Federal Prosecutors Launch Criminal Investigation of NC Environmental Regulators
Federal prosecutors on Feb. 19 disclosed that 19 employees of the North Carolina Department of Environment and Natural Resources have been asked to produce documents in what U.S. Attorney Thomas G. Walker called a “criminal investigation of a suspected felony.” These documents should include but are not limited to “cash, check wire transfer and stock transfer” allegedly received from Duke Energy. They also are expected to testify before a grand jury on March 18.
The N.C. DENR has been accused of being soft on Duke Energy and its coal ash basins. On Feb. 2, a large pipe under a coal ash pond owned by Duke Energy ruptured, sending up to 82,000 tons of ash and 27 million gallons of tainted water into the Dan River about 23 miles upstream of the water intake for the city of Danville, Va. To put this amount in perspective, the spill is the equivalent of dumping 413 to 677 rail cars of toxic pollution into a public drinking water source.
The subpoenas reportedly are not limited to documents related to the Feb. 2 spill. They allegedly include documents going back to 2009.
In 2009, an EPA technical report about the Dan River Steam Station classified Duke’s 53-year old Dan River ash pond dams “significant hazard potential structures.”
“Duke could have avoided contaminating the Dan River and poisoning Virginia’s water supplies if it had removed its toxic ash heaps years ago after being warned by EPA,” said Robert F. Kennedy Jr., president of Waterkeeper Alliance, one of the environmental groups that has been most vocal about its concerns regarding the safety of the coal ash ponds.
Field inspections cited in the EPA report found the coal ash ponds at the Dan River Steam Station leaking and their surface sliding. The report, which is 133 pages long, noted that the basin originally was constructed in 1956 as a single embankment structure. The original structure was raised and made larger in 1967 and from 1976 to 1977 was raised and divided into two ponds by an intermediate dike, which are referred to as the primary pond and secondary pond in the report.
“The Primary and Secondary Ponds have been classified as significant hazard potential structures. Significant hazard potential structures are classified as structures where failure is not likely to result in loss of life, but may cause significant economic loss, environmental damage, disruption of lifeline facilities or can impact other concerns. The predominant risk of failure for the Primary and Secondary Ponds is environmental damage,” noted the report.
“The McCrory administration has allowed Duke Energy to act above the law,” said Yadkin Riverkeeper Dean Naujoks. “As long as we allow Duke to continue storing toxic coal ash in massive, outdated, unlined pits along our drinking water supplies across the state, it’s only a matter of time until the next disaster.”
The subpoenas, grand jury testimony and potential criminal charges might provide some insight into how or why Duke Energy was allowed to continue using containment systems environmentalists and the EPA claim were hazardous and structurally unstable.
Testing Reveals High Levels of Toxins
Laboratory results of water samples taken in the Dan River Feb. 4 by environmental group Waterkeeper Alliances, found that arsenic levels immediately downstream of the spill were nearly 30 times higher, chromium levels are more than 27 times higher and lead levels are more than 13 times higher than the levels found in a “background” water sample taken upstream of the spill.
Waterkeeper’s testing also found an arsenic concentration in the polluted water immediately below the discharge of .349 mg/L. Arsenic is a toxic metal commonly found in coal ash and is lethal in high concentrations. The .349 mg/L concentration found in Waterkeeper’s sample is greater than EPA’s water quality criterion for protection of fish and wildlife from acute risks of injury or death. It is more than twice as high as EPA’s chronic exposure criterion for fish and wildlife, and is almost 35 times greater than the maximum contaminant level (MCL) standard that EPA considers acceptable in drinking water.
Waterkeeper Alliance also found a lead concentration in the polluted water of 0.129 mg/L. Lead is another metal commonly found in toxic coal ash. Lead poisoning can cause developmental delays and permanent damage in exposed infants and children, as well as kidney damage and high blood pressure in adults. In very high doses, lead poisoning can cause death. The 0.129 mg/L concentration found immediately downstream of Duke Energy’s coal ash spill is more than double the EPA’s water quality criterion for protection of fish and wildlife from acute risks of injury or death. It is about 50 times greater than EPA’s chronic exposure criterion for fish and wildlife, and more than 1,000 times greater than EPA’s recommended action level to prevent contamination of drinking water.
Levels of other contaminants found in the sampling just below the discharge include: Manganese: .576 mg/L; Boron: .314 mg/L; Calcium: 34.7 mg/L; Zinc: .224 mg/L; and Iron: 84.6 mg/L.
Environmental Groups Filed Lawsuits
Waterkeeper Alliance and the local Waterkeepers group in North Carolina previously filed legal action against Duke Energy over its leaking coal ash ponds. Prompted by the threat of enforcement lawsuits by Waterkeeper and several other organizations, DENR filed four lawsuits against Duke Energy in 2013, alleging illegal pollution from leaking ash pits at all 14 of Duke’s coal-fired power plants in North Carolina.
DENR’s Aug. 16, 2013 complaint against Duke alleges that DENR had discovered illegal seeps flowing into the Dan River from “engineered discharges from the toe drains of the ash ponds.” DENR also accused Duke of contaminating groundwater near its ash impoundment with antimony, arsenic, boron, iron, manganese, TDS and sulfate. Six months after filing the suit, DENR has taken no action to force Duke to remedy the problems.
On Feb, 6, Waterkeeper Alliance attorney Pete Harrison patrolled the spill site and noticed an unusual discharge flowing down an embankment at the southwest corner of the plant’s coal ash impoundment. “This area caught my attention because the rocks were stained bright orange and there was water cascading down, right into the river,” he 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.”
Harrison said the discharge concerned him because he’d reviewed the discharge permit for the facility and knew that there wasn’t supposed to be anything coming discharging from the ash pond at that point.
Because DENR’s court papers fail to identify the location of the “engineered discharge” at the Dan River facility, it remains unclear whether the ongoing discharge Harrison reported is the same illegal outfall that DENR identified months ago, or if it is instead another leak in the impoundment that regulators failed to notice.
Leaks Continue
Both Duke Energy and DENR have tried to downplay the spill, but recently had to contend with a report from the U.S. Fisheries and Wildlife Service documenting an “ash bar" that is 75 feet long, 15 feet wide and 5 feet deep near the spill site. Both Duke and DENR also had to backtrack on their initial statements that the levels of toxic chemicals in the river were within state standards.
The results from a second round of water sampling on the Dan River confirmed that highly contaminated coal ash seepage still is pouring out of the same Duke Energy ash impoundment. The leak is located about a third of a mile upstream of the pipe where the Feb. 2 spill occurred.
Laboratory analysis of the discharge confirmed that it contains multiple pollutants that are characteristic of coal ash, including the toxic heavy metals arsenic and chromium. Arsenic concentrations measured .187 mg/L, more than 18 times the human health standard and over 3 times the applicable water quality standard.
On Feb. 12, Duke Energy began vacuuming ash out of the river, and pumping it back into the leaking impoundment.
“How can Duke’s cleanup plan possibly work if regulators are turning a blind eye to an ongoing leak like this?” asked Waterkeeper Alliance Executive Director Marc Yaggi. “While Duke sucks up a small amount of the ash it spilled … arsenic and other toxins are still pouring unabated into the Dan River just upstream. If stopping the flow of heavy metals into the Dan River isn’t part of Duke’s cleanup plan, how can the Dan River possibly recover…?”
Waterkeeper Alliance and other groups have called on the U.S. EPA to take over enforcement efforts from DENR, which has been accused of withholding information about the spill, misinforming the public about contaminant levels in the river and failing to hold Duke Energy to the same standards as other regulated entities.
