Say the words “coal ash” to most North Carolina residents and until recently, you probably would get a blank stare.
“Cold what?” they might have asked.
But that powdery, gray waste rocketed to statewide prominence seemingly from nowhere when it burst through a ruptured pipe at the retired Dan River Steam Station in Eden two months ago to emerge as the environmental equivalent of Public Enemy No. 1.
Despite appearances, the controversy took years to reach that breaking point, according to those who have lived with it for the long haul.
Biologists, engineers, environmentalists, politicians, regulators and lawyers focused on the topic in growing numbers as the Dan River time bomb ticked down.
“There’s been a lot going on for quite a while, but largely under the radar,” said D.J. Gerken of the Southern Environmental Law Center, which represents conservation groups in lawsuits against Duke Energy’s ash-handling practices. “This is a multi dimensional matter that has been building over time.”
In fact, the Feb. 2 spill fit into an ongoing stream of events, from scientific research to lawsuits, bringing new attention to all of them at the same time it opened fresh avenues of controversy.
The political fallout is months or years away, but it could be significant. Much of that impact depends on the outcome of a federal grand jury investigation, begun shortly after the calamity in Eden to examine both the spill and the larger issue of how effectively state government enforced environmental laws at Duke Energy’s 14 ash disposal ponds across North Carolina.
“If favors were done (for Duke Energy) that should not have been done, that’s toxic,” said Carter Wrenn, a Republican political consultant and longtime aide to the late U.S. Sen. Jesse Helms.
A recent poll by the Sierra Club found that the majority of North Carolina residents put most blame for the Dan River spill on Duke Energy’s shoulders and believe stronger regulations would have prevented it.
At this early stage, nobody knows the shelf life of such sentiments, but they triggered at least one “Coal Ash Wednesday” campaign on Facebook to hold Duke Energy accountable, and they inspired Greensboro artist Mary Beth Boone to produce an old-fashioned broadside poster lambasting the utility.
“It’s not a lot, but I feel every little bit helps,” said Boone, who is selling the broadsides for $20 each — proceeds will be donated to the Dan River Basin Association conservation group.
The poster shows a turtle and fish threatened by the recent spill above the inscription: “Duke Energy, destroying nature in its quest for POWER.”
For its part, Duke Energy is beginning the next phase of a massive Dan River cleanup, taking over a riverside municipal park last week in Danville, Va., for a bottom-cleaning effort aimed at dredging up as much of the escaped coal ash as possible.
Duke Energy, the nation’s largest utility, plans to “permanently close the Dan River ash ponds and move the ash away from the river for use as lined structural fill or to a lined landfill” at its own expense, company officials said recently.
The utility has similar plans at three of its other 13 plants, hoping to pass on the cost of those closures to its customers in their power bills. The company said it places “a high priority on closing ash basins across the fleet once they are no longer needed.”
But the Charlotte-based corporation has resisted efforts by environmentalists to forge a comprehensive agreement across its realm of active and retired coal-fired plants.
The first alarms about coal ash came during the 1970s from biological researchers studying its lethal effects on fish populations. Intriguingly, a Duke plant just 35 miles from the Dan River spill was one of the birthplaces of this science.
“North Carolina presents an extreme irony with respect to coal ash disposal and the associated wastewater impact on fish,” Wake Forest University biologist Dennis Lemly wrote in a recent scientific paper.
Lemly helped pioneer the science of coal ash lethality nearly 40 years ago at the Belews Creek Steam Station in Stokes County. Indiscriminate discharges of ash-contaminated wastewater from the coal-fired Belews plant killed 19 of 20 fish species in the nearby lake, Lemly and other researchers found back then.
Ash waste comes from burning pulverized coal to produce electricity, not so different in some ways from what’s left in the hearth after a wood fire.
Duke Energy and other utilities generate millions of tons of coal ash and get rid of it in a variety of ways, from recycling it in wallboard and other construction materials to burying it dry in landfills or submerging it in deep pools of water.
The power industry estimates that 29 million tons goes into such ponds annually in the United States, about 21 percent of all coal ash the utilities create each year.
No laws regulate the ash as a hazardous substance, but utilities are supposed to prevent the ash ponds from harming the environment by releasing the contaminant only in precise, heavily-diluted amounts.
Environmentalists picked up relatively slowly on the coal ash threat.
Many knew vaguely that it was not a good thing for Mother Nature, but they focused more on such big-picture issues tied to coal-fired electricity as air pollution and climate change, said Elaine Chioso of the Haw River Assembly conservation group.
That changed abruptly in December 2008, when a dam gave way at the ash basin near a Tennessee Valley Authority plant in Kingston, Tenn., releasing 5.4 million cubic yards of coal ash that cascaded into the Emory and Clinch rivers and smothered about 300 acres of land.
“That was the big wake-up call for everyone,” Chioso said.
Environmentalists quickly tapped into the work of Lemly and other scientists. They also began to check out some of the earthen ash basins near North Carolina streams and lakes, and they were alarmed by what they saw, said Kemp Burdette, the Cape Fear riverkeeper.
“Imagine you’re on a small stream in a boat, and there beside you is a huge berm, rising 40 feet above you,” Burdette said. “And that berm is filled with coal ash that has been pumped into it for 40 years.”
Duke denies seepage
In court papers filed last week, Duke Energy denied that any illegal leaks or groundwater contamination from coal ash ponds at any of its plants occurred in recent years, leaving a question that one day a judge and jury might have to untangle.
But in the aftermath of the Kingston catastrophe, environmental groups began documenting alleged “seeps” at some of the ash ponds, places where contaminated water appeared to be pouring through holes or weak spots in the earthworks, Burdette said.
Also following the Tennessee disaster, the U.S. Environmental Protection Agency dispatched engineering consultants to check out other ash ponds around the country that had a potential for doing great damage.
Dan River was “one of the first” EPA looked at, said Lisa Evans of EarthJustice, a national environmental law group.
Evans said it’s inexcusable that EPA’s consultant documented the unusual situation at Dan River where two drainage pipes flowed directly under the coal-fired plant’s ash basin, yet nothing was done.
“That should have been a red flag for further investigation” by state or federal regulators, she said.
The larger of the two pipes collapsed Feb. 2 to send a torrent of coal ash into the river, an amount far less than the Kingston disaster but still enough to tarnish parts of the Dan River along a 70-mile stretch in North Carolina and across the Virginia state line. Massachusetts resident Evans knows all about the Dan River plant because her group partnered with the Sierra Club four years ago to produce “In Harm’s Way,” a report that documented 39 plants across the nation with ash ponds that threatened the environment.
The report identified only one plant in North Carolina teetering on the brink: Dan River.
She and her colleagues didn’t have a crystal ball, Evans said, but simply looked across the nation for storage ponds that were aging, rated in the high-hazard category for the potential harm they could inflict and with established records of pollution leakage.
Fly ash compromise
State Rep. Pricey Harrison of Greensboro reacted to the TVA crisis in Kingston by spotting trouble ahead for North Carolina if the state didn’t step up its ash pond monitoring.
She came up with a plan in 2009 to wrest supervision of North Carolina’s ash ponds from the N.C. Utilities Commission, which she said “just wasn’t equipped” to regulate them aggressively enough.
Known for her acumen in environmental matters, Harrison, a Democrat, put together a bill that would move ash pond supervision from the overburdened commission to the N.C. Department of Environment and Natural Resources, which had more dam-safety knowledge and resources.
The proposal instructed the DENR to prepare a plan for closing all the ash ponds and for disposing of their contaminated contents in a safe way.
But industry executives balked, and Harrison said it was like she was speaking a foreign language to fellow legislators: “I couldn’t get any traction.”
That changed later in the session when Duke Energy and Progress Energy — separate entities then that merged in 2012 — needed relief from a state law against air pollution. The Clean Smokestacks Act required them to equip their older coal plants with costly scrubbers to remove so-called fly ash.
The law required the scrubbers even though the utilities planned to close the plants soon in favor of new units that ran on cleaner-burning natural gas.
Harrison said she struck a compromise: She could support a temporary scrubber exemption for such plants, if the utilities would agree to put their ash ponds under the DENR’s scrutiny.
But the DENR took a cautious approach in dealing with the politically powerful utilities, even with the General Assembly controlled at that time by the Democratic Party which is considered friendlier to environmental regulation.
Conservation groups tried working with the DENR but couldn’t get the DENR to move against the utility executives to stop leakage the conservation groups documented at various ash ponds, said Gerken of the Southern Environmental Law Center that represents the groups.
‘Enough data to know’
They eventually filed suit in state court challenging a 2012 decision by the N.C. Environmental Management Commission, a supervisory board that allowed Duke Energy’s ash ponds to keep leaking contaminants into the groundwater while the DENR gathered data to help devise a plan for solving such problems once and for all.
“By 2012, we began to see enough data to know all the plants were polluting, pretty much indiscriminately,” Gerken said of Duke Energy’s plants with coal-ash ponds.
When state regulators said they needed even more data before acting, Gerken and his colleagues at the Southern Environmental Law Center decided it was time to head to the U.S. District Court, where they could sue Duke Energy by showing that state government was shirking its duty to enforce the federal Clean Water Act in the face of persistent leakage from the ponds.
But the DENR thwarted that move by filing its own version of the pollution case against Duke Energy in state court, essentially checkmating Burdette’s and the other conservation groups that the law center represented.
Then state officials proposed to settle one of the Superior Court cases with Duke Energy on such lenient terms that critics called it a “sweetheart deal” and proof that regulators were too close to the utility.
U.S. Attorney Thomas G. Walker in Raleigh apparently will explore that question in the federal investigation his office began days after the spill into the Dan River.
In recent weeks, the environmental groups won a victory in their initial lawsuit against the Environmental Management Commission when a state judge ruled that the commission got it wrong in its decision two years ago.
The state panel could not permit Duke Energy’s ash ponds to continue polluting just because the utility was working with DENR toward a larger solution, Superior Court Judge Paul C. Ridgeway ruled.
Then as recently as Friday, Ridgeway ruled that Duke Energy couldn’t have a blanket order to keep coal ash records away from the environmental groups.
DENR Secretary John Skvarla has disputed allegations that his agency coddled Duke Energy at any time, saying DENR didn’t seek harsh penalties in its proposed court settlement because officials thought the more important goal was to compel the utility to resolve its ash-pond problems in a secure manner.
But last month the DENR formally withdrew its offer to settle with Duke Energy, not long after state regulators determined that the utility broke the rules at another of its retired coal-fired plants, this one near Moncure in Chatham County. The DENR alleged that Duke Energy violated its state permit by pumping more than 61 million gallons of ash-tainted wastewater into the Cape Fear River, upstream from several communities that draw drinking water from the river.
“We will continue to hold the utility accountable for the cleanup of its coal ash impoundments through the lawsuits, the reopening of the permits and our on-going investigation,” Skvarla said in retracting the proposed consent order.
But Skvarla and others in a state hierarchy now led by Republicans made statements well before the Dan River incident that could undercut the credibility of such blunt talk.
They suggested a more business-friendly approach to environmental oversight, something environmentalists allege Duke Energy had received aplenty under prior Democratic administrations.
Democrats see a train wreck ahead for Republican Gov. Pat McCrory and possibly other GOP officeholders, if coal ash remains a fiery issue.
As a Duke Energy executive for almost three decades before retiring in 2008, McCrory especially could pay a high price even if “he never even saw an ash pond” in his years with the utility, Democratic pundit and consultant Gary Pearce said.
“I think this is something that will dominate the rest of McCrory’s administration and likely will make him a one-term governor,” said Pearce, one of former Gov. Jim Hunt’s closest advisers.
Former Helms aide Wrenn doesn’t see it that way necessarily, saying Democrats must shoulder their share of any blame for a crisis that has been building over the course of decades.
If the newly impaneled grand jury finds only negligence behind the Dan spill and whatever else prosecutors might unearth, “maybe you end up with more environmental regulations, but politically it’s not a big deal,” said Wrenn, who co-writes a popular political blog with his partisan counterpart, Pearce.
If the grand jury finds something more sinister, there will be plenty of blame for all to bear, Wrenn said, but it’s inescapable the current administration will take a significant hit.
“McCrory just has the misfortune that he’s the guy in office when the train wreck happened,” Wrenn said. “People are going to say, ‘Well, why didn’t you check the tracks?’ ”