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A Dirty Business
North Carolina's coal ash spill shows what lax regulation by 'business-friendly' state agencies really looks like.

Duke Energy, the largest electric utility in the country, burns a lot of coal. What’s left behind is ash—nearly three and a half million tons of it at Duke power plants in 2013 alone. Where does it all go? After recycling, more than half winds up in landfills, quarries, and massive "ponds" that hold wet slurry, which is really just a gray sludge of water and ash. Here in my home state of North Carolina, Duke maintains 17 coal ash ponds, and ten days ago, a pipe running under one of them ruptured.

Though estimates of the spill's size continue to fluctuate, it dumped enough ashy sludge into the adjacent Dan River to fill several dozen Olympic-size swimming pools.

Duke plugged the ruptured metal pipe on Saturday, six days after the break, and this week it announced plans to dredge the slurry off the bottom of the river. The city of Danville, Virginia, is only 20 miles downstream and draws its drinking water from the Dan, but no cases of illness have been reported there (or anywhere else). Despite early test results showing elevated levels of arsenic downstream, authorities say the contaminants have diminished, and the water is safe to drink.

Still, some nearby residents are nervous, and it’s tough to blame them—they only have to look at what happened on the Elk River in nearby West Virginia last month to be concerned about authorities giving premature or misleading assurances. To underscore that, North Carolina health officials warned residents only today—a week and a half after the spill—that no one should swim in the Dan River or eat fish from it. “When something like this happens, how can you even know if what you’re drinking is safe?” asked Evan Parrish, a bearded 30-year-old I met at a used record store in downtown Danville, two blocks from the river.

Coal ash contains a devil’s brew of harmful—even lethal—metals and metalloids, including lead, mercury, arsenic, cadmium and selenium. Yet it’s virtually unregulated, and spills are growing more common across the country. On Tuesday, nine days after the North Carolina spill, a valve malfunction at a plant in West Virginia poured as much as 108,000 gallons of slurry into a local stream. An alarm system designed to alert plant operators of a malfunction failed as well, and officials are trying to determine the effects.

Not surprisingly, these coal ash spills tend to occur at the the oldest and dirtiest coal plants in the country, such as Duke’s Dan River Steam Station in Eden, North Carolina, the site of last week’s rupture. (It’s also no surprise that both West Virginia and North Carolina tend to be friendly to energy producers and fairly hands off about regulations.) The Dan River plant began production in 1949 and was grandfathered into federal air and water quality rules in the 1970s. That means no federal rules govern the disposal and storage of coal ash, leaving that task to the states, which don’t do much.

North Carolina, for example, requires state inspections every other year, and ash storage sites are supposed to comply with rules that govern water quality and wastewater discharges. But the state has little authority to enforce the standards; if inspectors discover a problem, the state works with the company to correct it. Fines are rare. Perhaps that wouldn’t be such a concern if so many of Duke’s ash ponds weren’t unlined and squatting right next to easily polluted waterways.

Even if the Eden plant and others like it hadn’t been grandfathered under federal law, the Environmental Protection Agency has no standards for coal ash and has been slow to adopt them. The Eden incident is the third-worst coal ash spill by volume in U.S. history. By far the worst was a spill in late 2008 in Kingston, Tennessee; it covered 300 acres and poured 1.1 billion gallons of slurry into tributaries of the Tennessee River.

That spill prompted the EPA to finally propose two sets of regulations: one that would classify coal ash as a “solid waste” subject to more frequent inspections and the installation of liners in ponds; and another, stricter set that would render coal ash a “hazardous waste,” regulated directly by the EPA, and force energy companies to close its ponds and dispose of the ash in dry landfills. The EPA has pledged to adopt one of the sets by year’s end.

Environmental advocates favor the stricter option. “But at this point, any federal guidelines are better than nothing,” says Amy Adams, a former state regulator who now works for the North Carolina environmental group Appalachian Voices. “We’ll take what we can get.”

* * *

So far, that hasn’t been much. Duke and its fellow utilities have fought hard to stop federal rules on coal ash, and in North Carolina, they have benefitted from a cozy relationship with government regulators, which has only gotten cozier under the state’s new Republican governor. Pat McCrory is a former 28-year Duke employee (he was an economic development executive) and 14-year mayor of Charlotte, where the company is based.

Duke waited 24 hours after a security guard noticed low water levels in the ash pond before it notified the public about the Eden spill—which was perfectly fine, according to state law. After initially saying the 48-inch pipe that ruptured was made of steel-reinforced concrete, Duke was surprised to discover that it was actually made of corrugated metal and installed a half-century ago. And underscoring just how clueless Duke has been, today it cut its estimate of how much actually spilled from the pipe by about half.

McCrory was also slow to react, taking five days to visit Eden. “This is a serious spill,” he said after seeing the damage first-hand, “and we need to get it under control as quickly as possible … We need to make sure this never happens again in North Carolina.”

Amy Adams of Appalachian Voices

But since his election in November 2012, McCrory’s administration has actually done the opposite, resisting efforts to clean up coal ash. The Associated Press reported Sunday that the state Department of Environment and Natural Resources has blocked efforts by advocates to force Duke to address leaky coal ash ponds throughout the state—not once, but three times. “After negotiating with Duke,” the AP reported, “the state proposed settlements where the nation’s largest electricity provider pays modest fines but is under no requirement to actually clean up its coal ash ponds.”

DENR scrapped a proposed settlement with Duke in which the company would have paid $99,111 in fines for ash that leaked from ponds near Asheville and Charlotte last year, even though it would have been a drop in the bucket for the energy giant, which reported a profit of $1 billion for the third quarter of 2013.

(UPDATE: Shortly after this story was published, news broke that federal authorities have launched a criminal investigation, issuing subpoenas to both DENR and Duke and ordering the agency's chief lawyer to appear before a grand jury.)

Since McCrory took office, conservationists have charged that his DENR has devolved from an authentic environmental enforcement agency to a rubber-stamp shop for Big Energy. To head the agency, McCrory tapped John Skvarla, a former corporate lawyer who was serving as an environmental mitigation and restoration banking firm in Raleigh when he took the cabinet post.

McCrory’s administration and Skrvarla’s leadership brought a “historic and hostile takeover of DENR by politically and ideologically motivated lawmakers in the General Assembly,” Adams wrote in an op-ed piece for the Raleigh News & Observer in December, after she had left the agency for Appalachian Voices. Legislators stretched meager resources thin, she said, and Skvarla oversaw an agency he made plain would operate at the service of business and industry.

In his response to the editorial, Skvarla said the administration has “turn[ed] DENR from North Carolina’s No. 1 obstacle of resistance into a customer-friendly juggernaut” that treats energy companies as “partners” rather than regulatory targets. Which is exactly the problem, Adams retorts. “It sort of takes away the importance of never violating the law, which protects citizens’ right to clean air and water,” she told me. “I mean, there’s nothing less than clean air and water for the citizens of North Carolina on the line here.”

* * *

Now that the Eden spill has dumped as much as 39,000 tons of coal ash and 27 million gallons of ash-contaminated water into the Dan, North Carolina’s environmental agency is starting to take a bit of a different approach, at least publicly. Earlier this week it announced a “coal ash task force” to review coal ash safety rules.

It’s about time. The EPA lists 45 coal ash ponds nationwide as “high hazard,” indicating that “significant damage or loss of life may occur if there is a structural failure of the unit”—if the pond’s walls collapse, in other words. The large ash basin in Eden and a smaller pond right next to it are two of the 45. Two others—unlined ponds that each hold four times as much coal ash as the Dan River Steam Plant’s—sit next to a lake that supplies drinking water to Charlotte, a metropolitan area of 2.3 million people. Duke Energy owns those ponds, plus six others.

Although spills get all the attention, for obvious reasons, it might be long-term exposure to the contaminants from coal ash that poses the greatest risk to people. A 2010 EPA study showed an increased risk of cancer and neurological damage when people are exposed to coal ash, either though the air, water, or contaminated fish. Environmental advocates say more research is needed to determine the precise risk levels and effects of exposure over many years. “There’s been a delay in identifying the true health risks of coal ash,” Adams says. “We just didn’t know.”

Several days ago, I got a first-hand look at the Eden spill by climbing to the top of a ridge overlooking the power plant where it occurred. The basin where the coal ash is stored stretches across 27 acres of flat earth; from the air, it resembles an enormous black arrowhead. A thin buffer of earth and a line of trees separate the storage pond from the Dan River, which flows northeast past its tip.

I climbed the ridge with the EPA’s on-scene spill coordinator, Kevin Eichinger, and a Duke Energy spokesman, Jeff Brooks. A temporary system of pumps and bulkheads had slowed the spill until crews could pour a grout plug into the broken pipe to stop the flow. The plug was hardening as we spoke.

“The safety of our ash ponds is of paramount importance to us,” Brooks told me. “We’re very committed to protecting the communities we serve. We’re in this to do the right thing here.” The right thing would be to stop fighting state and federal efforts to regulate coal ash—before another spill occurs.

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image of Greg Lacour
Greg Lacour spent nearly 10 years as a reporter for the Charlotte Observer and is now a political columnist for Charlotte Magazine, where he writes "Poking the Hornet's Nest." MORE STORIES ➔