Groups to Sue to Compel Duke Energy to Stop Withholding Required Toxic Waste Spill Safety Information

To protect Boone County and downstream Ohio River communities from toxic waste disasters, Earthjustice today notified Duke Energy and government authorities that it plans to file legal action in Kentucky to compel Duke to stop withholding critical safety information that communities need to prepare for spills of coal ash, the toxic residue left over from burning coal.

Hundreds of contaminated sites and spills have been documented among the 1,400+ coal ash waste dumps across the country. See map.

Coal ash dumps at Duke Energy’s East Bend power plant near Rabbit Hash, Kentucky, hold 1.4 million tons of toxic waste behind aging earthen dams on the banks of the Ohio River. The company admits that failure of one dump’s earthen dams could pose a “significant” hazard to the economy and the environment. Due to those serious threats, Duke Energy is required under federal law to create “Emergency Action Plans,” including contact information for emergency responders and maps showing where toxic coal ash would spill at each site in the event of a dam breach.

The federal rule further requires that these plans, including the maps, be posted on publicly accessible websites so the public and first-responders have immediate access to them.  Duke Energy, however, has refused to include critical information, including spill maps and contact information, in the plans it posted online for the public. That’s why Earthjustice today announced its intent to sue Duke Energy on behalf of Kentuckians For The Commonwealth. 

Duke Energy is America’s largest utility and the only one that is withholding this critical information from the public. In every single one of Duke’s Emergency Action Plans—including in states that face flooding and hurricanes—the utility has omitted the coal ash spill maps and blacked out the information needed to contact emergency responders in the event of a disaster. One example—the East Bend plant’s Emergency Plan.

“Communities near these coal dumps have a right to know what dangers they are facing,” said Earthjustice attorney Jenny Cassel. “They need to know: If the dam holding this toxic waste breaks, which neighborhoods are going to be flooded? Which waterways? Who can they call to provide emergency response?”

Coal ash spills can threaten lives, wreck waterways and destroy neighborhoods. In 2008, a dam collapsed at the Tennessee Valley Authority’s Kingston Fossil Plant in Harriman, TN, and more than a billion gallons of toxic sludge spilled over 300 acres, sweeping away houses, destroying riverfront property and causing over $1 billion in damages.

“I remember visiting my uncle in the late 1950s at his home on the side of the ridge overlooking the future site of the TVA Kingston Coal Plant,” recalled Mary Love of Kentuckians For The Commonwealth. “It was a beautiful view that I appreciated even as a child. I was devastated in December of 2008 as I watched reports of the coal ash spill that wrecked the Emory River and the lakes downstream.”

In another coal ash spill disaster, a breach in a massive Duke Energy coal ash impoundment in North Carolina failed in 2014, fouling 70 miles of the Dan River with toxic pollution. 

“The disasters in North Carolina and Tennessee show that we simply have to have proper information to prepare our communities here in Kentucky,” Love said. 

This is not the first time Duke Energy has been in the spotlight for mismanaging coal ash waste. Following the 2014 Dan River spill, in May of 2015, Duke Energy subsidiaries pleaded guilty to federal Clean Water Act coal ash pollution crimes in North Carolina, and the company is now under nationwide criminal probation. The company is facing continuing litigation at six of its coal ash sites in North Carolina.  

With 43 coal ash lagoons, Kentucky has the third-largest amount of dumped coal ash (more than 64,000 acre-feet) in the nation—enough to cover the Kentucky Derby’s Churchill Downs Racetrack under 800 feet of toxic sludge. Most of these dumps were constructed several decades ago, many without the oversight of a professional engineer.  Almost all of these dumps were built without impermeable liners to keep toxic chemicals from leaking into underlying groundwater or nearby surface water. Groundwater contamination has been found at numerous coal ash dumps in the state. 

Under the U.S. Environmental Protection Agency’s 2015 Coal Combustion Residuals Rule, the utilities’ Emergency Action Plans are supposed to, at minimum, include a map showing the areas that would be harmed by a spill, define events that represent safety emergencies (along with procedures to detect emergencies in a timely matter,) define responsible persons and emergency notification procedures, provide contact information of emergency responders, and plan for annual face-to-face meetings with local first-responders.

Following receipt of the notice letter, Duke Energy has 60 days to cure the violations. If it does not do so and the state or federal governments do not step in to compel Duke to provide the required safety information, federal law allows Kentuckians For The Commonwealth to proceed with a lawsuit.

Earthjustice intends to bring suit for the similar violations at several Duke Energy coal ash dumps in Indiana, and the Southern Environmental Law Center intends to bring suit for the similar violations at numerous Duke Energy coal plants in North Carolina. 

Read the notice letter.