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Duke Energy Ignored Warnings Before Ash Spill, Prosecutors Say

Duke Energy Ignored Warnings Before Ash Spill, Prosecutors Say

By Bruce Henderson, The Charlotte Observer (TNS)

CHARLOTTE, N.C. — Duke Energy ignored repeated warnings before a broken pipe dumped tons of coal ash into the Dan River last year, prosecutors said Thursday as the company faced a federal judge.

Duke twice refused to spend $20,000 on video inspections of the pipe that would have shown it to be made of a weaker-than-believed material, a government lawyer told Senior U.S. District Judge Malcolm Howard.

Instead, the company filed guilty pleas to nine criminal charges that it has agreed to settle for $102 million.

Duke’s chief legal officer, Julia Janson, quietly acknowledged the company’s guilt in a 10-minute recitation of nine misdemeanor counts against three Duke subsidiaries. Chief executive Lynn Good did not appear in court.

Sentencing was set to begin Thursday afternoon.

Duke has agreed to pay $68 million in fines, which it can’t pass to customers and is one of the largest under the 43-year-old Clean Water Act.

Duke also agreed to serve five years of probation under a court-appointed monitor and pay $34 million for environmental projects.

Two stormwater pipes ran under a 27-acre ash pond at the Dan River plant.

Installed in 1954, the part of the 48-inch pipe that failed on Feb. 2, 2014, was made of corrugated metal — a fact that plant employees knew but engineers and budget writers did not, attorney Banu Rangarajan of the U.S. Attorney’s office in Raleigh told the judge. They believed the whole pipe was stronger reinforced concrete.

Duke had repaired leaks in both pipes in 1979, Rangarajan said, and independent consultants had identified the aging pipes as potential problems since 1981.

But Duke didn’t measure the water flowing from the pipes, to detect leaks, as consultants repeatedly recommended, she said.

“Duke continued to not address warnings of the potential for problems of this type,” Rangarajan said.

When plant officials asked for $20,000 internal video inspections of the aging pipes in 2011 — which would likely have shown heavy corrosion in the pipe that failed — Duke’s corporate office twice denied the request.

The money was denied again in 2012, when Dan River’s coal unit was retired.

“Had they done so, the actual composition of the 48-inch pipe would have been made known and the leaks would have been detected in the 36-inch pipe,” Rangarajan told Howard.

Video inspections of the 36-inch pipe that didn’t break, done days after the spill, found water jetting into it from the ash pond above it.

“This closes an important chapter for the company and is allowing us to focus on the future,” Duke spokeswoman Paige Sheehan said in a brief statement during a break in the hearing.
The company has emphasized the steps it has taken since the spill. Those include an overhaul of coal ash management, including the naming of an outside advisory board, and closing ash ponds in both Carolinas.

The Dan River spill was the nation’s third-largest of the past decade. Neither of the other two spills, in Tennessee and Pennsylvania, resulted in criminal investigations.
Duke also pleaded guilty to ash violations at four other power plants.

Those charges involve improper maintenance of equipment at a power plant in Chatham County, leading to ash pond leaks into the Cape Fear River. Duke had also failed to do a recommended inspections of leaking pipes called risers, prosecutors said.

At three other plants the charges say Duke illegally channeled seeps from ash ponds into the rivers.

The federal grand jury investigation that resulted in Thursday’s expected plea began two weeks after the Dan River spill.

Wide-ranging subpoenas went to Duke, 18 current or former state environmental regulators and the Utilities Commission. The subpoenas demanded inspection records, correspondence and enforcement files for the 108 million tons of ash Duke stores in 32 ponds.

U.S. attorneys in Charlotte, Greensboro and Raleigh filed charges against Duke in February.

The $68 million in fines appears to be the second-largest penalty ever assessed under the landmark Clean Water Act, which was enacted in 1972. It’s also the largest environmental penalty the century-old Duke has paid, dwarfing the $8 million in fines and environmental projects in a 2009 air-pollution case in Indiana.

Duke, which earned nearly $1.9 billion in 2014, recorded a 14-cent charge on its fourth-quarter earnings to reflect the fine.

The settlement doesn’t resolve state investigations of groundwater contamination from coal ash. Duke is fighting a $25 million state fine levied in March for contamination at the Sutton power plant in Wilmington. The state has also cited Duke for violations at its Asheville plant, but has not issued a fine.

Duke also faces more than a dozen lawsuits over ash contamination filed by North Carolina and advocacy groups, and six shareholder suits claiming company officers and directors placed Duke at financial risk.

(c)2015 The Charlotte Observer (Charlotte, N.C.) Distributed by Tribune Content Agency, LLC.

Photo: Duke Energy has pled guilty to nine criminal charges stemming from a broken pipe that dumped coal ash into the Dan River last year. Photo Stuart McAlpine via Flickr https://flic.kr/p/9nF5gN

Millions Of Tons Of Toxic Coal Ash Are Piled At Power Plants Across The Nation

Millions Of Tons Of Toxic Coal Ash Are Piled At Power Plants Across The Nation

By David Zucchino, Los Angeles Times (TNS)

COLON, N.C. — After a massive coal ash spill coated the Dan River in North Carolina with 70 miles of toxic gunk a year ago, state lawmakers required coal ash stored at four Duke Energy plants in North Carolina to be moved to safer locations.

Now tons of coal ash may end up across the road from Joe Bray’s tidy little home and vegetable garden in the piney woods of central North Carolina.

“It’s going to pollute this whole area, I guarantee you,” Bray, a mustachioed glass blower, said of Duke Energy’s plan to dump up to 8 million tons of coal ash in an abandoned clay mine in rural Lee County.

Duke has proposed moving tons of coal ash from leaky basins more than a hundred miles away to a rural county free of coal ash headaches. Bray and his neighbors, along with outraged county commissioners, are asking Duke: Why us?

“Duke wants to make us the coal ash dump site for the whole state,” said John Crumpton, the Lee County manager.

County commissioners issued a resolution Jan. 5 accusing Duke of springing the plan on the county without notice. It said the dumping would create “environmental risks” and impose a “stigma” on the county.

For years, coal ash has been the toxic waste that nobody wants. Millions of tons of coal ash are piled at coal-fired power plants across the nation, with 140 million tons generated each year.
Coal ash, waste left over from burning coal to produce electricity, contains mercury, lead, arsenic, selenium and cadmium. Exposure to high levels can cause cancer and neurological problems.

Two recent spills — a 2008 release in Tennessee that dumped toxic sludge 6 feet deep and the Feb. 2, 2014, spill on the Dan River — have forced utilities to find safer ways to store the waste.

In North Carolina, Duke Energy is storing 130 million tons of coal ash at 32 sites at 14 power plants. The new state law requires Duke to safely move all of it by 2029, and from four leaking ash ponds by 2019.

“This community is not willing to stand by and be dumped on — it’s a toxic mess, and we don’t want it,” said Therese Vick of the Blue Ridge Environmental Defense League, which has organized hundreds of local residents opposed to Duke’s plan.

The utility says abandoned clay pits in Lee County and 15 miles away in neighboring Chatham County are ideal to safely store ash in dry, lined, covered pits as “structural fill” to be monitored for 30 years for leaks or “leachate” — liquid that has dissolved harmful substances.

Mike Hughes, Duke Energy’s vice president for community relations, said the ash will be encased in several layers of impermeable, high-density plastic. Hughes said there isn’t enough room at all of its plants to build new ash storage sites. Lee and Chatham were chosen for their central locations, high capacity and proximity to rail lines, he said.

Hughes said Duke Energy regretted the late notice, in mid-November, to the counties, which he attributed to time constraints.

Like utilities nationwide, Hughes said, Duke has to find a better way to store waste from coal-fired plants that provided cheap energy for decades. “And there aren’t that many communities saying, ‘Bring it here,'” he said.

Duke has contracted with Charah Inc., a Louisville, Ky.-based waste management company that bought the two clay mines and filed coal ash permit applications with state regulators. Charah plans to store the ash on 118 acres at the former Colon Mine.

A mammoth loading effort would transport ash by rail more than a hundred miles from each of two Duke plants — near Charlotte to the west and Wilmington, N.C., to the east. Critics say that would drastically alter the rural character around the tiny, former brick-making community of Colon.

“Duke is hitting the poorest rural neighborhoods, where they think people won’t be able to fight back against a big corporation,” said Donna Bray, Joe’s Bray’s wife, who’s worried about contamination of the vegetable garden that provides 50 percent of the couple’s food.

More than 100 alarmed residents packed Mount Calvary Baptist Church in Colon one cold January night to fight the plan.

They were evenly split between black and white, many of them elderly. Others were homemakers or middle-aged men wearing ball caps, hunting jackets and abundant facial hair.

Organizers passed out “No Coal Ash” yard signs and yellow stickers that read “Duke: Don’t Dump Coal Ash On Our Communities” — to be attached to utility payments mailed to Duke Energy.
Vick, the organizer, displayed a map showing nearly 100 clay mine pits in the state, including three near Duke Energy’s corporate headquarters in Charlotte. That prompted several people to ask, loudly, why Duke doesn’t dump its coal ash there.

Crumpton, the county manager, said Duke proposes paying Lee County nothing in fees to store ash. He said the best way for the utility to dispose of its ash is to keep it right where it is — in counties where Duke has paid millions in local taxes.

Hughes said the law does not require fees for coal ash stored in clay pits. But he said Duke is willing to discuss possible payments with county officials.

Lee County is conservative, with little tradition of environmental activism. But residents are also hunters, fishers and backyard gardeners wary of big corporate outsiders who might threaten their air, water and wildlife.

“They’re wanting to dump poison right where we live and eat,” said Barbara Wood, an elderly hat maker and local resident who walked into the church meeting with the help of a cane.

Her husband, Major Wood, a retired postal worker, worries that the graves of his grandparents — buried behind the church — would be threatened by any leak of coal ash stored just down the road.

Duke, the country’s largest electric utility, has an unlikely ally: the Southern Environmental Law Center in nearby Chapel Hill. The center has lambasted Duke for years over its handling of coal ash, and has fought the utility in court.

Frank Holleman, a senior attorney at the center, said storing coal ash in dry, lined pits away from waterways is exactly what the center has been demanding of Duke for years.

“On the face of it, the permit application meets the criteria we’ve been pushing for,” Holleman said. “You can’t just dump coal ash in a hole.”

But Holleman criticized Duke for failing to clean up the Dan River spill. He said 92 percent of the 39,000 tons of coal ash dumped a year ago still has not been removed. State regulators say river water has been restored to pre-spill quality.

The permit applications will be reviewed by the North Carolina Department of Environment and Natural Resources. The agency and Duke Energy are being investigated by a federal grand jury in Raleigh for possible criminal violations over the handling of the Dan River spill.

Jamie Kritzer, a spokesman for the agency, said regulators are reviewing the applications and will submit the plans for public comment.

The day after the church meeting, Joe Bray, 56, and his neighbor, Shawn Moore, stomped through the woods to inspect the old Colon Mine site. Bray carried a shotgun, having spotted an aggressive coyote on a previous jaunt.

Moore, 26, a college student born and raised next to the mine, recalled fishing for bass and crappie in the water-filled clay pits. They are home to ducks, geese, beavers, otters and an occasional bald eagle.

“Coal ash is toxic,” Moore said as he stood next to a pit the size of two football fields. “It’s going to seep out or get blown out by wind. Then what?”

Bray said lining the pits with heavy plastic is like lining them with a plastic bag — it will eventually deteriorate and allow ash to escape.

“And nobody is going to be able to sell their house with a coal ash dump next door,” he said.

Photo: Barbara and Major Wood on January 26, 2015, at their home near a clay mine pit in Lee County, N.C., that Duke Energy wants to fill with eight tons of coal ash. The Wood family and hundreds of other local residents have protested a proposal by Duke to dump coal ash waste in the rural county in central North Carolina. (David Zucchino/Los Angeles Times/TNS)

EPA Rules On Coal Ash May Disappoint Environmentalists, Buoy Industry

EPA Rules On Coal Ash May Disappoint Environmentalists, Buoy Industry

By Sean Cockerham, McClatchy Washington Bureau (TNS)

WASHINGTON — The federal government is about to announce its first rules for the handling and storage of potentially toxic coal ash, months after tons of the waste spilled into a major river in North Carolina.

Environmental groups, though, are preparing for disappointment. The Obama administration appears likely to refuse to designate the material as hazardous and could let states decide whether to enforce the rules.

“It will be incredibly disappointing and reckless if EPA doesn’t solve the problem that it knows how to solve,” said Lisa Evans, an attorney for Earthjustice.

The Environmental Protection Agency is expected to release the new rules Friday. In the meantime, utility industry officials and environmental groups have been lobbying federal regulators in a series of meetings the past several weeks with the White House Office of Management and Budget.

Coal ash is the dustlike material that’s left over when pulverized coal is burned to fuel electrical power plants. It’s stored in about 1,000 sites nationwide, including in ponds and landfills. It’s known to contain toxic materials such as arsenic and selenium and, according to the EPA, without sufficient protection the contaminants in coal waste can leach into groundwater and migrate to sources of drinking water.

The federal government always has left it up to the individual states to manage coal ash storage and disposal, and the result is an inconsistent patchwork of regulations.

Pressure for federal intervention began in 2008, when a dike rupture at a Tennessee power plant spilled more than 1 billion gallons of ash slurry that covered 300 acres and flowed into two rivers. But the Obama administration delayed action until a federal court order last fall demanded that it get moving, setting up Friday’s announcement of how the EPA is going to deal with coal ash.

Federal disclosures show that more than two dozen utilities and other energy interests have had their lobbyists working in Washington to influence coal ash decisions this year, including Duke Energy of Charlotte, N.C, which in February spilled up to 39,000 tons of coal ash into the Dan River in North Carolina and has ongoing problems disposing of more than 100 million tons of the ash elsewhere in the state.

On the other side, lobbyists for the Southern Environmental Law Center and the League of Conservation Voters have been pressing for federal intervention.

If the EPA declares coal ash a hazardous waste it will mean strict and costly new rules for the material, backed up with federal enforcement. But if the agency decides it’s non-hazardous, the new requirements will be more modest and citizens might have to sue to get them enforced.

Most analysts expect the EPA to declare the coal waste non-hazardous, based on signals from the agency.

Clearview Energy Partners, an energy research firm in Washington, said in a research note that the EPA appears to have been influenced by state regulators worried that a hazardous designation would prove costly for municipal landfills that have accepted coal ash.

Influential members of Congress are also pressing the EPA not to start policing coal ash. Sen. James Inhofe (R-OK), the incoming chairman of the Senate Committee on the Environment and Public Works, said states have “responsibly and effectively managed coal ash” without federal intervention.

“In the new Congress, my colleagues and I will intently review the impacts this rule could have to our economy and electricity reliability as well as highlight how states are leading the way on properly disposing and recycling coal ash,” Inhofe said in an emailed statement.

The Utility Solid Waste Activities Group, an industry trade group, favors new rules — as long as coal ash is allowed to be managed as non-hazardous. The Environmental Protection Agency has previously “concluded on four occasions that coal ash need not be regulated as a hazardous waste, and we agree with the agency on that point,” said Jim Roewer, executive director of the group.

Declaring coal ash a hazardous waste also would hurt the companies that recycle coal ash and make it into building materials, Roewer argued.

Photo: Robert S. Donovan via Flickr

Rural N.C. Sites Become Dump Grounds For Unwanted Coal Ash

Rural N.C. Sites Become Dump Grounds For Unwanted Coal Ash

By John Murawski, The News & Observer (Raleigh, N.C.)

RALEIGH, N.C. — Years before the accidental coal ash spill into the Dan River in February, the waste was being dumped into creeks, wetlands and vacant fields across North Carolina.

Scores of private ash sites were originally proposed for legitimate construction use — such as building an airstrip or a parking lot — but the construction didn’t always take place.

More than 70 ash sites statewide hold about 11 million cubic yards of ash, much of it used in building roads, parking lots and other projects.

But nearly a quarter of the waste sits at six of the largest sites, where about 2.6 million cubic yards of coal ash lies in unlined pits, largely unmonitored for potential groundwater contamination.

Over the years the sites have been cited by the North Carolina Department of Environment and Natural Resources with violations for creating dust clouds, for being placed too close to water sources, and for ash erosion into water drainage areas. At one site the ash was dumped into a wetland area.

“When they said they had an end use, they didn’t have an end use — it was a form of disposal,” said Ellen Lorschneider, planning and programs branch head of the solid waste section within DENR. “There was abuse of our regulations — the coal was a disposal site they called structural fill.”

As public officials grapple with a solution to safe coal ash storage, the focus has largely been on the future of the 33 ash pits and ponds at power plant facilities that are contaminating nearby groundwater. These sites are operated by Charlotte-based Duke Energy and its Raleigh-based subsidiary, Duke Energy Progress, formerly called Progress Energy.

But the 70-plus ash sites throughout the state, many on private property in eastern North Carolina, are also drawing attention after years of neglect. Even where the ash was used as “structural fill” — to level roadways, for road beds and to stabilize soil under buildings — the concern doesn’t go away.

Gov. Pat McCrory’s proposed Coal Ash Action Plan, now under review by lawmakers in Raleigh, includes a temporary moratorium on the use of coal as structural fill in amounts of 5,000 cubic yards or more.

McCrory’s coal ash proposal would also start regulating structural fill as landfilled solid waste. It would require state permits, leak-proof liners and groundwater monitoring for structural fill sites, none of which has been required in past years.

“Under current law, passed by previous administrations, there are more stringent requirements for the disposal of household garbage than there are for certain coal ash applications,” said DENR spokesman Drew Elliot.

The state’s six biggest ash dumps, including four about 90 miles northeast of Raleigh in Halifax County, contain anywhere from 10 times to 100 times more coal ash than is typically needed for construction. The six sites range in size from 127,176 cubic yards to 905,238 cubic yards, according to state records.

The structural fill sites documented by DENR were mostly built after North Carolina adopted regulations in 1994 to promote the “beneficial reuse” of coal ash as structural fill. The use of ash for construction fill is widely accepted and encouraged by the U.S. Environmental Protection Agency.

The state’s structural fills contain coal ash disgorged by Duke and Progress and reused at their own power plants and other construction sites, as well as waste from smaller industrial operations. Duke once sold the ash for 50 cents to $1 a ton, but ash producers also paid to have it hauled away.

It’s not clear how many total structural fill sites exist in the Triangle area or statewide or where they are located, however, because sites built before the 1990s are not documented.

What is clear is that the state’s historic dependence on coal as an energy source to generate electricity produced more ash than the construction industry could use. Duke and Progress for decades have stored excess ash on site in pits and lagoons.

Some enterprising locals saw an opportunity and agreed to haul ash away for a fee, hoping to find a buyer or to use it for development projects.

“It was just a great big huge hole there, and we filled it in,” said Blackwell Bennett Pierce, owner of Utilities Transport, a trucking company that hauled coal ash between 2004 and 2007 to the Arthur’s Creek disposal site in Northampton County, about 90 miles northeast of Raleigh. The site holds 480,612 cubic yards of ash, according to a county deed in the DENR records.

Plumbline Engineering, which designed the ash retention site, paid an administrative penalty of $9,154.88 in 2011 for a number of violations at Arthur’s Creek that included erosion problems and coal ash washing into a nearby creek. DENR officials say the problems have been resolved.

“We thought maybe we might use it for something one day,” Pierce said. “But there’s no use for it. Nobody wanted it.”

Research biologist Dennis Lemly, who works for Wake Forest University and the U.S. Forest Service, has studied the effects of coal ash contaminants and said dry ash storage sites are long-festering problems and overdue for stricter oversight.

“The two operative words are unregulated and mostly unmonitored,” Lemly said. “It raises the larger underlying issue with the state regulatory system.”

Photo by Mr T in DC/Flickr

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