Duke Energy refused to share possible effects of coal ash dam breaches

Posted April 2, 2014
Updated February 18, 2015

Pete Harrison, a lawyer with the Waterkeeper Alliance, takes a core sample from the Dan River near Milton, N.C., on Jan. 30, 2015. The samples will show coal ash layered with clay and natural sediments on the river bottom.

— 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

Coal ash 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

Goldsboro coal ash pond 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."


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  • Sally Bethune Apr 3, 2014
    user avatar

    Then the State government should charge Duke Energy mightily everyday until the State citizens are full told all the implication of this mess!

  • Peter Kerstetter Apr 3, 2014
    user avatar

    I've never cared for the Duke Energy take over of Progress Energy. From the first few hours, Duke seemed to act in bad faith. They have always seemed to be in the news for their fleecing the consumer and maximizing returns for the major shareholders. Typically, in a free marketing system, that's okay. But I don't have a choice where I get my power from. I'm stuck with Duke Energy and with a state government that appears to be in its pocket.

  • Stilllearnin Apr 3, 2014

    View quoted thread

    Did you actually read the article? If just going by what you claim then why is there no blame for the Dems not enforcing the rules placed in 2009?

  • rushbot Apr 3, 2014

    It appears that no political party really cares about the environment in north carolina...

  • Michael Hart Apr 3, 2014
    user avatar

    hmmmmmm? so Bev Perdue and the Democratic GA put Strict regulations in place in 2009 and Duke ignored them only to bide their time until their Home picked lackey was out into place....
    Seems the Dems were in fact working for the Citizens, the GOP..........not so much

  • Pete Muller Apr 3, 2014
    user avatar

    No surprise here. Duke Energy and CP&L got it their way almost all of the time, no matter what administration was "running" the state.

  • williamraleigh Apr 3, 2014

    1974 and earned degrees in Education and Political Science from Catawba College in 1978. Upon graduation, McCrory settled in Charlotte after being hired by Duke Energy to be part of a rigorous management training program. Through that opportunity, he learned the energy business from the ground up, digging trenches, climbing electric utility poles, and more. During his 29-year career at Duke, McCrory held management positions ranging from human resources to economic development.

  • williamraleigh Apr 3, 2014

    I can't wait till they slap the cuffs on McCrory and drag him into a federal courtroom.

  • Tim Pearce Apr 3, 2014
    user avatar

    NO FRACKING !!!!!

  • Tim Pearce Apr 3, 2014
    user avatar

    Burn 'em.... Make them pay through the nose. Monopoly.