Wood pellet company Active Energy Renewable Power faces legal action over discharges into Lumber River

Active Energy Renewable Power, which plans to operate a large wood pellet plant in Lumberton, in Robeson County, faces a potential lawsuit for discharging polluted wastewater for nearly 500 days into the Lumber River and a tributary.

The Southern Environmental Law Center, representing Winyah Rivers, formally notified the company on Dec. 10 that it intended to sue under the Clean Water Act. The company has 60 days to respond.

Policy Watch reported in April that Active Energy, a publicly traded British company, would use a commercially untested technology to produce black wood pellets. Manufactured under the CoalSwitch name, black pellets supposedly emit less pollution than traditional pellets produced at other facilities, like Enviva. However, Active Energy had not conducted any large-scale stack testing of emissions at the time of the air permit application.

The facility has not begun producing pellets, but currently operates a sawmill at the site on Alamac Road.

The wastewater in question originates as contaminated groundwater beneath the site. Several companies have operated there, and at least one previous tenant polluted the groundwater with dry cleaning solvents.

Alamac American Knits, which sold the property to Active Energy, had entered into a brownfields agreement with the state; these agreements allow contaminated properties to be redeveloped for certain industrial or commercial uses. The agreement, which transferred to Active Energy, requires the groundwater to run through a  pump-and-treat system to removes some of the contaminants.

Alamac American Knits had a permit to then discharge that treated wastewater into the Jacob Branch and Lumber River. However, Active Energy does not have such a permit, said SELC Heather Hillaker.

“We’re not saying they can’t pump and treat, but they can’t discharge into the river,” Hillaker said.

If the wastewater can’t be discharged, Active Energy would likely have to pay to have it trucked offsite to a special facility.

Active Energy spokesman Tom Huddart told Policy Watch that the company had just received the notice and hadn’t yet read it. “We will respond fully to the concerns expressed in the letter, Huddart added, “and expect to fully address any issues raised in the time allowed for response.”

NC Department of Environmental Quality spokesman Robert Johnson said the agency is investigating the matter.

SELC only learned of the discharge when the company responded to an earlier notice about its illegal discharges of stormwater from the property. Active Energy subsequently applied for and received a stormwater permit from the state.

“There’s a pattern of noncompliance with this company,” Hillaker said.

Because the pellet process is new, the amount and type of air pollution and water pollution will be unknown until the plant begins operating, currently estimated to happen in 2021, Hillaker said.

The company is also restricted in its use of groundwater, so it’s still unclear what water source it will tap into to operate the pellet plant. According to the brownfields agreement, groundwater from the developed portion of the site can be used only for textile manufacturing.

Monitoring reports cited in the legal filings show that Active Energy is not testing its wastewater for all the potential contaminants associated with those solvents. The wastewater does contain sulfide, zinc, copper and phenol, among other pollutants. (Phenol is used primarily in the manufacture of nylon and other synthetic fibers, indicating its presence is a remnant of a previous textile company.)

Nor is AERP supposed to be discharging wastewater at all, the filing states. Under conditions of its state-issued discharge permit, AERP is prohibited from sending any wastewater into Jacob Branch or the Lumber River until certain conditions are met. These conditions include an update of the contents of the wastewater and alternatives to discharging it into public waterways. Those documents have not been filed with the Division of Water Resources, as required.

Hillaker criticized state regulators for their piecemeal approach toward monitoring and oversight of Active Energy. The Division of Air Quality had granted the air permit even while the company was illegally discharging stormwater — and now allegedly, wastewater. “This is another example of DEQ not having comprehensive control of this facility,” Hillaker said.

Many Robeson County residents told DEQ at a public hearing that they opposed the granting of an air permit.

Communities of color already suffer from higher rates of respiratory illnesses and are disproportionately sickened by COVID-19 than white people. According to the state Department of Health and Human Services, as of Dec. 11, there have been 8,144 confirmed cases of COVID-19 and 114 deaths in Robeson County.

“I’m totally against it coming because of the air pollutants,” Carol Richardson, a member of the Concerned Citizens of Robeson County and the NAACP, said during the virtual public hearing earlier this year. “To add this wood pellet plant would increase the threat to our health and well-being. Can you guarantee there will be no harm to us now or in future because of this plant? No, no, no, to the wood pellet plant.”

The Division of Air Quality approved the permit in August, with additional requirements: Stack testing of hazardous and toxic air pollutants and volatile organic compounds; the testing must begin within 90 days of start up instead of 180; and facility-wide emissions must be reported every six months.