What the state’s coal-ash capitulation to Duke means for the rest of us | North Carolina | Indy Week
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What the state’s coal-ash capitulation to Duke means for the rest of us 

Tiffany Haworth got the phone call at about 1:30 p.m.

"It was a postal worker," recalls Haworth, executive director of the Dan River Basin Association. "He said, 'I've been working this job for 30 years, and every day I stop and look at the Dan on my route. Today, it's running black. It's pitch black.'"

Please let it be a sediment issue, she thought to herself as she phoned the city of Eden, a blue-collar Rockingham County municipality of about 15,000 on the banks of the sprawling river.

It wasn't a sediment issue.

By 2 p.m. that day, Feb. 2, 2014, city officials had confirmed her worst fears. A pipe at Duke Energy's retired Eden coal plant had ruptured into the Dan, gushing tons of toxic coal ash, laden with heavy metals like arsenic and cadmium, into the river, a drinking water supply for many communities, including Eden, along the North Carolina-Virginia border.

By 4 p.m., Haworth was in tears.

"It looked like a river of asphalt," she says. "It was almost black. It was goopy. It was thick. It was heartbreaking, considering we had been working so hard to preserve and protect the Dan River for over a decade."

A year and a half later, Haworth doesn't know how to feel. Last week, Duke Energy and the N.C. Department of Environmental Quality (DEQ)—formerly the Department of Environment and Natural Resources—announced a surprise settlement on coal ash pollution, a privately negotiated deal that includes a dramatic cut on the $25 million fine the state initially imposed in March.

It was an unprecedented state penalty, and Duke didn't take it lying down. The company challenged the fine in the state's Office of Administrative Hearings, which prompted the negotiations that led to the settlement. Now, Duke will only have to pay $7 million in penalties for pollution across the state.

That's about $500,000 for each of Duke's 14 reportedly leaky coal ash lagoons in North Carolina.

"This was all done in the dark of the night, privately, without any sunshine whatsoever," says Frank Holleman, lead coal ash attorney for the Southern Environmental Law Center. He represented the Dan River Basin Association and a handful of other environmental groups that joined DEQ in a separate legal battle against Duke Energy to force the company to take action on contaminated groundwater.

The SELC had been prodding Duke since 2008, but state regulators and lawmakers did not act until after last year's highly publicized spill in the Dan River, when the state ordered the company to clean up its lagoons over the next 15 years.

When it was imposed, the $25 million fine was only supposed to settle claims of environmental contamination at one porous Duke site in Wilmington.

But based on Duke's official statements last week, the company hopes to leverage the pact into cutting off all legal claims related to coal ash in North Carolina, including the SELC's case, legal experts say.

That's because the agreement, in addition to setting the reduced fine, purports to settle "current, prior and future claims related to exceedance of groundwater standards" at Duke's coal ash sites in North Carolina.

The implications are staggering, experts say, and how the courts respond could shape all future litigation against the oft-criticized utility.

Holleman blames state regulators most of all. "It's a total surrender and collapse by DEQ on enforcing the law as to groundwater and at the same time gets around any citizen claims," he says.

This echoes a frequent criticism of the state's top environmental regulators. Under the administration of Gov. Pat McCrory, formerly a longtime Duke employee, DEQ has been dogged by allegations of an overly cozy relationship with the utility.

Ryke Longest, director of Duke University's Environmental Law and Policy Clinic, says the settlement violates DEQ's primary mission: to protect the environment of North Carolina.

Longest adds that the agreement, inked without any public vetting, is a far cry from the $102 million federal fine the company received when it pleaded guilty earlier this year to nine violations of the federal Clean Water Act.

"This was a pennies-on-the-dollar settlement," Longest says. "And it raises serious concerns about whether [DEQ] is trying to protect the environment of North Carolina or trying to protect Duke from further litigation."

DEQ isn't saying much about the settlement, which also orders Duke to "accelerate" cleanup at four of its most faulty lagoons, in Asheville, Wilmington, Goldsboro and Belews Creek.

Through a representative, DEQ Secretary Donald van der Vaart declined an interview request, directing the INDY instead to the agency's press statement.

In that statement, van der Vaart said the deal "holds Duke Energy accountable for past groundwater contamination and mandates that Duke Energy expeditiously clean up polluted groundwater at its coal ash sites. ... This settlement resolves the issue of fines for past violations and allows DEQ to commit all of its resources to overseeing Duke Energy's clean-up process."

A Duke spokeswoman also declined the INDY's request to speak with executives, pointing to the company's official statement. "We welcome the opportunity to put this issue behind us, allowing us to continue focusing on closing coal ash basins as quickly as the state process will allow," the company said.

The part about putting the issue behind them seems particularly germane. Longest says it's likely Duke will use the pact to try to dismiss claims filed by environmental groups. Whether it will work or not is hard to say.

"I can't possibly predict what a judge will say," Longest says.

Even though the state has settled, Holleman says, his plaintiffs are prepared to continue their suit against the company. Through their claims, environmental groups are hoping to force Duke to halt any ongoing seepage at its coal ash lagoons, arguing that the state has failed to compel action even amid widespread reports of water contamination at Duke facilities.

"Our position is the state may be settling their claims, but they haven't settled our claims—or the public's," he says.

Duke has recently begun cleanup at several sites, with plans to dump ash in abandoned brick mines in Chatham and Lee counties. Last year's Coal Ash Management Act, approved by the General Assembly, will require the company to dispose of roughly 100 million tons of coal ash at its most "high-risk" plants in the next 15 years. How it will do so remains unknown. Dumping in Chatham and Lee is expected to account for less than a quarter of that ash.

Haworth doesn't believe that Eden's battle with Duke Energy is over. For many in this city, the Dan is a way of life, a once-unspoiled nature center with more than 80,000 conservation acres stretching along its 11,000-mile track from the Blue Ridge Mountains to Virginia.

Duke Energy's Dan River Stream Station topped the list of potential dangers. Many in the community feared the station—which was retired in 2012 but maintained a vast lagoon of toxic coal ash on site—would inevitably leak into the Dan.

They were right.

And while state regulators and Duke claim water quality has returned to North Carolina's safe drinking-water standards, Haworth and environmental groups aren't satisfied.

After all, Haworth points out, "Surface water changes over every 30 hours or so. Once that coal ash sank to the bottom, the surface water returned to normal very quickly. It doesn't mean there isn't 30,000 tons of coal ash on the bottom of the river.

"No one on this planet can tell how long this will be with us. We don't have any exact replicas of what happened in the Dan River anywhere else. There is not an end for this."

This article appeared in print with the headline "Friend of the devil"

  • It could stop environmental groups from getting the utility to address groundwater contamination

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