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RALEIGH – The Duke Energy coal ash spill already under federal investigation landed in the lap of a state legislative environmental panel Monday, forcing lawmakers to take a rare bird’s-eye look at the documented water pollution caused by the utility’s coal-waste dumps statewide.

No significantly new answers came to light during sometimes testy exchanges, though some light was shed on the extent to which state regulators have studied the best practices of other states’ handling of coal ash.

John Skvarla, the secretary of the state Department of Environment and Natural Resources, said he did not know what other states have done to eliminate coal ash, after he was asked by state Rep. Ruth Samuelson, R-Charlotte, a co-chairwoman of the Environmental Review Commission.

“I wish we had an answer for you but I don’t,” Skvarla said.

In South Carolina, Santee Cooper and SCE&G agreed in legal settlements to excavate their coal-waste ponds and bury the waste in dry, lined landfills, the Journal reported a week after the ash spill. In 2012, SCE&G agreed to remove 2.4 million tons of coal ash. In November, Santee Cooper agreed to remove 1.3 million tons of coal ash – and has since voluntarily increased that number to 11 million tons.

George Everett, Duke’s director of environmental and legislative affairs, was grilled by another panel member about the direct cause of the ash spill: the collapse of a decades-old storm-water pipe made of corrugated steel. Sen. Austin Allran, R-Hickory, noted that corrugated pipe is known to fail and questioned why it had not been inspected.

“It’s not a question of, ‘Are they going to break?’ It’s just a question of when. And so then you put an ash pond over corrugated pipe and obviously the corrugated pipe broke and you have ash in the river. So that’s kind of dumb, it seems like. Why didn’t you put a camera up there to check it out? That would cost about $1,000 or something,” Allran said.

Everett said he could not answer how much it would cost to clean up the river.

Asked by a panel member who would pay for the clean-up, Everett said Duke customers would. Shareholders should also help pay for clean-up, said State Rep. Pricey Harrison, D-Greensboro.

Four lawsuits filed in 2012 by the state Department of Environment and Natural Resources against Duke Energy assert that coal-waste dumps at 11 of Duke’s 14 coal-fired power plants illegally leak into North Carolina waterways in violation of federal clean-water laws and that monitoring wells at all the power plants show levels of potentially toxic heavy metals that exceed state-mandated standards.

Coal ash is a dark sludge carrying the carcinogenic byproduct of the coal that is burned by utility companies to churn power plants. After coal ash turned the Dan River black Feb. 2, Sen. Phil Berger, R-Rockingham, requested that the state Environmental Review Commission, comprising House and Senate members, take a look at what happened.

Duke has 31 N.C. coal ash dumps

Around 2 p.m. Feb. 2, a Sunday, a security guard at the retired coal-fired power plant in Rockingham County near the Dan River was the first to notice that something didn’t look right, Duke officials said Monday. A 27-acre coal-waste dump was receding. In the end, up to 39,000 tons of the sludge went in the river, according to Duke’s latest estimate. It contaminated the river and threatened – but did not affect – the treated drinking water supplies of downstream Virginia cities Danville and South Boston.

DENR has issued warnings against eating downstream fish or coming into contact with the water.

Clean-up of the Dan River is now the goal, said Tom Reeder, the director of DENR’s Division of Water Resources.

Earlier in the meeting, Everett had apologized for the coal-ash spill.

“I’m sorry this incident occurred. We are accountable for what happened,” Everett said.

Frank Holleman, the senior attorney for the Southern Environmental Law Center, which led the lawsuits against the South Carolina utilities and, in its view, forced DENR to sue Duke in 2012, said that people should not rely on what Duke says.

“Each of the coal-ash lagoons in North Carolina is a disaster waiting to happen,” he said.

In North Carolina, Duke has 106 million tons of coal ash at its 14 plant sites, company officials said.

The company manages about 84 million tons in a wet form in ponds, according to Duke. Some are no longer receiving coal ash. A total of 31 dumps contain coal ash: 13 active ponds, 14 semi-active and four inactive, according to the company and EPA.

Federal investigation may spur action

Federal prosecutors have started a criminal investigation into the ash spill and possible federal-law violations at other sites, according to subpoenas filed by the U.S. Attorney’s Office in Raleigh.

The federal Clean Water Act comes with criminal penalties regardless of whether violations were intentional – or negligent. As a result, criminal penalties may be sought not only for the ash spill itself, but also for various other permit-related acts or omissions, according to Al Lin, a professor of environmental law at the University of California – Davis.

“These include failure to report a permit violation, making false statements in relation to permit reporting requirements and tampering with monitoring equipment and the like,” Lin said.

The scope of the subpoena suggests that the U.S. Attorney’s Office may be looking for evidence of these sorts of violations, he said.

“In addition to those criminal sanctions that are available under the CWA, general federal criminal statutes may be relevant as well … making a false statement to federal officials, obstruction of justice, conspiracy, etc., though one would need more facts to substantiate these sorts of charges,” Lin said.

Meanwhile, state Sen. Tom Apodaca, R-Hendersonville, and state Rep. Chuck McGrady, R-Hendersonville, have said he would push legislation to deal with coal ash.

To what extent the bill would deal with coal ash is still unknown.

“Long term, we’ve got to deal with coal ash ponds,” McGrady said after the meeting. “This is Chuck McGrady’s opinion. I can’t talk for Sen. Apodaca – simply capping coal ash ponds is not the solution.”

Harrison, a member of the commission, tried to sponsor similar legislation in 2009, after a massive coal ash spill in Tennessee drew national attention. That bill was quashed – when the Legislature was still led by Democrats – because of pressure from energy-industry lobbyists.

Harrison said she is hopeful that something will happen this time.

“I saw a bunch of legislators (at the meeting) who actually never thought that environmental protections were important or that regulations were important, until they saw what happens when you don’t regulate a dangerous substance like coal ash, and I think that they’ll maybe be a little more thoughtful about all this antiregulatory pushing coming out of the Legislature” she said about the meeting. “Finally getting some action on coal ash … is a huge step forward.”

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