NC environmental regulators may reinstate coal ash deal with Duke

Posted February 25, 2014
Updated March 9, 2014

Coal ash

— State environmental regulators have told a Superior Court judge they may want to reinstate, and could expand, a controversial settlement with Duke Energy regarding the cleanup of two coal ash ponds in North Carolina. 

That settlement between the Department of Environment and Natural Resources and Duke came in for criticism from environmental groups following a Feb. 2 coal ash spill from a now-shuttered power plant on the Dan River. The spill has coated 70 miles of riverbed with 30,000 to 40,000 tons of toxin-laced ash, according to the Duke and observations the U.S. Fish and Wildlife Service. 

"DENR is apparently considering the possibility of shielding more Duke Energy coal ash pits under its do-nothing settlement deal with Duke, which requires no real action to clean up of those coal ash lagoons," said D.J. Gerken, senior attorney at Southern Environmental Law Center.

Also Tuesday, DENR announced that it was in the process of modifying a permit for the Dan River spill site in a way that could require the power company to move coal ash from that location to a lined landfill. 

"We are taking swift and appropriate action to address a catastrophic failure at the Dan River power plant," Tom Reeder, director of the state Division of Water Resources, said in a statement.

Letter says settlement could return

Coal ash is the material left over after coal is burned for fuel. It contains arsenic, selenium, mercury and other heavy metals hazardous to fish and humans. Ash ponds, many of which have been around since the 1950s, are an older method of storing it. As with the power stations themselves, which relied on water to create steam to turn turbines, the ponds are typically perched near streams and reservoirs that serve as recreation areas and drinking water supplies.

Environmental groups and scientists say those ponds are leaching harmful materials into both underground and surface water supplies. After nonprofits threatened to sue Duke over those leaks, the state filed suit itself last year. However, DENR officials proposed a settlement that included a $99,000 fine for pollution at steam stations near Asheville and Charlotte. 

A week after the Dan River spill, environmental regulators put that settlement – called a consent order – on hold. In a letter to the court filed on Feb. 20, DENR told Judge Paul Ridgeway that it may consider reinstating the deal. 

"Recommendations might include, but are not limited to, maintaining the Consent Order as proposed, recommending the inclusion of additional provisions, or expanding the overall scope of the Consent Order to include additional facilities," lawyers for DENR wrote.

The same letters says the department will propose a final Consent Order with Duke by March 21.  

"On Feb. 10, we asked Judge Ridgeway to postpone consideration of the consent order," DENR spokesman Jamie Kritzer said in an email to WRAL News. "All the department did Friday was to put a timeframe on when we would report to the court whether we wish to withdraw from the settlement, expand it or modify it in some other way. DENR’s coal ash task force is currently exploring these issues and have not come to any conclusions yet. Any declarations that the agency has made decisions on this matter are untrue and cannot be substantiated by fact."

There are 14 locations throughout the state where Duke owns power plants that have coal ash ponds. The Feb. 20 letter potentially opens the door to covering all 14 locations under the currently suspended settlement. 

DENR Secretary John Skvarla defended the deal in a news conference last week, saying it would bypass litigation and set the stage for the state and the company to work together on a cleanup plan.

"Our goal is to clean up coal ash. Our goal is to protect the environment," Skvarla told reporters. "Any allegation that DENR and Duke got together and made some smoky back-room deal with a nominal fine is just absolutely not true."

Environmental groups objected to the original deal because they said it did little to force Duke to clean up coal ash ponds permanently. Expanding the deal would allow Duke to further delay commitments to cleanup the ash ponds, they said. 

"It's past time for DENR to come to its senses and require Duke to stop coal ash pollution. Duke may prefer to delay cleaning up the pollution caused by these dangerous coal ash lagoons, but the people of North Carolina deserve better," Gerken said.

Moving on Dan River spill 

The legal action over the coal ponds continues separately from the state's response to the Dan River spill.

"Actions we take with regard to this wastewater permit will be considered independent of DENR’s work to assess and impose appropriate penalties for the coal ash spill," Reeder said.

Both Duke and DENR officials have said they are considering various options to the spill. One would be to drain and dig up the coal ash pits, moving the material to lined landfills. Another would be to drain and then cap the pits with an impermeable liner to contain the ash where it sits. 

"Based on our investigation of this spill, one option under consideration right now is to eliminate all coal ash waste discharges coming from this facility and require that Duke Energy move the coal ash waste stored on-site to a lined landfill away from any waterways," Reeder said. 

Kritzer said DENR needs to modify its permit for the Dan River site before the state can order it to move the coal ash.

"In taking this action, DENR has started the regulatory process that could compel Duke Energy to move this ash to lined landfills," he said. "At present, Duke Energy has a National Pollutant Discharge Elimination System, or NPDES permit, that allows the company to discharge coal ash basin water from storage ponds at the Eden facility."

Frank Holleman, a lawyer for the Southern Environmental Law Center, which has intervened in the case between the state and Duke Energy, said modifying the state's permit was the slowest round regulators could take in dealing with the Dan River spill.

“Why aren’t they in before a judge seeking an injunction to order Duke to do it?” Holleman asked.

He also noted that DENR's permit action only deal with the Dan River location. 

"There are 13 other communities throughout North Carolina that are facing the same risk, and they deserve the same protection," Holleman said.


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  • Jump1 Feb 26, 2014

    You know that the gov. pushed this "DENR is apparently considering the possibility of shielding more Duke Energy coal ash pits under its do-nothing settlement deal with Duke, which requires no real action to clean up of those coal ash lagoons," said D.J. Gerken, senior attorney at Southern Environmental Law Center. Save my job at Duke, the Gov...

  • Jeremy Gilchrist Feb 26, 2014
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    Calling them regulators is a bit of a stretch at this point.

  • Carl Keehn Feb 26, 2014
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    Under the current administration and philosophy, the corporation is regarded as the customer of DENR and it's DENRs responsibility to provide an environment in which the business can flourish. John. E. Skvarla has stated that on a regular basis.

  • Rebelyell55 Feb 25, 2014

    So, is Duke threatening to sue the DENR? Something is very amiss here. Do they not think the Feds will find anything crimminal about their activities so far? Last I've not seen anywhere that someone (in office with the power) stand up and say, "our citizens and consumers who've already paid , will not pay for this clean up, which is the sole responsibility of the company". Anyone defending this must have a lot of stock and can afford to pay the rate increases.

  • Greg Boop Feb 25, 2014
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    View quoted thread

    and still effectively do.

  • Bart Iannetta Feb 25, 2014
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    They probably used to work for Duke!

  • David Collins Feb 25, 2014
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    Do these state regulators work for Duke???

  • Russell Chapman Feb 25, 2014
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    Eat a fish caught in the Dan River and then say its blown out of proportion.

  • Jackson Smith Feb 25, 2014
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    So the deal is Duke Energy dumps all their waste into the rivers of NC and the State of NC continues to not fine them any fair or reasonable amount and blocks others from filing suit against Duke Energy. I think I will join McCrory and buy Duke stock.

  • downtowner Feb 25, 2014

    Remember kids, regulations are job killers! Corporations are people, my friend! Now why are waiting? Let's get on to fracking!

    And finally, I think a rate increase is due so that Duke isn't overburdened with their massive fine, and need to shed more jobs.