blog as it has been unfolding and as we have been pressing to bend the history to happen in our favor. I will attempt to fill in the missing history and to keep the blog account ongoing as a part of my living deliberately and as part of my work to help effect environmental change.

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Subject: A Response to EPA’s Comprehensive Coal Ash Cleanup of the Dan River and Affected Areas: A Stakeholders’ Collaborative Model              

 

The following framework is a response to the Environmental Protection Agency’s May 22, 2014, public announcement that it plans to oversee a comprehensive cleanup of the February Dan River coal ash spill. The response includes an assessment of EPA’s cleanup plans and a framework for a collaborative, problem-solving cooperative agreement between stakeholders, Duke Energy and North Carolina, Virginia and federal officials. This agreement is based on principles inherent in environmental justice and pollution prevention which include the protection of unalienable and civil rights through a roundtable model, stakeholder-driven, independently verified cleanup process.

 The months of inaction by Duke Energy have been unacceptable following the massive and horrific breach which was estimated early on as up to and possibly more than 82,000 tons of toxic coal ash into the Dan River. Within days, the coal ash contamination was carried down the Dan River for 70 miles through North Carolina and Virginia into Kerr Lake Reservoir.

 The EPA’s announcement is enthusiastically welcomed by those who have been pressing for such a full-scale, thorough cleanup, especially by those who live in the Roanoke River Basin and Kerr Lake Reservoir and Lake Gaston region and by the two million North Carolinians and Virginians who depend on this water system for their lives and their livelihoods.

 

Stakeholder Model

In order to implement a stakeholders’ model for an environmental justice-directed, collaborative, problem-solving agreement with the EPA, key stakeholders and their representatives must be called together to serve as a steering committee so that their interests in a safe, effective, timely, unfettered and non-politicized comprehensive cleanup are immediately represented in the initial decision-making process, throughout the cleanup and afterwards.

Stakeholders are entrusted with representing the interests of those whose lives have been or could be impacted by the coal ash contamination from the Dan River coal ash discharges. Key stakeholders include area grassroots, civic, environmental, ecumenical, business, local government and civil rights leaders.

Second, in order to ensure that stakeholders’ views help drive and significantly determine decisions, they must be afforded meaningful and notmerelycosmetic participation in the cleanup process, and stakeholders and their representatives must be represented as a majority at the roundtable. Otherwise, the combined representatives from Duke Energy, North Carolina and Virginia and EPA will outvote stakeholders, thus, facilitating mismanagement,inequality and injustice in the process.

 

Independent Oversight of Duke Energy and EPA Required

An environmental justice comprehensive cleanup of all coal ash contaminated areas in the Dan River and affected Roanoke River Basin areas requires that Duke Energy fund qualified, independent science advice to be given to stakeholders and that it fund independent sampling, testing and use of labs. Independent scientists will provide oversight of the principle responsible parties — Duke Energy, state and federal EPA officials and legislators. Unfettered stakeholders and their chosen independent science representatives are necessary to ensure that environmental justice and a safe, effective and comprehensive cleanup prevail throughout the process.

In fact, transparency throughout a comprehensive cleanup benefits not only stakeholders but Duke Energy, DENR, and the EPA as well, because it guarantees the integrity and credibility of the cleanup process, of its methods, procedures, and goals, and of state and federal agencies involved in the process. Transparency through independent oversight allows the public to perceive that the cleanup process is reliable and safe, as it positively affects the environment, health and natural resources of the region and its agriculture, businesses and industries, including recreation and tourism. A fully transparent comprehensive cleanup is also crucial to future economic development.

Consequently, there must be an empirically reliable and interpersonally available verification basis for believing that the cleanup goals are being met according to the most stringent cleanup criteria and standards. Independent scientists must split samples with Duke Energy and EPA, conduct independent tests, use independent labs, use unbroken chains of custody, and have access to all data and determine when a comprehensive cleanup of all the coal ash in the Dan River and affected areas of Kerr Lake Reservoir has been completed.

 

A Framework for a Stakeholder Cooperative Agreement with EPA

 A framework based on the principles of environmental justice and pollution prevention is needed to implement a stakeholders’ model for a collaborative, problem-solving cooperative agreement with EPA in order to achieve a comprehensive coal ash cleanup of the Dan River, including all affected areas of the Roanoke River Basin. The following are important excerpts from the EPA’s May 22, 2014, Atlanta press release announcing its plan to oversee a comprehensive coal ash cleanup of the Dan River and affected areas.

The stakeholders’ response to EPA’s statements provides a general comprehensive cleanup framework that is based on the ethics and science of the environmental justice and pollution prevention roundtable model.

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EPA Statement 1: EPA Oversight of Comprehensive Coal Ash Cleanup

 Statement 1: “The U.S. Environmental Protection Agency signed an enforceable agreement with Duke Energy Carolinas, LLC (Duke) to perform a comprehensive assessment, determine the location of coal ash deposits and to remove deposits along the Dan River as deemed appropriate by EPA in consultation with the US Fish and Wildlife Service as a result of the coal ash spill that occurred at the Dan River Steam Station on February 2, 2014.”

 

Shareholders’ Response 1: Definition of a Comprehensive Cleanup

 A comprehensive cleanup is based on vacuum dredging technology which uses the latest, state-of-the-art equipment that ensures the coal ash is vacuumed up with little to no disturbance of the surrounding sediment.  A comprehensive cleanup by definition requires cleaning up all the affected areas. In order to comprehensively clean up the coal ash which coated the bottom of the Dan River for seventy miles and to determine also which areas the coal ash has been deposited in Kerr Lake Reservoir, the use of appropriate underwater video and other state-of-the-art technologies, such as core sediment sampling technology, must be used with GPS mapping to determine the most effective vacuuming dredging layout plans. The use of cables helps vacuum dredgers demarcate where they dredge and have dredged.

 A comprehensive assessment of the coal ash deposits cannot delay the immediate cleanup of coal ash deposits that are easily recognized and where no further testing is warranted, and these cleanup efforts must continue and proceed without delay. Assessment can often be used as a delay tactic and must not function as a procedural obstruction of justice. Because we are in a race against time to retrieve the coal ash contaminants before they spread more and more, time is of the essence in moving the comprehensive assessment and cleanup forward.

A comprehensive and environmentally just cleanup requires that the most stringent cleanup standards be met. Therefore, Duke Energy, the Department of Environment and Natural Resources, NC and VA health officials, and EPA scientists cannot arbitrarily “deem what is appropriate” to clean up. Decisions on what is appropriate for a comprehensive cleanup must be determined by stakeholders and be consistent with the most stringent criteria that will have been inter-personally agreed upon.

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EPA Statement 2: Duke Energy Reimburses EPA

Under the Administrative Order and Agreement on Consent (Order), entered into under the Superfund law, EPA will oversee the cleanup and Duke will reimburse EPA for its oversight costs.

 

Stakeholders’ Response 2: Duke Energy Reimburses Shareholders

In addition to paying for EPA oversight and resources, Duke Energy must also fund the work of roundtable stakeholders and their independent science advisors and independent testing so that in addition to the burden of coal ash contamination, stakeholders do not have to carry an added economic burden.

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EPA Statement 3: Cleanup Complies with Federal and State Standards

 EPA will work with Duke Energy to ensure that cleanup of all contaminated areas at the site, and affected areas, is comprehensive based on sound scientific and ecological principles, complies with all Federal and State environmental standards, and moves as quickly as possible,” said EPA Regional Administrator Heather McTeer Toney.” “Protection of public health and safety remains a primary concern, along with the long-term ecological health of the Dan River.”

 

Stakeholders’ Response 3: Superfund Rules Must Not Slow Down Cleanup Process

Duke Energy has already begun vacuuming up some of the larger, more obvious coal ash deposits in the Dan River without Superfund restrictions slowing the company down or stopping the initial cleanup. In fact, Superfund requirements must expedite the cleanup process, not slow it down with bureaucratic procedures, hurdles, and obstacles. Compliance with state and federal laws does not guarantee safety since there have been no laws or regulations governing the disposal of coal ash, and EPA will not give its latest ruling on coal ash disposal until December, 2014. Therefore compliance issues must not slow the cleanup process down or be used as reasons for delaying the cleanup process.

Because the agreement between the EPA and Duke Energy was hammered out under the auspices of the Superfund law, it indicates the seriousness of the contaminated areas and the need for an immediate and effective cleanup response to coal ash elements such as mercury, lead, zinc, cadmium and others. All are classified as hazardous substances under the law.

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EPA Statement 4: Assessment of Remaining Contamination and Needed Action

“Duke’s work will be subject to review and approval by EPA, in consultation with the North Carolina Department of Environment and Natural Resources and Virginia’s Department of Environmental Quality, to ensure full compliance with Superfund law. Once removal activities are complete, Duke will be required to assess any remaining contamination to determine whether additional actions may be needed.”

 

Stakeholders’ Response 4: Stakeholders Will Hold Duke Energy and EPA to a Thorough Cleanup

EPA says that it will oversee the cleanup of the Dan River and affected areas and that Duke Energy will be required to “assess any remaining contamination to determine whether additional actions are needed.” A comprehensive cleanup, by definition, means “covering completely the affected areas,” so, stakeholders will hold Duke Energy and the EPA to a thorough cleanup. This thorough cleanup will include scouring the Dan River and purposefully searching Kerr Lake Reservoir for areas likely to have coal ash build-ups, areas that catch pollutants such as river bends and curves and lake coves. Areas with high volume tourism and recreation, including swimming and known fishing areas, must also be exhaustively cleaned up and closely monitored in future years.

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EPA Statements 5: Officials Consider Coal Ash Spill Threat to Wildlife and Advise Against Swimming

“But officials do consider the spill a threat to wildlife, and have advised North Carolinians to avoid swimming in the water.”

 “Conditions resulting from the coal ash release at the Dan River Steam Station present a substantial threat to public health or welfare and the environment if not properly managed.” “Human exposure may occur should large deposits of ash accumulate on areas used for recreation.”

 “Protection of public health and safety remains a primary concern, along with the long-term ecological health of the Dan River.”

 

Shareholders’ Response 5: Swimmers Need to Be Warned and Swimming Areas Closely Monitored

Because EPA officials “consider the spill a threat to wildlife and have advised North Carolinians to avoid swimming in the water,” as the cleanup is occurring, members of the public must be warned that they enter into water-related activities such as swimming and boating at their own risk and that the risk will continue and likely increase in years to come without a comprehensive coal ash cleanup.

Coal ash contaminants that settle in bottom sediment will be stirred up over time and will pose an ongoing threat to those who recreate in the Dan River, Kerr Lake Reservoir and Lake Gaston.

 Therefore, swimming areas in North Carolina and Virginia parks must be closely monitored, starting this summer season and in future summers, in order to give the public up-to-date information about possible coal ash deposits in swimming areas and so that Duke Energy can continue its commitment to a comprehensive cleanup.

 

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Conclusion

A stakeholders’ roundtable model for an environmental justice, collaborative, problem-solving cooperative agreement with EPA is a win for all parties involved and ensures that Duke Energy’s financial and resource investment in a comprehensive coal ash cleanup of the Dan River and affected areas, including Kerr Lake Reservoir, is perceived as responsible, trustworthy, safe and effective and as a significant and positive effort to protect the environment, natural resources and public health of generations to come.

With implementation of such a stakeholders’ collaborative agreement with EPA, Duke Energy and the EPA will establish the precedent for new, more effective and equitable waste disposal policies, signaling to the public, and especially to North Carolina communities living near Duke Energy’s coal ash pits and ponds that the company is committed to the safest disposal of coal ash that is humanly possible.

 As the largest energy company in the nation and the world, Duke Energy is now in the position to lead the way forward with innovative near-term and long-term waste disposal solutions, such as investing in building coal ash entombment facilities out of concrete blocks made of coal ash, entombments that will provide environmental protection much longer than coal ash pits and lined landfills.

 In fact, such a collaborative agreement will also help EPA fulfill its crucial “Themes for Meeting the Challenge Ahead,” including, “Making a Visible Difference in Communities across the Country;” “Addressing Climate Change;”  “Taking Action on Toxics and Chemical Safety;” “Protecting Water: A Precious Resource;” “Launching a New Era of State, Tribal, and Local Partnerships;” and “Embracing EPA as a High Performing Organization.”

With innovative thinking and a commitment to collaborative problem-solving, the Dan River coal ash disaster which began as a most terrible act of negligence against nature and humanity can actually become a driving force for corporate and governmental environmental protection based on principles of environmental justice and pollution prevention, thus helping lead the state, the nation, and the world toward a more democratically-driven sustainable future.

When it comes to environmental justice and pollution prevention issues and the possibilities of equitable and effective cleanups, we speak from more than thirty-five years of hard-earned experience. In fact, the framework for the environmental justice, collaborative model for problem-solving environmental issues was pioneered by ordinary citizens in Warren County, North Carolina, who believed it was their Constitutional right and responsibility to attempt to stop, through due process, a toxic waste PCB landfill from being built just above their groundwater. The framework for environmental justice continued to emerge when more than five-hundred people were arrested in acts of civil disobedience, as the state of North Carolina used nearly a million dollars of State Police and National Guard Forces to bury some ten-thousand truckloads of PCB contaminated soil in a “dry-tomb” landfill that was capped with nearly a million gallons of water in it. After a decade of neglect, Warren County citizens convinced state officials to adopt the roundtable model for a permanent cleanup of the PCB landfill. The Joint Warren County/ State PCB Working Group was formed, independent science advisors were hired to represent stakeholders, and after an arduous, drawn-out, decade-long cleanup process, the PCB landfill was detoxified.

So, it is not without prior knowledge of the complexities involved in the complicated and contentious issues related to waste management that we offer our insights, a framework for an environmentally just and effective comprehensive cleanup of the Dan River and affected areas of the Roanoke River Basin,and that we offer our vision of how stakeholders, Duke Energy, the state, and the EPA can move forward with solving the Dan River disaster and the massive coal ash problems that need to be solved.

According to author Eileen McGurty, Associate Chair of Environmental Studies at Johns Hopkins University and author of Transforming Environmentalism: Warren County, PCBs, and the Origins of Environmental Justice, in Warren County, “The introduction of right-oriented demands — the right to accurate information, to democratic participation in decisions, the right to a clean environment — transformed environmentalism.”

 We are continuing to attempt to help transform environmentalism as we call for a mutually agreed upon environmental justice framework to resolve the coal ash crisis, a framework designed to return the environmental status quo of the Roanoke River Basin to what is was before coal ash contamination, one that reaffirms the principles of self-government, freedom, and equality of the people in the region, and that puts the destiny of the Basin, and therefore the destiny of its people, in their collective will, where it belongs, and where it must remain.