MAC: Mines and Communities

More revelations over North Carolina coal ash spills

Published by MAC on 2014-04-03
Source:, Los Angeles Times

Duke Energy is under serious pressure after the disastrous spills from its coal ash ponds.

Previous article on MAC: After North Carolina spill, coal ash ponds face extinction

Duke Energy refused to share possible effects of coal ash dam breaches

By Tyler Dukes

2 April 2014

Raleigh, N.C. - For more than three years, Duke Energy used a provision in a 2009 state law tightening coal ash pond regulations to refuse to provide environmental regulators and emergency responders with information about potential damage from failed dams.

Officials from the Department of Environment and Natural Resources say Duke has failed to provide maps that detail how breaches in 29 of the state's 46 high-hazard coal ash dams would affect surrounding areas. Known as inundation maps, these documents form a crucial part of emergency action plans in the event a dam fails.

North Carolina is one of 10 states in the country that does not require dam owners to file these emergency action plans, according to DENR spokeswoman Bridget Munger. But since DENR officials took over regulation of all of the state's dams in 2010, it has required EAPs every time a dam operator applies for any kind of new permit.

"That gives us some leverage to work with," Munger said.

But documents show the same law granting the agency that regulatory authority created a loophole Duke has used to get around the inundation map requirement.

One of bill's authors says that's not how it was supposed to work.

"That's a troubling matter, and I guess we could fix that in the coal ash legislation we're going to be filing in the next few weeks," said state Rep. Pricey Harrison, D-Guilford.
Law shifted regulatory authority

Coal ash Search NC's coal ash records

Prior to 2010, Munger said, the safety of the dams keeping coal ash in retention ponds was essentially self-regulated. Duke inspected these facilities every five years, then reported its findings to the state Utilities Commission.

Senate Bill 1004 changed that, transferring oversight of coal ash ponds to regulators at DENR. When she signed it into law in July 2009, Gov. Bev Perdue hailed the act as a way to tighten restrictions on the industrial byproduct, which contains arsenic, mercury, lead, boron and other heavy metals.

"Because of potential risk posed by the location of North Carolina's coal ash ponds, we must provide greater oversight and more frequent inspections," Perdue said in a release at the time. "This legislation will keep our citizens safer and our dams more secure."

For a while, Munger said, the measure mostly worked as intended.

"When that was passed and the program was new here, there was a process over the first year of starting to work with these companies," she said.

Progress Energy, which owned about 20 of the high-hazard dams, supplied many of the required inundation maps. Duke, she said, was less amenable.

But around 2011, Munger said the companies began using one section of the law to claim an exemption. Duke acquired Progress in 2012.

"Staff was indeed frustrated because that last part kind of tied the hands of the regulators," she said.

Around the same time, WRAL News reported Tuesday, DENR officials began investigating ways to exempt these documents from the state's public records law in response to a Duke request to keep them secret.

While the state has some form of EAP on file for 38 of the 46 high-hazard dams, state data show inundation maps are old or missing entirely from two-thirds of the structures.

"An EAP without a valid and up-to-date inundation map is pretty much no good," Munger said.

After the spill, a change of heart

Goldsboro coal ash pond Duke, DENR kept potential impacts of coal ash dam breaches secret
Although it was a busted drain pipe and not a breached dam that caused the coal ash spill in early February that released 40,000 tons of coal ash into the Dan River, Duke is shifting its stance on the release of these impact maps.

In a March 20 response to DENR's information request, Vice President John Elnitsky said the company would provide updated emergency action plans and inundation maps before July 31.

"It will take several months to update the plans because we intend to incorporate our learnings from Dan River, and this process is underway," Duke spokesman Thomas Williams said in an emailed statement.

Williams said in the email that Duke's practice is to keep emergency plans related to "major critical energy infrastructure" confidential for security reasons. But reached by phone Wednesday afternoon, he offered no explanation for why this information wouldn't be shared with environmental regulators or emergency responders.

Harrison said Wednesday that she wasn't aware energy companies were using the measure she helped craft to get around emergency plan requirements. She said the provision was inserted into the original bill to give coal plant operators planning to convert to cleaner energy some leeway with the Clean Smokestacks Act.

But as legislators enter the short session in May, she said making a fix to the oversight law is "kind of a no-brainer."

"It's been an important tool," Harrison said, "so I think we have to tighten it up."

N.C. regulators again cite Duke Energy over coal ash

They say Duke Energy deliberately pumped 61 million gallons of toxic coal ash waste into a canal that feeds into the Cape Fear River.

By David Zucchino

Los Angeles Times

20 March 2014

FAYETTEVILLE, N.C. - North Carolina regulators cited Duke Energy on Thursday, saying the utility deliberately dumped 61 million gallons of toxic coal ash waste into a tributary of the Cape Fear River, which provides drinking water for several cities and towns in the state.

The state Department of Environment and Natural Resources said the giant utility, responsible for a massive spill from a different coal ash containment pond Feb. 2, had illegally pumped the ash from two coal ash ponds at its Cape Fear plant in Moncure, N.C., and into a canal that feeds into the Cape Fear River.

Regulators said they caught Duke pumping the toxic ash March 11, one day after an environmental group took aerial photographs of what it said were pumps illegally dumping the waste. Environmental groups have accused the agency of coddling Duke Energy and allowing coal ash waste to seep for years from the utility's 14 coal-fired plants in the state.

The state agency said Duke Energy had been getting away with the dumping by telling regulators it was part of routine maintenance. Regulators said inspectors had determined that 44 million gallons of toxic waste had been pumped from one pond for 78 days, and 17 million gallons pumped from a second pond at the site for 31 days.

"We were notified by phone in August that Duke Energy intended to conduct routine maintenance work at these ash ponds," said Tom Reeder, director of the state Division of Water Resources. "The state's investigation revealed that the pumping activities ongoing at this plant far exceeded what would reasonably be considered routine maintenance."

The agency said it had notified downstream municipal water agencies of the dumping, but said they had not reported any problems with drinking water so far. Regulators said they were taking water samples at sites on the Cape Fear River, which runs through Fayetteville on its way to the coast near Wilmington, N.C.

The plant where the pumping took place is in central North Carolina, about 30 miles southwest of the state capital, Raleigh.

Late Thursday, regulators said they were responding to a report of a crack in an earthen dam that holds in coal ash waste at the Cape Fear plant.

Duke Energy used two pumps to bypass vertical spillway pipes, known as risers, that drain off excess surface water during heavy rains. But using the pumps risked dredging up dangerous heavy metals that settle at the bottom of the ponds.

Regulators said Duke illegally pumped so much water out of the ponds that "the impoundments no longer properly function as treatment systems."

Duke Energy, the nation's largest electric utility, also has been cited by state regulators for the Feb. 2 spill, which coated the Dan River with toxic coal ash sludge on the North Carolina-Virginia border for at least 70 miles. The state agency has sued the utility in state court alleging coal ash violations, precluding attempts by environmental groups to sue Duke Energy in federal court alleging violation of the Clean Water Act.

Duke Energy officials did not respond to a request for comment Thursday.

Coal ash is produced when coal is burned to create electricity.

Duke has 30 days to respond to the state's citation. After that, regulators could impose a fine of up to $25,000 a day for each violation. Duke is a $50-billion corporation.

Environmentalists accuse the agency of being too cozy with Duke as part of new leadership installed by a Republican takeover of state government. The current director, appointed by Republican Gov. Pat McCrory - who was a 28-year Duke employee - has downplayed enforcement and said the agency should serve "partners" and "customers" like Duke.

The Waterkeeper Alliance, an environmental group, took aerial photographs March 10 of what it said was illegal pumping and pressured state regulators to punish Duke Energy. The state agency, known as DENR, said inspectors visited the Cape Fear plant the day after the photos were taken as part of a statewide inspection of coal ash ponds after the Feb. 2 spill, which was the third-largest in U.S. history.

Peter Harrison, staff attorney for the Waterkeeper Alliance, criticized Duke for the dumping and state regulators for not cracking down on Duke over the Dan River spill and what he said had been years of illegal seepage from the utility's coal ash ponds.

"The only thing more disturbing than DENR's slow, carefree response in the wake of Dan River is Duke's audacious, clandestine pollution," Harrison said.

Harrison said state regulators were shown the photographs. He accused the agency of claiming that it had stumbled upon the violations "by some great coincidence."

Environmental groups have been pressing the state for years to require utilities to move coal ash from wet lagoons near waterways to dry, lined landfills away from sources of drinking water.

"If the Cape Fear coal ash were stored in a safe, dry, lined landfill away from the river, the Cape Fear River would not have been polluted, and Duke Energy would not be facing this latest legal problem,'' said Frank Holleman, an attorney with the Southern Environmental Law Center.

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