Uncertainty clouds coal ash picture one year after spill

"I'd eat a fish caught in this river," said Tom Reeder, assistant secretary for the environment in the state Department of Environment and Natural Resources. As for the water, "I'd drink it right now, I don't care."

Some who live near the boat ramp where Reeder was speaking are less confident. 

Year after ash spill, state of Dan River in dispute

"There ain't nothing in there I want to eat," said Melvin Purvis, who watched the Dan River's muddy brown turn to a silver sheen a year ago.

Something about the spill, Purvis said, has driven away animals that used to frequent the area, including deer, wild turkeys and smaller critters such as groundhogs.

"We usually would take four or five deer in a year. This year, it's just been one," he said.

The public and environmental advocates have been skeptical of the state's response to the spill, which dumped more than 39,000 tons of toxin-laced ash – initial estimates reached as high as 82,000 tons but were later revised downward – into a river used for swimming and fishing and which feeds public water supplies. No more than 10 percent of that material has been removed from the riverbed, and the bulk appears destined to remain in the river. 

Skepticism has also been the watchword in terms of the state's ability to prod Duke Energy to clean up similar ponds at 14 current and shuttered power plants across the state. 

In fact, one of the first bills lawmakers plan to push through this year is a funding fix for a problem that has temporarily hobbled the new Coal Ash Management Commission, which is supposed to oversee efforts to permanently close those unlined coal ash pits and establish rules for how to store and potentially reuse the ash, which has accumulated over decades. 

Despite containing those toxins, coal ash has been stored in unlined storage ponds for decades by Duke and other North Carolina power generators. Those ponds are perched along the same waterways from which the Duke has drawn water for its steam stations – and from which millions of North Carolinians draw their drinking water. 

The 2014 Groundhog Day spill dramatically focused attention on a number of issues. The 70 miles of river fouled by the spill focused lawmakers not only on addressing the immediate crisis but on removing whatever threat might be posed by more than 30 other unlined pits across the state. In 2014, lawmakers created a new commission to oversee the cleanup of those ponds and set rules for how coal ash might be used in commercial products such as cement, shingles and wallboard. 

Among the reasons that lawmakers gave for appointing an independent panel was the fact that DENR as an agency had been responsible for overseeing Duke during the buildup of the ash ponds and the aftermath of the spill. Some also pointedly referred to the fact that Gov. Pat McCrory had been a longtime Duke employee. 

Lawmakers are not the only ones questioning the ties between the energy giant and state government.

Shortly after the spill, the U.S. attorney for the Eastern District of North Carolina issued subpoenas to current and former DENR employees, Duke and the state's Utilities Commission. According to those subpoenas, that criminal inquiry is examining the behavior of state government stretching back to the years before McCrory took office. 

"This is still an ongoing matter, and I am unable to give any further comment," said Don Connelly, a spokesman for the U.S. Attorney's Office. 

DENR Secretary Donald van der Vaart said he could not comment on the investigation or whether he believed that it was moving to any conclusion.

"Frankly, I don't know," he said. 

That is not the only hurdle facing the commission. 

Lawmakers created a surcharge on Duke to pay for both new positions at DENR and professional staff for the commission. However, because of a technical snafu with how that provision was written, money has not been coming to the commission. That has kept the commission from hiring professional staff, including an engineer, to evaluate DENR's work on the ash pond cleanup. 

"You will see one of the first bills coming out deal with funding for the commission," said Sen. Tom Apodaca, R-Henderson.

Rep. Chuck McGrady, R-Henderson, agreed that issue would be dealt with quickly. Both men are their chambers' lead authors on coal ash legislation, in part because of their districts' proximity to large coal ash ponds. 

"While broadly the perception is their regulations are weaker than what we have in North Carolina, it is not clear we are completely on the same page," McGrady said.

North Carolina can have stricter guidelines, but those guideline may not conflict with federal rules. 

Van der Vaart also said Friday that DENR was looking at how to align state law with the federal rules. 

Some advocates wish the state would go further.

"Clearly, I don't think we've done enough to take care of the problem," said Rep. Pricey Harrison, R-Guilford.

Under current law, Duke could, with the Coal Ash Management Commission's blessing, cap some coal ash ponds in place. That means the water would be removed from the ponds, and a plastic liner put over the remaining material, leaving the ash sitting where it lies in perpetuity. 

Frank Holleman, senior attorney with the Southern Environmental Law Center, said neither Duke nor the state is moving quickly enough to clean up the ponds and that capping in place should not be an option.

"In South Carolina, coal ash is being moved from riverside lagoons to safe, dry, lined storage or to appropriate recycling for concrete, and the utilities are committed to clean up every riverfront water-filled coal ash lagoon in the state," Holleman said.

That said, Holleman is not looking for action from lawmakers.

"We have no reason to think the state would do anything helpful to address the act," he said. 

Other environmental advocates also say they are going to spend more time monitoring the activities of the Coal Ash Management Commission, the Utilities Commission and the state's Environmental Management Commission, all of which will have some responsibility for coal ash regulations, than pressing lawmakers for changes. 

"We're not advocating for any changes to the (2014) Coal Ash Management Act," said Cassie Gavin, a lobbyist for the North Carolina chapter of the Sierra Club. "We're really in a wait-and-see mode to see how the Coal Ash Management Commission implements the act." 

Another potential controversy is who will pay for whatever cleanup is done.

Lawmakers placed a moratorium on such requests last year, but that has now expired. Rather than deal with the question of who pays in law, legislators say they will leave that question to the Utilities Commission.

As of yet, the company has not made such as request. 

"The fuel statute in NC allows the recovery of certain costs related to the disposal of ash, typically for beneficial reuse projects," Duke spokesman Jeff Brooks said in an email. "The company has historically recovered some costs in that manner and would likely continue to do so in the future. Outside of the provisions of that statute, though, the company does not plan to request an increase to customer rates in 2015 for ash pond closure costs."

As Pete Harrison, a lawyer with the Waterkeeper Alliance, squished his rubber, thigh-high boot into the Dan River's sediment Friday, he disturbed a year's worth of sediment and quickly found a layer of grey material, different in consistency and color than the brown clay and debris that usually lines the riverbed. It will take little more for boaters or fishermen to stir the same muck and potentially get exposed to the ash. 

"People are going to come out to use the river this summer," Harrison said.

Despite what the water sampling numbers may say, all may not be well with the river.

"This is the job of our government, to protect us and help inform us and study problems and help the public understand and evaluate the risks to themselves," he said. "That's not happening."

While DENR's Reeder said the water samples are encouraging, there are still potential problems. 

"As long as it (the coal ash) is out there, it's going to be a threat," he said.

The ash settled on a riverbed that had been a layer of sediment covering clay. After the ash lay down, another layer of sediment covered it. A major storm or other event could stir that sediment and once again mix the ash into the water. 

But Reeder, van der Vaart and Duke officials say they could do more harm than good if they remove more than the 3,000 tons of ash that have already been taken off the river bottom.

"We've been working under the direction of the U.S. EPA throughout our response effort," Brooks said. "Based on sampling data along the river and the direction we have received, we have not identified any other deposits that are suitable for removal."

That will leave advocates like Harrison looking for signs of trouble on the river and others watching how the state deals with the ponds at 14 other locations across the state. Questions like whether Duke customers will pay for the cleanup or whether some coal ash will be capped in place may not be answered this year. 

Meanwhile, the Southern Environmental Law Center is continuing to press its lawsuits seeking to have the courts require Duke to simply pick up the ash and move it somewhere else. 

"In the midst of all the politics of this, often times we miss just what is the obvious point," Holleman said. "It is a bad idea, and no sane person would support storing millions of tons of industrial waste in unlined earthen pits next to our drinking water sources."