Felony Suspected at North Carolina Coal Ash Spill

The Feb. 2 spill of coal ash slurry from a Duke Energy containment pond has taken a new turn with a federal grand jury issuing subpoenas for records from both Duke Energy and the state environmental regulator.

3 minute read

February 17, 2014, 7:00 AM PST

By Irvin Dawid

"Duke and the N.C. Department of Environment and Natural Resources (DENR) confirmed Thursday that they were subpoenaed to produce records before a federal grand jury that will meet in Raleigh," writes Bruce Henderson about the coal ash (waste remaining after coal is burned to produce energy) spill. "The Environmental Protection Agency, which enforces the law, is in overall charge of the Dan River spill damage and assessment. Like DENR, the EPA may levy civil fines," he adds.

A criminal prosecution under the Clean Water Act could expose its target, including individuals, to fines triple the size of civil penalties, environmental law experts say, and potentially send somebody to prison.

“An official criminal investigation of a suspected felony is being conducted by an agency of the United States and a federal grand jury,” said a cover letter accompanying the subpoena, which was dated (Feb. 10) and signed by a criminal prosecutor", reports Stockhouse News.

While it's too early to report precisely what the subpoenas are targeting, or confirm that U.S. Attorney Thomas Walker’s office is undertaking an investigation, Henderson suggests that it might be previous illegal discharges. "Duke’s critics have blamed both Duke and DENR under Gov. Pat McCrory, a former Duke executive, for not aggressively addressing ash problems," notes Henderson.

Lawsuits DENR filed last year against Duke, under pressure from environmental groups, say the company broke the law with illegal discharges from its ash ponds at all 14 coal-fired power plants in North Carolina.

That’s proof that both the state and Duke knew of violations at the Dan River plant, said Frank Holleman, an attorney with the Southern Environmental Law Center. The center represents advocacy groups, including the Charlotte-based Catawba Riverkeeper Foundation, that have challenged Duke over ash in court. [See SELC's Feb. 11 press release.]

The caption under a photo of the spill states, "Over the last year, environmental groups have tried three times to use the federal Clean Water Act to force Duke Energy to clear out leaky coal ash dumps. Each time, the N.C. Department of Environment and Natural Resources has effectively halted the lawsuit by intervening at the last minute to assert its own authority to take enforcement action."

“If you know you’re violating the law and continue to do it, it’s hard to say you’re not also negligent,” Holleman said. “I’ve been surprised that Duke Energy could get away with what it’s done for so long and that DENR allowed it to happen.

Preventable environmental calamities, be it the Jan. 9 chemical spill in W.Va. or this one, tend to cross party lines. Everyone drinks the water and enjoys the region's outstanding nature.  

It didn't help Duke Energy that the spill "took place in Eden, [pop.15,908 at the 2000 census], the hometown of Senate leader Phil Berger (Republican), who wants a legislative inquiry. The ash spill is on Monday’s agenda of the legislative Environmental Review Commission," adds Henderson.

WX11 news reports In the accompanying video that DENR revealed that the level of toxicity of substances in the coal ash released in the spill was more severe than initially estimated although the actual amount of the discharge was reduced from 82,000 tons to 30,000 to 39,000 tons, reports Valerie Bauerlein of the Wall Street Journal.

While there has been no warning from government that the drinking water has been imperiled, the Southern Environmental Law Center "released an interactive map that details the ongoing risk to drinking water intakes downstream from the Dan River spill as well as a map that shows the risk to drinking water intakes downstream from coal ash pits across the region."

Contributing to more uncertainty for the region's residents, Henderson writes on Friday that a "Second pipe at Duke ash-spill site could break."

Correspondent's note: "Slurry" is used to describe the mixture with water before and after coal burning. Coal slurry refers to the mixture before burning and coal ash slurry refers to the after-burning product mixed with water. More on the coal ash problem from Earth Justice.

Thursday, February 13, 2014 in The Charlotte Observer

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