In coal ash lawsuit, DEQ employee testifies he didn’t look for wells when inspecting Brickhaven site

Thad Valentine, an environmental senior specialist at the NC Department of Environmental Quality, looks like someone who spends very little time in courtrooms and a lot of time outside: burly, ruddy, sporting a short-sleeved work shirt that doesn’t require a tie.

But on Tuesday, he had been subpoenaed to testify in an administrative law hearing about his initial inspection of the Brickhaven mine near Moncure, where Charah, a disposal company, would eventually dump 7.3 millions of tons of coal ash from Duke Energy plants, ostensibly for structural fill.

The Coal Ash Management Act, which became law after the Dan River disaster, allows coal ash to be used as structural fill.

Valentine, who said he conducts about 200 inspections a year, 10 of them at mines, testified that he couldn’t remember if he visited Brickhaven or Colon, a similar facility in Lee County, before DEQ issued the permit. But during his initial inspection after the permit was granted, in 2015, Valentine said he observed the grading of dirt and the building of a pond.

What about wells? asked the environmental groups’ attorney Cathy Cralle-Jones.

“I don’t know if there was a well onsite,” Valentine replied. “I didn’t check for one.”

This revelation is important because if the liners beneath the coal ash leak, contamination can enter the groundwater, surface water and private drinking water wells. Cralle-Jones was trying to make the point that DEQ’s oversight of potential water contamination and its permitting processes were weak.

“There was no testing of a water supply well onsite,” Cralle-Jones said. “There was no survey or testing of the residential drinking water wells in the area.”

The case is now entering its fourth year. In May 2016, three environmental groups argued before an administrative law judge that parts of Brickhaven had never been mined. By permitting Charah to dig up new sites within the mine, the groups argued, DEQ was illegally allowing the company to create small landfills. Those mini-landfills wouldn’t have to comply with stricter solid waste standards.

Instead, DEQ issued a structural fill permit because it considered unmined land nonetheless “affected” in part, because it was within the mining boundary and would be excavated to “smooth the edges of the existing mine”.

“This opens a Pandora’s Box, setting forth a dangerous precedent that any party with a mining permit to do this can as long as it’s within the property boundary,” said Seth Barefoot, an attorney for the complainants.

Administrative Law Judge Melissa Lassiter upheld DEQ’s permits, concluding that the facilities were mines, not landfills. Superior Court Judge Carl Fox overturned Lassiter’s ruling; the EPA also considered the mines to be landfills under federal coal combustion rules.

DEQ prevailed on appeal, which allowed the material to be deposited in new cells. The Court of Appeals ruled Fox improperly reweighed and rewrote Lassiter’s opinion and sent the case back to her court.

Cralle-Jones had planned to call DEQ hydrogeologist Elizabeth Werner to the stand, but agency and Charah lawyers successfully argued to prohibit her from testifying since she was not part of the original hearing.

Cralle-Jones told the court she had planned to ask Werner about a December 2014 letter between her and Charah that originally called for sampling at four background monitoring wells. But several months later, Werner told the company via email that only one background well would be necessary.

“Why did the department allow a method that was less protective than the permittee suggested?” Cralle-Jones asked.

These wells are crucial because they can reveal existing water contamination — or the absence of it — and compare those results to monitoring after a project is built. If new or increasing amounts of contamination is present, then those findings should trigger an investigation.

Had they been installed, additional background wells could be helpful now that elevated levels of contaminants have been detected near the Brickhaven site. In June, DEQ sent a letter to Charah ordering the company to investigate the source of contaminant in groundwater monitoring wells that exceeded state standards, including cobalt, vanadium and barium. But with only one well to compare pre-fill conditions, the data could be limited.

Cralle-Jones said she would have asked Werner to testify about why, during the permitting process, she allowed eight monitoring wells to be moved.

“This shows why change in permit provision was arbitrary and unsupported and not protective of human health and the environment,” Cralle-Jones said.

Tom Myrick, an attorney representing Charah, countered that BREDL should have filed for a contested case hearing over the number of background wells when the permit was issued. “To let them raise the issue now is prejudicial,” Myrick said.

Lassiter did not allow the June letter into evidence.

Today’s hearing also illuminated how the Division of Energy, Mining and Land Resources inspects mines and reviews permits. Toby Vinson, DEMLR’s chief program director, testified that the division primarily monitors for erosion and sedimentation violations and reviews a permittee’s plans to avoid the runoff.

“As long as a permittee ensure no erosion or sedimentation from mining site, it will be approved?” Cralle-Jones asked.

“Yes,” Vinson said.

DEQ and Charah filed a motion to dismiss the case, claiming the Court of Appeals sent it back to Lassiter on merely procedural, not evidentiary grounds. “The petitioners had a chance to put on their case,” Myrick, told the judge, and should not be allowed to reargue it.

Seth Barefoot, co-counsel for BREDL, countered that the court’s job is to ensure that the “legislative intent behind the statutes” — CAMA — is achieved. And that, in BREDL’s view excludes areas that had not been previously mined from reclamation, and thus structural fill.

Lassiter chose to delay her ruling on the motion until after today’s arguments. She could announce her ruling within a month.

Therese Vick, research director for BREDL, said she hopes the judge “recognizes this for the farce it is.”