Early February brought the latest in coal ash disasters when a broken stormwater pipe at Duke Energy’s Dan River Steam Plant released approximately 82,000 tons of coal ash and nearly 27 million gallons of coal ash pond effluent into the Dan River in North Carolina. This is enough ash to fill about 32 Olympic-sized swimming pools and all of it poured into the Dan River upstream of drinking water plants that supply drinking water to communities in both North Carolina and Virginia. Ash flowed from the broken pipe for a week before workers contained it and the ash and effluent drifted downstream where it threatens the safety of drinking water for hundreds of thousands of residents.
Water quality tests of the river near the spill show higher levels of toxic chemicals, including arsenic, aluminum, iron, copper, lead and chromium. The North Carolina Department of Environment and Natural Resources (NCDENR) officials advised that arsenic levels appeared to be decreasing as of mid-February, but recommended avoiding prolonged direct contact with the river in the area of the spill until further notice. Both state and Federal officials are working with Duke Energy to craft a cleanup plan, and it is unclear how long cleanup might take.
Some are comparing the Dan River Spill to the 2008 spill at Tennessee Valley Authority’s (TVA) Kingston Fossil Plant where more than a billion gallons of coal ash sludge poured into the adjacent waterways and community. More than five years after the Kingston spill, the $1.2 billion cleanup continues even as TVA and Environmental Protection Agency (EPA) have recognized that nearly 500,000 cubic yards will remain on the river bottom after cleanup operations are complete. While the Dan River spill is smaller in scale than Kingston, there is no doubt that cleanup will take a significant amount of time and money and that Duke Energy should be held accountable for this disaster.
In mid-February, the U.S. Attorney launched a Federal criminal investigation of the spill and possible corruption between Duke Energy and the North Carolina government. Duke Energy has been under fire in recent years for coal ash pollution at its North Carolina plants, and a Federal grand jury is now looking into whether Duke Energy was criminally negligent.
While Duke Energy may be held liable for violations of environmental laws and regulations as a result of the spill, there were no Federal regulations in place when the spill occurred. A battle to regulate coal ash has been ongoing for a long time and intensified and came under great public scrutiny after the TVA Kingston spill. There have been Congressional efforts to prohibit EPA from regulating coal ash and there have been lawsuits filed to force EPA to issue regulations. In the months leading up to the Dan River spill, there had been two developments that seem to indicate that coal ash regulations could be forthcoming in the near term.
The first development was a U.S. District Court for the District of Columbia order that found EPA to have a duty to revise its waste regulations, and the second development was a settlement between EPA and environmental groups in which EPA agreed to finalize its coal ash rules by December of 2014. Unfortunately, neither of these developments was in time to prevent the Dan River spill and its threat to public drinking water in the surrounding area.
Lawyers in the Toxic Tort Section at Beasley Allen have been involved in the TVA coal ash spill litigation since its outset, and they continue to work on behalf of clients impacted by toxic spills like the Dan River spill. If you need additional information on this subject, contact Rhon Jones or Brantley Fry, lawyers in the Section, at 800-898-2034 or by email at Rhon.Jones@beasleyallen.com or Brantley.Fry@beasleyallen.com.
Source: Law360.com, CNN and The Associated Press
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