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This story originally appeared here and is published by Carolina Public Press through a content-sharing agreement with The Charlotte Observer.
By Bruce Henderson
The pressure on Duke Energy over its coal ash practices has intensified as federal authorities revealed a criminal investigation of a “suspected felony” surrounding a Feb. 2 ash spill on North Carolina’s Dan River.
Duke and the N.C. Department of Environment and Natural Resources confirmed Thursday that they were subpoenaed to produce records before a federal grand jury that will meet in Raleigh next month.
The DENR subpoena demanded documents, including correspondence with Duke, since January 2010. It seeks records linked to the broken stormwater pipe that funneled up to 39,000 tons of ash – Duke’s updated estimate – and records on other discharges and seepage from the site.
A criminal prosecution under the Clean Water Act could expose its target, including individuals, to fines triple the size of civil penalties, environmental law experts say, and potentially send somebody to prison.
Winning a conviction, they say, would hinge on whether the government could show prior knowledge of laws being broken or negligence.
U.S. Attorney Thomas Walker’s office said it could not confirm or deny the existence of any ongoing investigation. The Environmental Protection Agency, which enforces the law, is in overall charge of the Dan River spill damage and assessment. Like DENR, the EPA may levy civil fines.
Duke and DENR said they would cooperate with the investigation.
“We feel like we’ve been forthright and prompt and transparent on this, and have done everything we could to accelerate the recovery process,” Duke spokesman Tom Williams said of the spill.
Lawsuits DENR filed last year against Duke, under pressure from environmental groups, say the company broke the law with illegal discharges from its ash ponds at all 14 coal-fired power plants in North Carolina.
That’s proof that both the state and Duke knew of violations at the Dan River plant, said Frank Holleman, an attorney with the Southern Environmental Law Center. The center represents advocacy groups, including the Charlotte-based Catawba Riverkeeper Foundation, that have challenged Duke over ash in court.
“If you know you’re violating the law and continue to do it, it’s hard to say you’re not also negligent,” Holleman said. “I’ve been surprised that Duke Energy could get away with what it’s done for so long and that DENR allowed it to happen.”
Other lawyers who spoke privately about the case said it could be hard to prove a link between seepage from Duke’s ponds and the failure of the stormwater pipe at Dan River. It’s more common for prosecutors to seek criminal indictments in such cases, they say, than to win convictions.
The spill also piqued state lawmakers’ interest.
It took place in Eden, the hometown of Senate leader Phil Berger, who wants a legislative inquiry. The ash spill is on Monday’s agenda of the legislative Environmental Review Commission.
Sen. Tom Apodaca, R-Henderson, says it’s time for ash ponds to be closed statewide. Legislative staff members are drafting a bill, possibly phasing out ash ponds over five years, that Apodaca said will be introduced when lawmakers convene in May.
Apodaca, who chairs the Senate’s powerful Rules and Operations Committee, said the ash pond at Duke’s Asheville power plant “frightens the hell out of me, because if it breaks it would go across Interstate 26 and into the French Broad River.” He said other legislators are similarly unnerved.
“It’s time to stop talking about containment and start talking about a solution. It’s time to get rid of all of them as quickly as they can,” Apodaca said.
Duke stores 106 million tons of ash at its North Carolina plants, including 84 million tons in ponds. The company actively used 13 active ash ponds in the state as of November, and had 18 more that were semi-active or retired.
Duke has said it would close the ponds at retired plant sites by draining the water and capping them, or by hauling the ash to landfills. After the spill, Duke pledged to review its ash handling across its six-state territory.
“We’ll look across the board at all aspects,” Williams said Thursday.
Duke’s critics have blamed both Duke and DENR under Gov. Pat McCrory, a former Duke executive, for not aggressively addressing ash problems.
“While Duke Energy and DENR have clearly been shirking their responsibilities to adhere to environmental practices that would have protected the Dan River, a federal investigation raises the stakes considerably,” said Amy Adams of Appalachian Voices. “We’ll be watching the process closely and, like citizens in North Carolina and Virginia who have been impacted by the coal ash spill, we’re eager to find out what was truly going on that caused this crisis.”