News & Insights

ROCKINGHAM CO. PROPERTY OWNERS AGREE TO SETTLEMENT WITH DUKE ENERGY ON DAN RIVER COAL ASH SPILL

RALEIGH, NC (March 6, 2019) — A group of 33 property owners along the Dan River in Rockingham County today agreed to settle a lawsuit with Duke Energy for damages they suffered from one of the worst environmental disasters in North Carolina history. The settlement was announced by plaintiffs’ attorney Bryan Brice of the Law Offices of Bryan Brice in Raleigh. Terms were not disclosed.

The settlement comes almost five years to the day when a catastrophic spill began from a coal ash holding pond at Duke Energy’s Dan River Steam Station near Eden, NC. The spill from a 48” corrugated metal pipe lying under the primary ash disposal basin began on February 2, 2014 and continued for several more days, ultimately pouring more than 39,000 tons of coal ash and 27 million gallons of toxic pond water into the river. Another 36” reinforced concrete pipe under the basin was found to be leaking elevated levels of arsenic on February 14th and was plugged a week later. It coated riverbanks with a thick gray sludge and covered the river bottom with ash for as far as 70 miles downstream.

Coal ash is the byproduct of burning coal and contains elements of arsenic, hexavalent chromium, selenium and vanadium, and other toxic constituents. Elevated levels of these chemicals were found in the river following the spill in violation of federal regulations, Brice said. For example, the spill dumped more than 3,500 pounds of arsenic into the river; a release of only one pound is enough to trigger a violation, Brice said. “The despoliation of the Dan River as a result of Duke’s negligence caused significant hardship for these 33 individuals and their families,” Brice said. “It was a tragedy that should never have occurred. “On the fifth anniversary of the spill, we have finally arrived at what we believe is a fair conclusion to compensate these families for the diminution of their property values and for the loss of their use and enjoyment that resulted from this spill,” he said.

“This settlement also puts Duke Energy on notice to act responsibly to protect the environment and take all necessary steps to ensure that these types of incidents do not occur again,” he said. “There are many other coal ash ponds in our state and across the country where proper closure and removal of coal ash must occur to protect all downstream property owners and the rivers upon which they live,” he said. Duke Energy converted the Dan River Steam Station plant from coal to natural gas in 2012 and ultimately demolished it in 2017. The intensely personal impacts of the spill are detailed in the Complaint and depositions from the property owners involved in the lawsuit.

Wanda Overby, for example, told of how she or one of her family used to take her grandson to the river almost every day. That all ended in February 2014, she said, when the boy was nine years old. “He used to love to play in the creek that runs through our land to the river,” she said. “After the spill, we went down there and saw the sludge. He’s 14 now and he’s only been in the creek one time since then, and he had to wear knee boots. “I’m sad when I think of all the memories he’ll never have,” she said. “That’s really the main thing that’s been taken from us.”

Mr. Brice ended by saying “No one was going to hold Duke Energy accountable for the impacts the coal ash spill had on these families living along the Dan River. Not DEQ not EPA; they had to do it for themselves and their families.”

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EXPANDED OPPORTUNITIES FOR BROWNFIELDS DEVELOPMENT

For 18 years, the North Carolina Brownfields Program has afforded developers a liability shield, “risk-based” cleanups, and tax incentives to encourage the redevelopment of contaminated properties. The NC Legislature has tinkered minimally with the program over the years, but this last legislative session ended with an important relaxation of the eligibility criteria.

Until now, to qualify for the Brownfields program, a would-be “Prospective Developer” has had to show “a bona fide, demonstrable desire to either buy or sell a brownfields property for the purpose of developing or redeveloping that brownfields property and [that it] did not cause or contribute to the contamination at the brownfields property.” N.C.G.S. § 130A-310.31(b). Now, the General Assembly has removed the must-desire-to-buy-or-sell criterion, so that a candidate who didn’t “cause or contribute” to the site’s contamination need only evidence a desire to develop/redevelop the site in question. That will render eligible owners of contaminated land who simply want to redevelop the site without selling it. That final, “loosening” outcome represents a sea change from what was under consideration earlier in the session. The original form of the bill (House Bill 765) would have greatly complicated the eligibility process (and left any number of applicants by the wayside).

The amendment passed by the legislature at the end of the session instead opens the BF program to potentially more applicants.  As amended, N.C.G.S. § 130A-310.31(b)(10) provides: “‘Prospective developer’ means any person with a bona fide, demonstrable desire to either buy or sell a brownfields property for the purpose of developing or redeveloping develop or redevelop a brownfields property and who did not cause or contribute to the contamination at the brownfields property.”  Assuming the Governor signs the bill (House Bill 765), the change will become effective December 1, 2015.

Under the law as it previously read, many would-be Prospective Developers have been frustrated by the buy-or-sell criterion. They owned the land in question, did not pollute it, and wanted to get out from under the tangled web of cleanup laws while at the same time restoring the land to valuable use. Now those floodgates have been opened and “innocent” owners of contaminated property who desire to redevelop it can enter the Brownfields program.  With its risk-based cleanup standards often requiring nothing more than land use restrictions, protection from further regulatory action (upon completion of required work at the site), and property tax breaks, this new amendment to the Brownfields Property Reuse Act allows for an important expansion of the universe of parties eligible to enter the program.

Our firm, which includes the attorney who created the Brownfields Program’s legal framework and was its sole counsel for its first 15 years, would be glad to help parties who think they may qualify navigate the Brownfields process, the rewards of which are plentiful.

Learn more about our Brownfields practice.

TESTING FOR MOLD — HOME TEST KITS

It can be scary to find mold in your home. Certain types of mold, and certain concentrations of mold, can cause serious injuries to you and your family.

Confronted with mold, many of my clients want to test their home for mold contamination immediately. Many hardware stores sell do-it-yourself mold-testing kits. Using one of these kits is less expensive than hiring an expert to perform the testing, so it makes sense to save money and use the do-it-yourself kit, right?

Well, not always. I am not complaining about the accuracy of these kits. However, if you have been seriously injured by mold and end up filing a lawsuit, a do-it-yourself mold-testing kit will not be considered compelling evidence at trial. The defense attorney will ask the jury to consider that you do not have the qualifications to handle mold testing yourself. Opposing counsel may even suggest to the jury that you performed the test intending to create high mold levels as a means of manufacturing a lawsuit. These arguments are usually ludicrous, but still, why take the risk?

Home mold testing kits can be useful for many things. But if you suspect that you or your home have been seriously damaged by mold, you need to leave the testing to the professionals.

If you believe you have been injured by mold, you may need legal counsel. Please give me a call. I will help you understand when to hire a mold expert, and who you should hire. There is no charge for our first meeting together.

Matthew D. Quinn, 919-754-1600, matt@attybryanbrice.com

Construction litigation in Raleigh – Toxic mold contamination attorneys in Wake CountyPersonal injury law firm serving the Triangle

MOLD IN YOUR OFFICE?

When you go to the workplace, you want to be working in a safe environment. Unfortunately an office or workplace is not always safe.

I regularly receive phone calls from persons who find mold in their office. Oftentimes these individuals have been working in an office for years, and they have noticed that they feel sick whenever they arrive. After dealing with these conditions for a lengthy period of time, it is discovered that the office is contaminated with mold. Sometimes the worker’s exposure to the mold has been so extensive that their injuries can be very significant, perhaps even permanent. Who is responsible for your medical bills?

When you are injured on the job, frequently the employer is responsible to pay workers’ compensation benefits. Workers’ compensation benefits will include paying for medical treatment related to injuries caused by mold exposure. However, workers’ compensation benefits do not compensate injured workers for many other types of damages, such as pain and suffering.

We can frequently solve that problem. For example, it is possible that a third-party (someone other than the employer) is responsible for the mold’s growth. For example, maybe an HVAC contractor negligently installed duct work in a way that caused the mold growth. In that circumstance, you might have a valid lawsuit against the contractor.

If you believe your office is contaminated with mold, I would be happy to meet with you. There is no charge for the first meeting.

Matthew D. Quinn, 919-754-1600, matt@attybryanbrice.com

Construction litigation in Raleigh – Toxic mold contamination attorneys in Wake CountyPersonal injury law firm serving the Triangle