A federal grand jury subpoenaed Duke Energy and a North Carolina regulatory agency this week as authorities launched a criminal investigation into Duke’s massive coal ash spill into the Dan River.
Earlier this week, Duke Energy permanently plugged a storm sewer under a coal ash pond that busted on February 2, which released thousands of tons of toxic coal ash waste into the Dan River, but environmental groups reported on Thursday that, in addition to the spill, pollution is seeping from a different part of the ash pond. The groups slammed state regulators for missing the leak and asked federal regulators to step in and take authority over pollution enforcement.
The US Attorney’s Office in Raleigh ordered the North Carolina Department of Environment and Natural Resources (DENR) to hand over relevant memos, emails, reports and correspondences. Duke Energy acknowledged receiving a subpoena and pledged to cooperate with any state and federal agencies investigating the spill, according to reports.
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The DENR subpoena specifically requests documents produced since 2010 that relate to “discharges or seepages from any coal ash pond on site” as well as those related to the recent spill. The US Attorney’s Office also asked for copies of all the press releases the agency has released on the spill.
The subpoena comes as state regulators face increasing scrutiny from environmental groups that have accused the DENR of initially downplaying the impacts of the spill and failing to hold Duke Energy accountable for pollution that has seeped from the ash pond in Eden and other facilities across the state for years.
The nonprofit Waterkeeper Alliance on Thursday announced that water samples from a discharge near Duke Energy’s coal ash pond tested positive for arsenic and chromium, two pollutants typically found in coal ash.
The group’s attorney Pete Harrison said he was patrolling the site when he noticed a strange discharge about a third of a mile upstream from the stormwater pipe that spilled between 30,000 and 39,000 tons of coal ash last week, according to Duke Energy. (The company originally estimated that 50,000 to 82,000 tons entered the river and revised the numbers this week, but state officials have not confirmed that estimate.)
“This area caught my attention because the rocks were stained bright orange and there was water cascading down right into the river,” Harrison said. “When I paddled closer, I could see that the rocks had a thick, slimy coating, an indication of iron-oxidizing bacteria that is often present where seepage is bleeding out of coal ash pits.”
In a statement, Waterkeeper Alliance said that at a public meeting this week, DENR officials denied knowing about the leak but asked for more information. Waterkeeper Alliance said the samples from the water discharge contained levels of arsenic 18 times the standard for human health.
“How can Duke’s cleanup plan possibly work if regulators are turning a blind eye to an ongoing leak like this?” said the group’s Executive Director Marc Yaggi.
DENR spokeswoman Susan Massengal told Truthout that the discharge is from a stormwater pipe that releases water into the river, and the Environmental Protection Agency (EPA) took samples at the site on Thursday. She said the EPA believes the orange slime initially observed by Harrison is indeed the result of iron-oxidizing bacteria.
Massengal would not comment on the test results that the Waterkeeper Alliance holds as evidence that pollution from the coal pond has been slowly seeping into the river for an unknown period of time. She said DENR is waiting on lab results from the EPA and will conduct its own tests.
DENR announced this week the creation of a task force that will review coal ash waste facilities in the state to prevent “any further unpermitted release of coal ash or pond water,” according to a statement.
DENR filed lawsuits last year seeking a court order to force Duke Energy to address groundwater contamination at the company’s 14 coal ash ponds in the state. The agency stepped in only after environmentalists threatened to take Duke Energy to federal court over the coal ash pollution.
DENR’s lawsuits effectively blocked the environmental group’s legal efforts, and the agency has come under fire for initially settling two of the cases with a minimal fine of $99,111. Earlier this week, DENR asked a federal judge to throw out those settlements after media reports criticized the deal.
Waterkeeper Alliance and other environmental groups have called on the EPA to take over coal ash enforcement from DENR. The groups accuse the agency of withholding information about the spill, misinforming the public about contamination in the river, and failing to hold Duke Energy to the same standards as other utilities.
“The McCrory administration has allowed Duke Energy to act above the law,” said Yadkin Riverkeeper member Dean Naujoks, referring to North Carolina Gov. Pat McCrory, a Republican and former Duke Energy employee.
Massengal said DENR has not withheld information from the public and has made all of its test results, as well as a timeline of events related to the spill, available on its website.
DENR initially reported last week that water samples from the Dan River did not show levels of pollutants, including several heavy metals, exceeding state water standards. Samples taken by the Waterkeeper Alliance shortly after the spill, however, showed dangerously high levels of arsenic and other contaminants. DENR later issued a correction claiming it made an “honest mistake” in interpreting its results for arsenic, which had contaminated the river at levels that endanger the health of humans and wildlife.
“We have started to collect and analyze sediment samples; we continue our ongoing evaluations of aquatic life and fish communities,” Messengal said. “That is the area where long-term concerns should be evaluated.”
DENR’s latest test results show that levels of arsenic and copper in the Dan River have fallen below state surface water standards, but levels of iron and aluminum remain elevated. On Wednesday, the state health department issued advisories urging the public to avoid coming into contact with water and eating fish or shellfish downstream from the spill zone.