Feds, State Investigate Duke Energy for Illegal Pumping of Coal Ash

A small handful of environmentalists that were expelled by police from boating on a local waterway in North Carolina are being hailed as national heroes this week. After members from Waterkeeper Alliance, who were trying to take water samples from a stream, were told by police on March 10 to leave an area bordering the Duke Energy Cape Fear River facility, they resorted to aerial surveillance of the area.

The following day they released photographs showing that Duke Energy has been pumping coal ash into a local tributary of the Cape Fear River, a local source for drinking water.
According to subsequent investigations by the North Carolina Department of Environment and Natural Resources, the company has been pumping the coal ash for months from two facilities without authorization or the proper safety measures in place to filter the contaminated water. DENR estimates that between September 2013 and early March, 61 million gallons were dispersed into the tributary.

Duke Energy states that it let DENR know last year that it would be conducting “routine maintenance,” the Raleigh News & Observer reports. DENR, however, says the volume of contaminated water that Duke Energy has pumped is not consistent with routine maintenance and denies giving the company authorization to pump the wastewater as it did.

The series of incidents are the latest problems for Duke Energy, which is now under both state and federal investigations for environmental pollution. In February, a coal ash containment pond at the North Carolina-Virginia border failed, spewing sludge that polluted some 70 miles of the Dan River. Virginia Gov. Terry McAuliffe has said that he expects Duke Energy to compensate the state for the cleanup of the river, which polluted containment ponds at the Danville, Va. treatment plant.

Last Thursday, the Southern Environmental Law Center filed motions on behalf of four environmental groups requesting that they be permitted to participate in the enforcement of the cleanup from the Dan River spill. The four organizations, the Waterkeeper Alliance,  Dan River Basin Association, Roanoke River Basin Association and Southern Alliance for Clean Energy, say they want to ensure that the cleanup is done satisfactorily.

“The Dan River site is an ongoing disaster, with illegal discharges pouring out of the coal ash lagoons everywhere you look,” said Waterkeeper Alliance Staff Attorney Pete Harrison.

Environmental groups have also accused the DENR having “uncomfortable ties” with Duke Energy, which they feel has impeded oversight and enforcement of regulations at the coal ash sites. North Carolina Gov. Pat McCrory is a 28-year veteran of Duke Energy and has been accused of weakening state environmental laws that provide oversight of businesses like Duke Energy. The DENR is also under federal investigation concerning documents that suggest that the DENR may have consulted Duke Energy by email  before excluding environmental lobbyists from meetings related to whether Duke Energy’s ponds were polluting groundwater. More recently, the state has been accused of preempting attempts by environmentalists to sue the company under the federal Clean Water Act.

Duke Energy has so far received eight violations relating to wastewater management issues. The most recent was issued last week after state regulators had paid a visit to the Cape Fear River facility and said they found the company illegally discharging waste into the stream. Two were issued Feb. 28 for the Dan River spill, and five more were issued on March 3 for operating five plants without stormwater permits.

According to the Associated Press, the DENR has acknowledged that the ponds have been lacking the permits since 2010. AP reported on March 20 that no action was taken by the state until three days after a Freedom of Information request had been filed by AP to examine stormwater permits at the company’s facilities.

The state’s new crackdown, and the increased attention by federal regulators, is good news for many environmentalists who have been lobbying the state to get Duke Energy to transfer its holding ponds to lined facilities that are less likely to crack or fail. But it comes with bittersweet results knowing that environmental cleanup of these two rivers will likely take years to address.

"Obviously the local community and conservationists can't count on DENR to do the right thing,” said SELC Senior Attorney Frank Holleman. “And so we want to be there to be sure that DENR does do the right thing—that their feet and Duke's feet are held to the fire.”

Image credit: USFWSSoutheast