Criminal Investigation Opened into Duke Coal Ash Spill – New Spill Found

By Carissa Joines

On Thursday, February 13, rumors that the federal government would once again have to step in to set the North Carolina State Government back on the rails were confirmed with the release of a US Attorney’s subpoena of the NC Department of Environment and Natural Resources (NCDENR) in the matter of the recent Duke Energy coal ash spill into the Dan River.

dan river steam station map
dan river steam station map

The US Attorney’s office has launched “an official criminal investigation of a suspected felony” against Duke Energy and has included a thorough search through NCDENR’s records as a part of their Grand Jury investigation, which will be conducted March 18-20 in the US District Court in Raleigh.

The criminal investigation is in response to a coal ash spill that occurred at a Duke Energy plant located in Eden, NC. The spill, reported by Duke to have occurred on Sunday, February 2, dumped toxic waste into the Dan River at the Dan River Steam Plant, a former coal plant which is now in the process of being decommissioned. The spill was the result of a break in a storm water pipe which flows beneath one of two storage basins where the toxic sludge left over from burning coal has been stored since the plant closed in 2012. The spill has been said to be the third largest ever in the U.S.

On Wednesday, Duke Energy began vacuuming ash from last week’s spill out of the river, and pumping it back into the leaking basin. One day later, February 6, Waterkeeper Alliance attorney Pete Harrison was patrolling the spill site and noticed an unusual discharge flowing down an embankment at a corner of the basin, about 1/3 mile from the site of the initial leak.

riverkeeper alliance photo of new spill area
riverkeeper alliance photo of new spill area

“This area caught my attention because the rocks were stained bright orange and there was water cascading down, right into the river,” Harrison said. “When I paddled closer, I could see that the rocks had a thick, slimy coating, an indication of iron-oxidizing bacteria that is often present where seepage is bleeding out of coal ash pits.”

According to the Waterkeeper Alliance, Harrison’s team returned to the area four more times since the initial discovery of the second leak to see if anyone had attempted to stop it, but the discharge was still flowing unabated each time they went.

Duke initially reported as much as 80,000 tons of coal ash and 27 million gallons of contaminated water flowed into the Dan River as a result of the spill. That is enough sludge to fill 73 Olympic-sized swimming pools or 500 train cars. The public was not notified of the spill for at least 24 hours after it occurred, and the notifications included inaccurate information about the safety of the water in the Dan River.

“If 500 rail cars of toxic waste laden with heavy metals had derailed, there would have been immediate notification and quick news coverage in order to inform and protect the public,” said Donna Lisenby, Global Coal Campaign Coordinator for Waterkeeper Alliance. “The delay in reporting this spill is inexcusable.”

riverkeepers taking samples of new seepage area
riverkeepers taking samples of new seepage area

Not only did Duke delay going public with the spill, they provided the public with inaccurate information about the effect the disaster would have on the river and the surrounding population. Duke informed the public that the City of Danville’s drinking water was not affected by the spill. However, Rhiannon Bowman, an independent journalist and documentarian who runs the website Coal Ash Chronicles, found that this could not have been based on facts or data, since the water was only initially sampled moments before the press release was issued, and could not have been tested at the time of the notification. According to Coal Ash Chronicles:

Barry Dunkley, the division director of water and wastewater treatment for Danville Utilities, told the Coal Ash Chronicles that the water utility must grant Duke Energy access to the water utility to sample water at the intake and that the energy company began sampling at 4 pm Monday afternoon, 26 hours after the coal ash spill began and moments before press releases were sent out stating that there was no reason to be concerned about the city of Danville’s drinking water.

DENR initially said water tests showed levels of arsenic, one of the toxic elements found in coal ash, were within safe levels. However, they later admitted the levels were misreported, due to the levels having been compared to safety standards for fish and wildlife, not humans, and were actually four times higher than safety standards for people allow. On Sunday, February 9, a week after the spill occurred, McCrory Administration officials admitted that the results of samples taken from the Dan River two days after the spill at the Eden plant were reported incorrectly, and that the water was in fact highly toxic and unsafe for public exposure. The NC Department of Health and Human Services (NCDHHS) then issued a statement saying people should avoid even recreational contact with the water, sediment, and ash in the Dan River downstream from the spill, and should avoid eating any wildlife from the area until further notice.

the dan river basin courtesy dan river basin association
the dan river basin courtesy dan river basin association

The Dan River is unusual in that it flows both North and South as it makes its way from the Mountains of Virginia back and forth across the NC/VA line before emptying into the Kerr Lake reservoir just west of Hwy 85 at the state line. It is due to this anomaly that Danville, VA, is downriver from Eden, NC, where the spill occurred. Not only does the city of Danville draw its water from the Dan River, cities as far as the Tidewater area of Virginia draw their water from the reservoirs fed by the Dan. It is perhaps due to the inter-state impact of this spill that the Federal government chose this particular case as their entry point into addressing the often shady dealings between NCDENR and Duke Energy.

Although weak, NC has some regulations regarding coal ash storage and environmental testing of the areas surrounding these impoundments. However, there is no real power provided for the enforcement of these regulations, nor any standardization of penalties or responsibility for clean-up when problems occur.

Coal-Periodic-Table from Coal Ash Chronicles
25% of periodic table found in coal ash – courtesy coal ash chronicles

Sources within environmental groups monitoring the spill have noted significant frustration inside both the federal agencies involved in this matter and within their own ranks regarding the way that NC DENR has historically handled Duke Energy. The Clean Water Act allows citizen groups to bring lawsuits against entities polluting public waters. This same Act however, provides state agencies overseeing environmental matters 60 days to step in and take over the suit on behalf of the state. In three recent cases, NC DENR has done just that, stepping in at the 58 and 60 day marks to take over the suits against Duke Energy. Instead of prosecuting the offenders on behalf of the state, they have attempted settlement with Duke, imposing a fine of just over $99,000 for these violations.

Governor McCrory, who spent 28+ years working for Duke, has touted that his administration was “the first in North Carolina history to take legal action against the utility regarding coal ash ponds.” Their “legal action” was more of a high-five than a slap on the wrist, with the proposed settlement amounting to a paltry .0002% of Duke’s net worth, which is estimated at $50 billion.

With the criminal allegations, federal investigation, and potential lawsuits over the spill still in development, this story is far from over. This new development may be just the thread that Riverkeepers, citizen action groups, and energy customers caught in Duke’s monopoly have been looking for to unravel the stranglehold that Duke Energy has kept on North Carolina’s environment and energy production.