Raleigh, N.C. — For more than three years, Duke Energy used a provision in a 2009 state law tightening coal ash pond regulations to refuse to provide environmental regulators and emergency responders with information about potential damage from failed dams.
Officials from the Department of Environment and Natural Resources say Duke has failed to provide maps that detail how breaches in 29 of the state's 46 high-hazard coal ash dams would affect surrounding areas. Known as inundation maps, these documents form a crucial part of emergency action plans in the event a dam fails.
North Carolina is one of 10 states in the country that does not require dam owners to file these emergency action plans, according to DENR spokeswoman Bridget Munger. But since DENR officials took over regulation of all of the state's dams in 2010, it has required EAPs every time a dam operator applies for any kind of new permit.
"That gives us some leverage to work with," Munger said.
But documents show the same law granting the agency that regulatory authority created a loophole Duke has used to get around the inundation map requirement.
One of bill's authors says that's not how it was supposed to work.
"That's a troubling matter, and I guess we could fix that in the coal ash legislation we're going to be filing in the next few weeks," said state Rep. Pricey Harrison, D-Guilford.
Law shifted regulatory authority
Search NC's coal ash records Prior to 2010, Munger said, the safety of the dams keeping coal ash in retention ponds was essentially self-regulated. Duke inspected these facilities every five years, then reported its findings to the state Utilities Commission.
Senate Bill 1004 changed that, transferring oversight of coal ash ponds to regulators at DENR. When she signed it into law in July 2009, Gov. Bev Perdue hailed the act as a way to tighten restrictions on the industrial byproduct, which contains arsenic, mercury, lead, boron and other heavy metals.
“Because of potential risk posed by the location of North Carolina’s coal ash ponds, we must provide greater oversight and more frequent inspections,” Perdue said in a release at the time. “This legislation will keep our citizens safer and our dams more secure.”
For a while, Munger said, the measure mostly worked as intended.
"When that was passed and the program was new here, there was a process over the first year of starting to work with these companies," she said.
Progress Energy, which owned about 20 of the high-hazard dams, supplied many of the required inundation maps. Duke, she said, was less amenable.
But around 2011, Munger said the companies began using one section of the law to claim an exemption. Duke acquired Progress in 2012.
"Staff was indeed frustrated because that last part kind of tied the hands of the regulators," she said.
Around the same time, WRAL News reported Tuesday, DENR officials began investigating ways to exempt these documents from the state's public records law in response to a Duke request to keep them secret.
While the state has some form of EAP on file for 38 of the 46 high-hazard dams, state data show inundation maps are old or missing entirely from two-thirds of the structures.
"An EAP without a valid and up-to-date inundation map is pretty much no good," Munger said.
After the spill, a change of heart
Duke, DENR kept potential impacts of coal ash dam breaches secret Although it was a busted drain pipe and not a breached dam that caused the coal ash spill in early February that released 40,000 tons of coal ash into the Dan River, Duke is shifting its stance on the release of these impact maps.
In a March 20 response to DENR's information request, Vice President John Elnitsky said the company would provide updated emergency action plans and inundation maps before July 31.
"It will take several months to update the plans because we intend to incorporate our learnings from Dan River, and this process is underway," Duke spokesman Thomas Williams said in an emailed statement.
Williams said in the email that Duke's practice is to keep emergency plans related to "major critical energy infrastructure" confidential for security reasons. But reached by phone Wednesday afternoon, he offered no explanation for why this information wouldn't be shared with environmental regulators or emergency responders.
Harrison said Wednesday that she wasn't aware energy companies were using the measure she helped craft to get around emergency plan requirements. She said the provision was inserted into the original bill to give coal plant operators planning to convert to cleaner energy some leeway with the Clean Smokestacks Act.
But as legislators enter the short session in May, she said making a fix to the oversight law is "kind of a no-brainer."
"It's been an important tool," Harrison said, "so I think we have to tighten it up."