It could take years for an accurate picture to emerge of exactly how much serious damage, if any, Duke Energy’s coal ash spill inflicted on the Dan River one year ago this week.
Early indications suggest that the environmental impact was limited to spots where significant amounts of ash settled into the river bottom and, theoretically at least, could re-emerge later as a problem.
Federal and state environmental officials have linked no fish kills or die-offs of any other river creatures to the release of roughly 39,000 tons of ash from a storage pond near Duke Energy’s retired Dan River Steam Station.
But there’s no question that the spill made an impression in the realm of politics and governmental regulation, both at the state and national levels. And it still could leave its mark in the civil or, possibly, even the criminal courtroom depending on the outcome of a grand jury inquiry that apparently remains underway.
Changes in regulation
The spill elevated the status of coal ash to environmental Public Enemy No. 1 in North Carolina and showed the nation that the massive spill in Kingston, Tenn., five years earlier, was not a fluke.
“I do think it acted as a wake-up call, nationally,” said Lisa Evans, a Massachusetts-based lawyer with the EarthJustice environmental law firm that sued successfully to force the U.S. Environmental Protection Agency’s hand in adopting stricter coal ash rules at the federal level.
The Dan River incident influenced those proposed rules, which the EPA unveiled six weeks ago. Federal regulators mentioned the spill eight times in their Dec. 19 official statement explaining the decision to impose the first nationwide standards for the handling and disposal of coal ash.
The EPA cited the spill near Eden:
* To justify stepped-up requirements for inspecting ash ponds to detect leaks, using qualified personnel and proper equipment.
* As proof storage ponds remain a threat even after they have been retired from active duty and no longer receive coal ash from operating power plants.
* As support for requiring closer inspection of drainage pipes and other “hydraulic structures” that run under or beside storage ponds, especially when those pipes are made of corrugated metal as they were, in part, at the retired Eden plant.
“All (coal ash) surface impoundments pose some risk of release – whether from a catastrophic failure or from a more limited structural failure, such as occurred at Duke Energy’s Dan River plant,” EPA regulators said in their Dec. 19 statement. “EPA is therefore requiring all (coal ash) surface impoundments be inspected by a qualified person weekly for visual signs of a potentially adverse condition and monthly (with) instrumentation monitoring.”
Meanwhile, at the state level in Raleigh, the spill led to new legislation requiring the elimination of coal ash storage ponds in North Carolina within 15 years. The new law also requires closer monitoring of potential pollution leaching from ponds while they still exist, and mandatory cleanup of any contaminants that are discovered.
In several important ways, North Carolina’s new Coal Ash Management Act goes further than the EPA standards. For example, the law prohibits new coal ash storage ponds entirely rather than just setting minimum safety and operating standards for such lagoons.
“I think that what we’ve seen from the EPA is proof that we in North Carolina saw this as a problem that needed to be addressed and we did address it in a comprehensive way,” said state Senate President Phil Berger, an Eden resident.
It could have been worse
As disastrous as the spill appeared in its immediate aftermath — lining river banks with an ugly, dark-hued gunk — it probably couldn’t have happened in a better place to limit the spill’s direct impact.
The retired plant on the outskirts of Eden stored in its two holding ponds only about 1 percent of Duke’s total volume of 108 million tons of ash that is distributed across 14 locations statewide. For example, Duke’s Belews Creek Steam Station stores more than 10 times as much coal ash as the Eden site in a lagoon that also adjoins the Dan River in neighboring Stokes County.
In addition, the drainage system that caused the Dan River spill helped to minimize it. Unlike the Kingston spill, in which ash swamped the surrounding countryside by cascading en masse over a collapsed dam wall, the Dan River ash gushed into the river through undamaged portions of the broken storm-water line, which gave utility engineers the time and the ability to staunch the flow before the primary pond was emptied of ash.
In the end, just over 3 percent of the ash within the Dan River Steam Station’s two storage ponds leaked into the river.
It was nasty. It was nothing any industry should inflict upon an unsuspecting host community. But it could have been worse.
“The catastrophe we had at the Dan River facility was at the smallest site in North Carolina,” said Frank Holleman of the Southern Environmental Law Center in Chapel Hill. “If it had been at one of the bigger sites, we’d have had an even bigger catastrophe.”
Holleman doesn’t give state government high marks for its response to the spill and the larger issue of coal ash. The new state law is fine, but no real action has been taken yet against any of Duke’s ash lagoons by the state Department of Environment and Natural Resources, he said.
“Here we are, one year after the spill, and DENR has not required Duke to clean up anything anywhere,” Holleman said. “Not one ounce of coal ash.”
Duke Energy's response
Duke’s reputation for technical competence definitely lost some luster as a result of the spill. In February 2009, two months after the Kingston calamity, Duke officials down played the likelihood of a similar spill afflicting their network of storage ponds. They told the N.C. Utilities Commission in a hearing about the coal ash threat that they inspected their ash basins for leaks and other flaws too meticulously for that to happen.
Now company officials can only swallow their pride, admit the error and promise to do better.
The spill triggered a system-wide reexamination of Duke’s coal ash handling practices to make sure no other storage site was vulnerable to “a similar kind of ash release,” said Paul Newton, Duke Energy president — North Carolina.
“We accelerated ash-basin closure planning so we can get out of the wet (coal) ash business altogether,” said Newton, who grew up in Eden. “Well before the Dan River incident, we had invested more than $130 million in transitioning our plants to handle fly-ash dry and manage it in lined landfills. Following the Dan River event, we decided to close all ash basins — even those at operating power stations.”
In addition, “we strengthened our operations by establishing a team of around 200 experts to manage coal-combustion products in our system, including coal ash,” he said. The company formed an advisory board of researchers, scientists and other coal ash experts to help guide and improve that effort. Newton added.
Duke and its stockholders will pay all costs stemming from the Dan River spill, not its rate-payers, he and other Duke executives have pledged repeatedly. The company has spent about $20 million on cleanup efforts so far, it has said in various reports.
The spill still could trigger unforeseen new costs for Duke through lawsuits by farmers, other land owners and local governments along the river, although bad weather immediately after the spill might have helped the utility to reduce its potential legal liability for that kind of damage.
Days of steady rain and a snowstorm followed the spill, filling the river and sweeping much of the ash downstream where it settled out in various “pools and eddies,” said riverside home owner Wanda Overby.
“It did Duke a great favor because nobody could come along and get soil samples,” Overby said of efforts to gather evidence that were thwarted by the rain and snow. “They scoured out the banks.”
Overby and her family own about 15 acres at the confluence of the Dan River and Rock Creek in northern Rockingham County. They joined other land owners in meeting with a group of lawyers to consider suing the utility.
The team of private attorneys earlier had pressed similar claims against the TVA for damage caused by the Kingston spill, which spewed out many times more coal ash than the Eden incident five years later.
“They were looking to see if they had an environmental lawsuit,” Overby said. “But I’m not sure that it would ever come to anything. I don’t feel that I was damaged by the spill.”
Shortly after the spill, the U.S. attorney for North Carolina’s Eastern District, Thomas G. Walker, made criminal charges another possible repercussion of the spill. He began a grand jury investigation to determine whether corruption in state government played any role in North Carolina’s coal ash woes.
The Raleigh-based prosecutor subpoenaed records from the state Department of Environment and Natural Resources, Duke and the state Utilities Commission, including decades-old engineering reports that warned Duke Energy about the limited durability of the corrugated-metal drainage pipe that caused the spill.
But so far, the grand jury has taken no public action related to the spill or the larger issue of coal ash supervision by state government over the years. A spokesman for Walker declined to comment recently when asked whether the grand jurors would be reporting their findings anytime soon.
The surrounding community
If a farm family’s crops or livestock were damaged in some way, that also could trigger a civil lawsuit. But several who farm along the river said in recent interviews they were unaffected by the coal ash in the river.
“Back in the summer, I didn’t see any evidence of it,” said Rockingham County farmer Mike Powell, whose land partly borders the Dan. “From what I’ve seen, it took quite a bit of that (ash) to harm your crops.”
The major hurdle for farmers came last spring when soil scientists studied the situation and gave them approval to irrigate crops from the river and to use it in watering their herds, said Will Strader, Rockingham County cooperative extension agent.
Researchers from N.C. State University determined that absent some new catastrophe, the water in the Dan was safe to use with no signs that arsenic, selenium and other potential pollutants in coal ash remained at worrisome levels.
“When that assessment came out last year, they were just waiting for an OK to plant their crops,” Strader said of the April announcement. “Once they got one, it was business as normal.”
Two months later, in July, the state Department of Health and Human Services withdrew the advisory it issued shortly after the spill alerting people to limit their use of the Dan for recreation or other close contact.
The DHHS continues to maintain warnings against people eating fish or shellfish caught in that stretch.
But some regular visitors to the river have ignored the caution flag.
“If I felt it was unsafe, I wouldn’t let him be playing in the water like that,” Lewis Redd said one day last fall, nodding toward his 3-year-old son, Trevor, who splashed at water’s edge near a boat-access ramp on the outskirts of Milton, about 40 miles downstream from the spill.
Redd, who works at the Goodyear tire plant in Danville, Va., said the river ran discolored for several days last February, quickly regained its normal appearance and – in Redd’s viewpoint, at least – has long since flushed out any taint of pollution.
But others read or heard of the spill and assumed it compromised the whole river with indelible pollution.
That widespread reaction dealt a blow to Three Rivers Outfitters in Eden, where co-owner Mark Bishopric said in a recent interview that his business of renting canoes or kayaks and leading groups on paddling trips declined by about 40 percent last year. He attributes much of the decline to publicity about the spill, but he can’t say for sure how much.
“You don’t get calls from people saying ‘We’re not considering you this year because (of the spill),” he said.
His business partner, Doug Shumate, said it’s remarkable how good the river looks one year after the spill, at least on the surface. He doesn’t want to improperly minimize the spill’s impact, Shumate said, “but I am thankful no person has gotten sick and no wildlife died that I’m aware of.
“I’m sure some of the results of the spill will remain for years, but the river continues to flush itself and that is a healing process.”
Calculating the damage
The Dan River region might also have suffered some type of overall economic damage from the spill, but officials have difficulty identifying how much and what sort.
Rockingham County Manager Lance Metzler said county tourism seems to have survived unscathed.
“We’ve actually seen an increase,” he said.
Still, economic developers across the region will never know the projects their communities might have been in the running for, but lost because of the spill’s stigma.
“It’s hard to prove a negative, so we don’t know,” said Joe King, city manager of Danville, more than 20 miles downstream from the spill and the community that arguably was hardest hit by accumulations of coal ash.
King said that Danville’s revenue last year from general sales, meals and hotel/motel taxes showed no decline or noticeable slackening. But the Virginia community was on a roll before the spill, rebuilding its downtown population base by encouraging the restoration of buildings left behind by the tobacco and textile industries that once had been the key to local prosperity.
“The coal ash spill caused us to lose momentum,” King said. “It put Danville on the map for all the wrong reasons.”
Day after day of published and broadcast reports that referred to the river as being “coated” for 70 continuous miles with “toxic sludge” took a toll and forced the city to delay a new marketing campaign that had been in the works, King said.
The cost over time
The amount of real harm the spill inflicted on the environment eventually will come to light, because both government and private groups have been gathering data since a few days after the spill. They have collected thousands of samples of river mud, fish tissue and the creepy crawly creatures known as “macro invertebrates” that live in the sediments.
Some early studies show glimmers of hope. A late-autumn survey of macro invertebrates by the N.C. Division of Water Resources found populations of the pollution-sensitive creatures in “excellent” shape, both upstream and downstream from the spill site.
But many of those who love the river are withholding judgment to give nature time to run its full course.
“The fact of the matter is, the coal ash is still in the river. And from what we understand from EPA, there is little chance that it will be removed,” said Tiffany Haworth, director of the nonprofit Dan River Basin Association, the Eden-based civic group that has helped to coordinate sample-gathering by volunteers and researchers from such schools as Cornell University and Virginia Tech.
Another DRBA staff member, Brian Williams, gets out regularly on the river to guide researchers to submerged ash deposits, gather his own samples and generally keep tabs on the healing process.
“Rivers are resilient, especially if the pollution is removed,” Williiams said. “But if you don’t remove the source, then the river has a lot more trouble coping with it.”
Wake Forest University researcher Dennis Lemly recently published a research paper that estimated the spill inflicted a total of $295.5 million in damages, just during the first six months after the incident. Lemly tallied the cost of harm to the environment, lost recreational opportunities, injuries to human health, reduced use of the river as a source of food, and the river’s diminished “aesthetic value.”
But few of Lemly’s calculations were based on hard data or documented damage. Many relied on subjective assessments and calculations about, for example, the dollar value of the river’s lost, aesthetic appeal that his research pegged at $75 million. Again, it will take time to tell.
Meanwhile, Duke Energy took steps pretty quickly to try to make amends and repair its image, launching a $10 million waterway fund for environmental and other philanthropic projects along rivers and lakes across the Southeast that host one or more of its power plants. The utility earmarked at least $2 million for the Dan region.
The company also joined the U.S. Fish and Wildlife Service and environmental officials from both states in a “natural resource damage assessment and restoration” process. The effort aims to identify specific, provable injuries to the river and then suggest ways to either undo the harm or make up for wounds that cannot be fixed.
Representatives from each agency are gathering evidence of injury to the stream itself, to wildlife and fish habitat, and to people’s ability to fully use and enjoy the river.
Residents, local governments, conservation groups and other nonprofits already have submitted dozens of suggestions for ways Duke could atone. They range from donating new park land for the Mayo River State Park along a major Dan tributary to improving the Riverwalk trail in Danville and dredging out silted-over boat ramps on Kerr Lake about 70 miles downstream.
Eventually, federal and state officials will settle on a list of several, specific ways that the released coal ash caused harm and then they will pick one or more projects to repair or offset each scar.
But don’t expect answers anytime soon.
“This is a long-term process, and I think folks should be prepared for a process that will go on for a long time,” said Fish and Wildlife spokeswoman Sara Ward.
She could not be specific about how long, but she noted that the so-called Dan River trustees are still assembling their plan for how to decide what has been damaged and how to choose among the various suggestions for fixing the river.
Politics in North Carolina
The spill’s impact on state politics also will only become clear with time. The stakes are particularly high for Gov. Pat McCrory, who worked for the utility nearly 30 years until he retired from his executive position in 2007 before launching his first, unsuccessful gubernatorial campaign.
After the spill, McCrory moved to distance himself from his former employer, commenting critically about the utility’s stewardship of its coal ash ponds and issuing executive orders to the DENR that outlined a get-tough approach to Duke’s various ash basins. But he bore the brunt of environmentalists’ criticism of state government and its handling of the issue, getting taken to task in a TV advertising campaign by the Natural Resources Defense Council that asserted McCrory’s ties to Duke had left “coal ash on his hands.”
And yet nearly two years loom before the next general election and depending on what happens, the Dan River spill could be a distant memory by then for many voters, said Gary Pearce, a Democratic political strategist and commentator based in Raleigh.
“There’s going to be a lot of money spent on TV commercials putting coal ash on his hands,” Pearce said of McCrory.
But making that resonate with regular folks depends on whether they see the Dan River calamity and the larger coal ash controversy as just “an environmental thing or does it become part of a larger narrative” about McCrory’s competence, Pearce said.
Republican political adviser Carter Wrenn agrees, noting that much hangs on an answer to the question Walker’s grand jury presumably is pondering: Did Duke Energy receive any improper consideration from the McCrory administration?
Wrenn said the political fallout from the spill also will be determined by the outcome of continuing scientific research into whether anyone’s health has been damaged by living near the Dan River site and Duke’s other ash ponds.
Noting that the coal ash problem spans eras when each political party held sway in Raleigh, “the Democrats and Republicans both are going to have to defend the decisions they made” about coal ash during the time they were in the driver’s seat, he said.
Despite all the uncertainly that still surrounds last year’s spill, one outcome seems relatively assured. The contents of the two ash ponds near Eden that triggered so much change and controversy will be removed in a process that could begin as early as next spring.
Tentative plans call for contractors to fill two or three, 65-car trains each week with coal ash bound for a private landfill near Richmond, Va. Each of the rail cars would hold about 100 tons of ash, Duke Energy officials say.
Working 50 hours a week at that pace, Duke estimates it will take about 18 months to remove about half the ash stored near the retired power plant.
Contact Taft Wireback at (336) 373-7100, and follow @TaftWirebackNR on Twitter.