Dan River Ash Spill May Spur Tougher State Oversight, EPA Rules

The aftermath of two spills from a coal ash storage pond at Duke Energy’s Dan River Steam Station in North Carolina this month, which saw about 35,000 tons of ash flood into the Dan River, may lead to a crackdown by North Carolina state regulators and will likely affect the Environmental Protection Agency’s (EPA’s) decision-making on its long-delayed regulations on coal combustion residuals, observers say.

The first leak occurred on Feb. 2 when a storm drain under the pond broke, allowing ash and water to flow into the river. That leak took nearly a week to permanently plug. A second, much smaller leak was discovered about two weeks later. That leak has also been stopped.

The North Carolina Department of Energy and Natural Resources (DENR) has been under fire for weeks for a relationship some say is far too cozy with the state’s largest utility. On Feb. 19, the U.S. Attorney’s office for the Eastern District of North Carolina served more than 20 subpoenas on the DENR compelling the production of any records of payments or “items of value” received by agency employees from Duke. Several agency representatives have also been called to testify before a grand jury on Mar. 18. Subpoenas have also been served on Duke, though details of those are not available. U.S. attorney Thomas G. Walker said in a publicly released letter to DENR that it was seeking evidence of suspected felonies.

The DENR sued Duke last year over leaks from 12 of its coal ash storage ponds. Critics said at the time that the suit was an attempt to block lawsuits from environmental groups over the same issue. The Clean Water Act allows such citizen enforcement, but only if state agencies are not pursuing their own action. The DENR later reached an agreement with Duke that required a $99,000 fine but allowed Duke to continue maintaining the storage ponds.

At a tense news conference the day the subpoenas were served, DENR secretary John Skvarla angrily denied suggestions of a “smoky backroom deal” with Duke over the settlement agreement. He said such accusations were “absolutely not true.”

That settlement has been on hold since the spill, though the DENR on Feb. 20 notified the judge in charge of the case that it may move forward with it soon. It has until Mar. 21 to make a decision.

Difficult Cleanup Ahead

On Feb. 25, the DENR announced that it would look into revising Duke’s permit at Dan River to require removal of the ash pond and relocation of the ash to a lined landfill. Environmental groups have been seeking such a move for years, but Duke and DENR had thus far resisted such calls.

North Carolina Governor Pat McCrory, who was a long-time Duke executive before his election, has also been under fire for being too close to the utility. On Feb. 26, he said at a press conference that he would press Duke to remove all coal ash ponds that are near rivers and other water sources. He also sent Duke a letter giving them until Mar. 15 to come up with a cleanup plan for Dan River.

How the Dan River will be cleaned up is still not certain. Duke says about 27 million gallons of contaminated water entered the river, though aerial surveys by researchers at Wake Forest University estimated the spill at 31 million to 35 million gallons based on differences in before and after photos. Federal officials have identified at least one large accumulation of ash, a 75-foot-long, 15-foot-wide bar just downriver from the spill site.

State officials say the water is safe to drink after treatment, but have advised local residents not to eat fish caught from the river and to avoid contact with untreated water.

EPA Pressure

The accident has refocused attention on the EPA’s rulemaking process for coal combustion residuals under the Resource Conservation and Recovery Act, which began in 2008 after a huge spill at the Tennessee Valley Authority’s Kingston coal-fired power plant in Tennessee. After publishing a proposed rule in 2010, the agency has missed repeated deadlines to finalize the regulation. It is under court order to issue a revision by Dec. 19, 2014, but has already missed another order from the same court to submit a schedule for final agency action.

The accident is sure to increase pressure on the agency to issue stricter rules, possibly regulating coal ash as hazardous waste. But Duke officials said in a Feb. 18 conference call to discuss fourth quarter earnings that it expects the EPA will continue designating coal ash as nonhazardous. Either course is certain to face litigation.

—Thomas W. Overton is a POWER associate editor (@thomas_overton, @POWERmagazine)