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John D. Simmons/Charlotte Observer/MCT/Landov

Duke Energy’s dirty water

by Jonathan M. Katz @KatzOnEarth March 5, 2014

The Department of Justice is investigating the company for evidence of criminal wrongdoing in a massive coal ash spill. But this comes too late for some North Carolina residents, who feel abandoned by regulators

Topics:
Environment
Energy
North Carolina
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1.Toxic sludge

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ON THE DAN RIVER, N.C. — Security is high at the Duke Energy power plant in Eden, N.C., a month after the plant spilled 35 million gallons of toxic coal-ash slurry into the Dan River. And it isn’t hard to see what has made company officials nervous.

Federal prosecutors and environmental advocacy groups are investigating Duke, the country’s largest electricity provider, for evidence of criminal wrongdoing. Thousands of people in towns downriver are angry and scared; town officials are openly complaining that Duke kept them out of the loop at key moments after the spill. That intense scrutiny is an uncomfortable development for a company accustomed to cozy relationships with North Carolina officials. The state’s governor, Pat McCrory, spent 29 years as a Duke Energy employee and has benefited handsomely from its support of his campaigns.

Jenny Edwards of the Dan River Basin Association scoops coal ash from the banks of the river.
Gerry Broome/AP

With the riverside plant compound under close guard, the only way for most people to get a close look is from the placid waterway along the border of North Carolina and Virginia where the coal ash spilled.

“Look at this. People are going to be affected by this their whole lives,” said Justin Quinlivan, pointing his kayak paddle toward a stripe of sparkling black sludge along the muddy bank. Men in Duke Energy hardhats looked on from a scaffold above. The former Marine, now member of a local chapter of environmental watchdog the Waterkeeper Alliance, has come out regularly to conduct water tests that, his group says, show the river is more dangerous than the company or regulators have admitted.

Coal ash contains high levels of arsenic, lead, selenium and other heavy metals that the U.S. Environmental Protection Agency says can cause cancer, birth defects and respiratory distress. The slurry here came from the towering four-stack Dan River Steam Plant, which burned coal to provide power for up to 300,000 customers a year from 1949 until 2012, when Duke Energy replaced it with a facility powered by a newly abundant domestic supply of natural gas.

The coal plant, which used the river for cooling and supplementary power, kept its ash in an adjacent 1,700-foot-long unlined pit. Ironically, experts say, the plant likely built up an even greater supply of the waste in recent years, when clean-air regulations resulted in more ash being scrubbed from the smokestacks and dumped on the ground.

Federal prosecutors and environmental advocacy groups are probing Duke, the country’s largest electricity provider, for evidence of criminal wrongdoing. Thousands of people in towns downriver are angry and scared; town officials are openly complaining that Duke kept them out of the loop at key moments after the spill. That intense scrutiny is an uncomfortable development for a company accustomed to cozy relationships with North Carolina officials. The state’s governor, Pat McCrory, spent 29 years as a Duke Energy employee and lobbyist and has benefited handsomely from its support of his campaigns.

With the riverside plant compound under close guard, the only way for most people to get a close look is from the placid waterway along the border of North Carolina and Virginia where the coal ash spilled.

Federal prosecutors and environmental advocacy groups are probing Duke, the country’s largest electricity provider, for evidence of criminal wrongdoing. Thousands of people in towns downriver are angry and scared; town officials are openly complaining that Duke kept them out of the loop at key moments after the spill. That intense scrutiny is an uncomfortable development for a company accustomed to cozy relationships with North Carolina officials. The state’s governor, Pat McCrory, spent 29 years as a Duke Energy employee and lobbyist and has benefited handsomely from its support of his campaigns.

With the riverside plant compound under close guard, the only way for most people to get a close look is from the placid waterway along the border of North Carolina and Virginia where the coal ash spilled.

Federal prosecutors and environmental advocacy groups are probing Duke, the country’s largest electricity provider, for evidence of criminal wrongdoing. Thousands of people in towns downriver are angry and scared; town officials are openly complaining that Duke kept them out of the loop at key moments after the spill. That intense scrutiny is an uncomfortable development for a company accustomed to cozy relationships with North Carolina officials. The state’s governor, Pat McCrory, spent 29 years as a Duke Energy employee and lobbyist and has benefited handsomely from its support of his campaigns.

With the riverside plant compound under close guard, the only way for most people to get a close look is from the placid waterway along the border of North Carolina and Virginia where the coal ash spilled.

The Dan River flows toward the decommissioned Duke Energy coal-fired steam station in Eden, N.C.
John D. Simmons/Charlotte Observer/MCT/Landov

On Feb. 2, a Duke employee noticed a large sinkhole in the ash pond; engineers quickly determined that a 48-inch concrete storm pipe running underneath had ruptured. Researchers from Wake Forest University, who flew a remote-controlled drone over the plant weeks after the spill, estimated that as much as 20 million gallons of toxic slurry was forced through the hole in the pipe and out into the river on the first day alone.

That ash is now glued to the sides and bottom of the river and to low-hanging trees along it. Swaths of its banks are coated in thick, sooty black, with silvery sparkles catching the sunlight. Even brief contact with the sandy shore can leave glistening metallic traces on a hand.

It took Duke six days to plug the leak, delayed in part by high river levels and a large snowstorm that blasted the area days after the spill, according to a timeline provided by the North Carolina Department of Environment and Natural Resources (DENR). As scrutiny grew, the company acknowledged a second storm pipe had also ruptured; that one was plugged Feb. 19, though North Carolina officials said on Feb. 28 that the plug in the smaller drain was still not entirely set. The ash lined 70 miles of the riverbed, in some places up to five feet deep, the U.S. Fish and Wildlife Service told reporters.

Environmental advocates believe that the ash and toxic chemicals may have been leaking for years before the spill was discovered — and are likely still leaching into the river from several other locations.

On Friday, North Carolina officials notified the company that it had failed to apply for proper wastewater permits and properly maintain the ash pond, and recommended fines. That day, regulators announced the discovery of a gallon-per-minute leak of emergency drainage from a Duke Energy plant near Asheville, N.C.

Reached for comment Friday, Duke Energy spokesman Tom Williams said all the leaks at the Dan River site have been plugged. He denied that any further spillage continued there.

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2.Eroded trust

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Kevin Eichinger of the Environmental Protection Agency with a map of the coal ash spill.
Chris Keane/Reuters

To date, there have been no verified reports of acute health problems for people, wildlife or the surrounding forest as a result of the spill. An EPA spokeswoman said in an email that tests have “shown no impacts to the local drinking water,” though the agency continues to monitor the situation. There have long been various toxins in the river, such as mercury and polychlorinated biphenyls, or PCBs, from the coal plant and upstream textile factories, environmental advocates and city officials said.

But a clear casualty for many in the river’s path has been trust in the company and officials. An initial lack of transparency about the spill has caused many to doubt continuing reassurances that the problem is under control. 

The lack of trust is palpable in Danville, Va., a town of 43,000 whose drinking water intake sits just 20 miles downstream of the spill. A former textile and tobacco hub that has seen thousands of jobs disappear with the dissolution of those industries, Danville and the surrounding area had been hoping to revitalize the local economy using real estate, tourism and recreation on the river from which the town took its name.

 

It wasn’t until Monday that I heard. Monday afternooon. By then, people (in Danville) were saying, ‘Hey, what’s with the river? It’s gray.’

Joe King

Danville city manager

Despite the river’s importance to Danville, Duke Energy — which does not provide electricity on the Virginia side of the border — was slow in notifying town officials. City Manager Joe King said that, rather than contact Danville officials after the spill was discovered, Duke Energy called a fire station in the town around 5:30 p.m. on Feb. 2 and misleadingly told the firefighter who answered that ash had not entered the river. “It wasn’t until Monday that I heard. Monday afternooon,” King said in an interview. “By then, people (in Danville) were saying, ‘Hey, what’s with the river? It’s gray.’”

“As far as us being the first affected community downstream, the first water treatment facility downstream, we don’t believe we got adequate notification,” King said. “They certainly knew a lot more than they told us. And they gave us no basis to understand what was the extent of this thing.”

Citizens listen as representatives from the EPA and Duke Energy speak at a town gathering in Eden on Feb. 19.
Chris Keane/Reuters

About an hour and a half after calling the fire station, the company notified North Carolina’s Department of Public Safety that part of the spill had entered the river but wrongly stated that the waterway was “not a source of drinking water,” according to the DENR.

Williams would confirm only that Duke Energy contacted someone in Danville the night of the spill but said, “I don’t know who we reached.”

Frustration has boiled over at community forums with company, state and federal officials, where angry residents insist their concerns are not being addressed. “I told them, ‘When they test the water, they test it off the end of the dock, not where the coal ash is (along the banks),’” said Morris Lawson, 44, the owner of a body shop in nearby Pelham, N.C, who fished four days a week on the Dan before the spill. He worries that the river, a prime source for striped bass, will be permanently poisoned. “I got a 10-year-old boy,” he said, chewing on a burned-out cigar. “I grew up fishing on this river. I want him to grow up fishing on the river. (But) I don’t think there’ll be anything here to catch.”

Nor did it help soothe public perceptions when, a week after the spill was detected, North Carolina officials acknowledged that arsenic levels in the river initially exceeded safe levels, despite assurances to the contrary — an error DENR official Tom Reeder chalked up to “an honest mistake.”

“The water is still not safe, I don’t think,” said Omar Alababseh, 20, who works at his family’s fast-food restaurant in Danville. “I don’t think the government cares about it.” 

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3.Duke’s political ties

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Environmental advocates have seized on the accident to boost a larger goal of tightening regulations on the energy industry — a fight whose political stakes ratcheted up with McCrory’s 2012 election.

North Carolina Gov. Pat McCrory.
Mike Theiler/Reuters

McCrory remained on the Duke payroll during his time as mayor of Charlotte — the largest city in North Carolina, where Duke Energy is headquartered. (He ran for office only after his employer gave him permission, he told The Raleigh News & Observer this week.) After resigning from the company to run for governor, he worked for Moore & Van Allen, a law and lobbying firm that has provided counsel to Duke in the past. The energy company has been a key supporter of his political career: Duke, its employees and their spouses made more than $300,000 in direct campaign donations for McCrory’s gubernatorial runs, along with more than $760,000 in donations to the Republican Governors Association, according to campaign finance filings and Democracy North Carolina.

The governor maintains he is independent of his longtime employer. "This notion that Duke has been getting any favorable treatment is totally untrue," McCrory spokesman Joshua Ellis said by phone Wednesday, arguing that the governor's administration was the only one "in the state’s history to take any enforcement action on coal ash." Ellis said McCrory's decision to remain an employee of the company even while holding major offices such as Charlotte mayor was a common practice in North Carolina. 

Critics say that with McCrory in the governor’s mansion, state environmental regulators have given Duke a pass. At the time of the Dan River spill, environmental groups were in the process of suing to force the safe removal of ash ponds at three other riverside Duke Energy coal plants. Previous attempts to punish the company for violating regulations of the federal Clean Water Act were frustrated when the state intervened, forcing tiny settlements of less than $100,000 — pinpricks for a company with a market capitalization of $42 billion.

If you knew you were violating the Clean Water Act and you still did it, that’s a criminal act.

Peter Harrison

Staff attorney, Waterkeeper Alliance

Didi Fung, a contractor for the EPA, collects water samples from the Dan River as state and federal environmental officials continued their investigations of the spill.
Gerry Broome/AP

“It is very clear that (the DENR) has attempted to frustrate the efforts of citizens’ groups to enforce the law, and they have negotiated privately to come up with a sweetheart deal,” said Frank Holleman, senior attorney for the Southern Environmental Law Center, which has been involved in several of the lawsuits.

DENR spokesman Drew Elliot responded, “As the environmental regulator in North Carolina, we take enforcing the law seriously. When (DENR chief John) Skvarla came into office in January 2013, within weeks he learned of the problems with coal ash and within 45 days filed suit to enforce the law. We see that as our obligation to enforce the Clean Water Act.”

Under pressure, McCrory has pledged to get tougher. In a letter sent to Duke Energy on Feb. 25, he gave the company until March 15 to provide state regulators with detailed plans for its coal-ash repositories near rivers and other waterways. Though the governor expressed a “primary desire” that coal-ash ponds be moved, he did not require that such relocations be included in the plans.

Williams said Friday that the company will respond to the governor’s letter by the deadline.

But the bigger threat to both the governor and the company’s bottom line may come from Washington. Federal officials have issued subpoenas demanding information about the spill and the relationship between state regulators and Duke Energy. Advocacy groups say one key will be learning whether Duke was aware that it has been dumping chemicals into the river without a permit. “If you knew you were violating the Clean Water Act and you still did it, that’s a criminal act,” said Peter Harrison, a staff attorney with Waterkeeper Alliance.

While the political and legal cases shake out, Duke has been vacuuming ash from the river — though where the company dumps it, Williams wouldn’t say. Federal and state inspectors, along with Duke Energy workers, continue testing the area and working to plug the holes. On a visit last week, contractors for the EPA and U.S. Fish and Wildlife took samples of the river, then left in a Duke Energy van. Citizen-advocates like Quinlivan say they will continue patrolling the river and taking samples of their own to ensure that the waterway remains safe for the communities that depend on it. “This river isn’t theirs. This is ours,” Quinlivan said.

Editor's note: This story has been updated with comment from Gov. McCory's spokesperson. Also, the article previously stated that after working for Duke Energy, Gov. McCrory became a lobbyist for the company. McCrory was not a registered lobbyist.