P.O. Box 187 Bynum NC 27228 (919) 542-5790

May14, 2015

Mining Program


Division of Energy, Mineral and Land Resources

1612 Mail Service Center

RaleighNC 27699 -1612

Comments on Mining Permit #19-25 for the Brickhaven No. 2 Mine Tract “A”

in Chatham County

The Haw River Assembly is a non-profit organization that has been working since 1982. to protect the Haw River and Jordan Lake in the Upper Cape Fear basin and to safeguard water quality for the communities that live in this watershed. The Brickhaven mine that is proposed for disposal of Duke Energy coal ash is within the Shaddox Creek watersshed of the Haw River.

We do not agree with the permit application that the disposal of coal ash at Brickhaven #2 Mine Tracht "A" meets the definition of "mine reclamation".The definition of mine reclamation from the NC MiningAct of 1971 states:

(12) "Reclamation" means the reasonable rehabilitation of the affected land for useful purposes, and the protection of the natural resources of the surrounding area. Although both the need for and the practicability of reclamation will control the type and degree of reclamation in any specific instance, the basic objective will be to establish on a continuing basis the vegetative cover, soil stability, water conditions and safety conditions appropriate to the area.

The land affectedby the disposal of Duke Energy's coal ash at the Brickhaven No.2 Mine Tract will not be rehabilitated by this proposed project, but will be further degraded and become unsuitable for any further useful or beneficial purpose.

According to the DMLR Mine Permit No. 19-25,267 of the 301 acres now owned by Green Meadows would be allowed to be disturbed in order to place 12.5 million tons as structural fillinto145 acres of lined fill area over an estimated period of 7.5 - 8 years to complete. Much of the existing 267acres that will be disturbed or filled, has never been excavated for clay mining or has already been rehabilitated by natural processes into ponds, wetlands and vegetation. It is already a habitat for wildife, one that will be destroyed by the construction of the coal ash landfill project. Furthermore, the finished height of the encapsulated coal ash will be above grade of the surrounding land, and no heavy equipment, construction or anything else that could damage the integrity of the coal ash liners, can be used on top of the so called "reclaimed" area.Any talk by Charah that this could be a future economic development site is clearly misleading at best. Likewise the suggestion that this "reclaimed land" could be used for some kind of future agricultural purposes is at odds with the great danger of creating a pathway to human consumption of the toxic materials that make up coals ash, including arsenic, lead, mercury, cadmium, chromium, selenium, aluminum, antimony, barium, beryllium, boron, bromide, chlorine, cobalt, manganese, molybdenum, nickel, thallium, vanadium, and zinc. Some coal ash also contains radioactive materials.

The following comments relate directly to the seven denial criteria listed under NCGS 74-51 of The Mining Act of 1971.

#2 That the operation will have unduly adverse effects on potable groundwater supplies, wildlife, or fresh water, estuarine, or marine fisheries;

It is a fact that all liners will eventually degrade and leak, and some much sooner, due to improper installation or breaches The applicant states in the draft 404 permit that "The proposed HDPE liner is designed to industry standards and has an expected life of 500+ years". However, the December 16, 2014 letter from David Cox, NC Wildlife Resources Commission to NC Land Quality Section concerning the Green Meadows mining permit gives a very different picture of the durability and risks of these liners, "...the liners have an estimated safe life of 80 to 100 years if no mechanical stress is induced (Reddy, 1999). If either of these occurs, aquatic and terrestrial wildlife resources can be exposed to coal combustion products or its constituents through direct contact with contaminated soil or surface water, or through ingestion of contaminated plants, soils, or aquatic and terrestrial invertebrates." And what about human exposure to contamination? Is there a plan for baseline monitoring of neighbors' drinking water wells in an area surrounding the mine site?

Outside of the existingmined areas at the Brickhaven site, there are mixed pine/hardwood forests and oak hickory streams and wetlands, as well as abandoned sediment basins that have become wetland habitat. The permit application by Green Meadows LLC shows that large excavations would be made beyond the current mined areas, destroying considerable wildlife habitat. Among the concerns in the December 16, 2014 letterfrom NC Wildlife Resources Commission was the need for greater stream buffers; water monitoring for additional constituents (aluminum, boron and mercury),longer post closure care of the site; dust control; and questions about types of chemicals that might be used onsite for dust suppressants and sediment control flocculants that could be toxic to fish and wildlife.

The proposed project may impact federally listed endangered or threatened species or their formally designated critical habitat. In the December 16, 2014 letter referenced above, the Division of Wildlife Resources discussed terrestrial and aquatic species that could be impacted from the Brickhaven site. Tributaries of Shaddox Creek drain this site, and flow into the Haw River just before it's confluence with the Cape Fear River. Tributaries of Gulf Creek also flow into the nearby Cape Fear River, habitat for recorded populations of the federal and state endangered Cape Fear Shiner, as well as federal species of concern and state threatened yellow lampmussel, Carolina redhorse, Roanoke slabshell, and other state and federal species of concern. The Cape Fear/McKay Island Natural Heritage area is just downstream of the Brickhaven site just above the confluence of Gulf Creek and the Cape Fear River. To say that these species will not be impacted because they are not within the project site is incorrect, since waters from these tributaries -and any pollution they carry- will flow into the Cape Fear River and into the critical habitat for the species listed above.

#3 That the operation will violate standards of air quality, surface water quality, or groundwater quality that have been promulgated by the Department;

Air Pollution: We have seen estimates that moving over 12 million tons of coal ash to the Brickhaven site could require 400,000 truckloads or 120,000 train car loads. The transport of this huge amount of coal ash will most certainly mean measurable amounts of coal ash residue along roadsides and in residential yards, which could become a significant air pollutant to those living along the transport routes. There is additional risk of air borne coal ash to the surrounding neighbors both at the excavation sites where the coal is currently stored (Riverbend and Sutton plants) and to the neighboring properties and residents where it will be disposed of. Will transport vehicles be required to have closed and covered containers? Who will monitor and regulate this? Who will monitor air quality to ensure public safety?

Surface Water:We are very concerned that coal ash that will be encapsulated at the Brickhaven site will eventually end up downstream into the Cape Fear River adding to the current sediment load and coal ash wastewater from the MoncureCape Fear Coal Plant ash storage ponds. The stormwater retention systems, berm heights and sediment ponds are all based on engineering designs that assume weather patterns based on the past. The likelihood of more frequent and severe storms should be considered for these plans. Failure or overtopping of the berms or breaching of the containment of the coal ash could lead to massive pollution of the Cape Fear River. If a hurricane or other major storm were to damage or destroy the berms and other containment at this site, it would have a devastating impact to the Cape Fear River and the downstream water users. Downstream water systems who take their source water from the Cape Fear River include Sanford, Harnett County (which supplies Lillington, Angier, Ft. Bragg, Holly Springs, and Fuquay-Varina), Dunn, Fayetteville, and Brunswick County (including Wilmington).

#4 That the operation will constitute a direct and substantial physical hazard to public health and safety or to a neighboring dwelling house, school, church, hospital, commercial or industrial building, public road or other public property, excluding matters relating to use of a public road;

There is a very real risk that coal ash dust will be a physical hazard to the health and safety of the adjacent neighbors and well as the homes, churches and schools that are along the route that that train cars or trucks will take to deliver the coal ash to the Brickhaven mine site. There is also the very danger of groundwater contamination that could poison drinking water wells of adjacent landowners if or when the liners or leachate collection systems fail.

There is also a danger to public health and safety from the coal ash leachate that will be collected from this project site. The leachateis likely to contain high levels of heavy metals including arsenic, lead, mercury, cadmium, chromium, selenium, aluminum, antimony, barium, beryllium, boron, bromide, chlorine, cobalt, manganese, molybdenum, nickel, thallium, vanadium, and zinc. Some coal ash also contains radioactive materials. The leachate that is collected will need to be taken to a municipal wastewater treatment plant. The heavy metals and other constituents of coal ash leachate can interfere with the wastewater treatment plant, and create new problems and costs that are borne by those municipalities

#6 That previous experience with similar operations indicates a substantial possibility that the operation will result in substantial deposits of sediment in stream beds or lakes, landslides, or acid water pollution; or

It will be extremely difficult to excavate the very large areas of clay soil, even using the erosion and sedimentation control practices that are described in the permit documents, without causing substantial deposits of sediments into Shaddox Creek and its tributaries. Almost all construction projects doing land disturbance of this scale in Chatham County have been cited with Notices of Violations and fines for increased sediment loads into surface waters. We anticipate the same problems with this project.

#7 That the applicant or any parent, subsidiary, or other affiliate of the applicant or parent has not been in substantial compliance with this Article, rules adopted under this Article, or other laws or rules of this State for the protection of the environment or has not corrected all violations that the applicant or any parent, subsidiary, or other affiliate of the applicant or parent may have committed under this Article or rules adopted under this Article and that resulted in:

a. Revocation of a permit,

b. Forfeiture of part or all of a bond or other security,

c. Conviction of a misdemeanor under G.S. 74-64,

d. Any other court order issued under G.S. 74-64, or

e. Final assessment of a civil penalty under G.S. 74-64.

On May 14, 2015 Duke Energy, owner of the coal ash to be deposited in the Brickhaven site,

pleaded guilty in federal court to environmental crimes and agreed to pay $102 million in fines and restitution over years of illegal pollution leaking from coal-ash dumps at five North Carolina power coal fired power plants. The violations included the massive Dan River coal ash spill, and illegal coal ash wastewater discharges from their plants in Chatham Co. Charlotte, Asheville, and Goldsboro. The $102 million settlement for these criminal charges is one of the largest ever levied under the federal Clean Water Act. Duke Energy has also been placed on probation as part of this settlement.

Although Duke Energy has transferred this coal ash disposal project to their contractor, Charah, iristheirresponsibility to see that the coal ash is disposed of safely. Critiera #7 alone should be reason enough to deny this project since Duke Energy "has not been in substantial compliance with ...other laws or rules of this State for the protection of the environment."

We believe there are much safer alternatives for long term containment of coal ash that should be considered, even if they are more costly to Duke Energy. This mining permit should be denied on the grounds that it is not mining reclamation, but rather a coal ash landfill. and because it meets the denial criteria under NCGS 74-51 of The Mining Act of 1971.

Thank you for considering these comments.


Elaine Chiosso,

Haw Riverkeeper and Executive Director