DENR and the "total surrender and collapse" of its $7 million coal ash deal with Duke Energy | News
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Tuesday, September 29, 2015

DENR and the "total surrender and collapse" of its $7 million coal ash deal with Duke Energy

Posted by on Tue, Sep 29, 2015 at 2:05 PM

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Because it's been a few days since environmentalists were primed to eviscerate North Carolina's top environmental agency, the former N.C. Department of Environment and Natural Resources, now named the Department of Environmental Quality (DEQ), has announced a $7 million settlement agreement with Duke Energy.

Both parties are claiming that this agreement, a significant cut to the $25 million fine the state levied for coal ash pollution in March 2015, resolves groundwater contamination claims at all 14 of the energy company's coal ash facilities in the state. At least from the state and Duke Energy's perspective.

The Southern Environmental Law Center (SELC), which has represented citizen groups' efforts to speed clean-up since before 2014's Dan River spill, says it will plow forward with its ongoing legal case against Duke no matter what. 

SELC's lead attorney on the case, Frank Holleman, savaged the deal with Duke in a conversation with the Indy Tuesday. 

"This is a total surrender and collapse by DEQ on enforcing the law as to groundwater and at the same time attempts to get around any citizen claims" against Duke Energy, Holleman said. 

Holleman compared the surprise settlement, which you can read in its entirety here, to an agreement DENR struck with Duke in 2013, prior to the Dan River spill, in which the company agreed to allow the billion-dollar energy giant to pay a comparatively mild $99,000 fine for coal ash pollution while not requiring any clean-up. DENR dropped that deal after the Dan River spill provoked a public uproar on coal ash. 

"This was all done in the dark of the night, privately, without any sunshine whatsoever," Holleman said of this week's deal.

DEQ, however, touted the settlement, claiming it "holds Duke Energy accountable" for widespread reports of groundwater contamination and accelerates cleanup at the company's Wilmington, Asheville, Goldsboro and Stokes County plants. 

“Our chief goal is to protect the environment and public health while requiring corrective action to restore groundwater quality," said DEQ Secretary Donald R. van der Vaart in a statement. "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.”

DEQ claimed in its statement that the new deal was struck because of a 2011 policy memo written by the administration of former Gov. Bev Perdue that seems to favor corrective action in lieu of fines. Apparently, Duke used that memo during the legal process to attack the state's fine, which was the largest ever issued in DENR's history. 

However, this week's settlement includes a $7 million fine, as well as an estimated $10-15 million more in spending from Duke Energy for speeding clean-up, DEQ said. 

"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," Duke Energy said in a statement. "This comprehensive $7 million settlement resolves former, current and future groundwater issues at all 14 North Carolina coal facilities, including the retired Sutton plant."

That last part is key, according to Holleman, who says Duke may be hoping to use this agreement to claim that it has resolved all disputes over groundwater contamination. 

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