DENR actions on coal ash raise questions

February 22, 2014 

Something does not seem right about how the Department of Environment and Natural Resources has handled the threat posed by coal ash stored in ponds around the state. And the more DENR officials try to justify their approach, the more suspicions grow.

The coal ash controversy arose this month when a pipe ruptured under a coal ash pond at a retired Duke Energy plant near Eden. The break sent 27 million gallons of wastewater and up to 39,000 tons of coal ash laced with toxic metals into the Dan River along the North Carolina-Virginia border.

Coal ash ponds – unlined pits where ash from coal-burning power plants is dumped and mixed with water – are a particularly primitive way of disposing of hazardous material. Seepage from ponds has polluted ground water. Environmental groups have been pushing for years to have the ponds emptied and the ash stored in dry, lined landfills.

One group that has made progress is the Southern Environmental Law Center. It filed three lawsuits against two utilities in South Carolina that resulted in settlements in which the utilities agreed to empty the ponds and safely store the ash or recycle it. The changes were made without any rate increase to customers.

When the SELC tried to get the same result in North Carolina, it found its efforts obstructed by DENR. In each of three cases in which the environmental group gave 60-day notice of intention to sue Duke Energy under the federal Clean Water Act, DENR used its authority under the act to preempt citizens’ suits by filing its own. As a result, it was DENR – not the more demanding SELC – that controlled how the suits would be resolved.

In the first two lawsuits involving a coal ash pond in Asheville and another near Charlotte, DENR and Duke Energy entered into a proposed consent agreement. The terms were far more favorable for Duke Energy than what SELC lawyers negotiated with utilities in South Carolina. Duke Energy agreed to pay a $99,000 fine, but it was not required to drain the ponds and move the ash to safer storage. It was a flimsy penalty for a utility that reported a $2.7 billion profit last year. After the Dan River spill, DENR asked that the consent agreement be suspended for further review.

Jim Beasley, a spokesman for South Carolina’s Department of Health and Environmental Control, said his agency decided not to preempt the SELC lawsuits in its state. Asked why, he responded with a one-sentence statement: “Our decisions are made with the goal of securing the best protection for the environment.”

DENR Secretary John Skvarla said at a news conference last week that his agency preempted the SELC lawsuits to protect the environment, not Duke Energy. “Any allegation that DENR and Duke got together and made some smoky back-room deal with a nominal fine is just absolutely not true,” he said.

The results say otherwise. The SELC got elbowed out, and Duke Energy got a wrist slap.

Skvarla said DENR doesn’t want to cut off environmental groups. “Somehow or another, the perception has been created that we are adversaries to the citizens groups when, in fact, we are all on the same side of the table. We are partners,” he said.

“Somehow or another” that perception might have been created by Skvarla. He wrote in a December op-ed article related to SELC’s opposition to building a new bridge next to the aging Bonner Bridge on the Outer Banks: “I realize that suing is what the SELC does. I suppose its leaders feel they must keep going at this point because at the federal level, if they win they can stick the taxpayers with all their legal fees. So even if the chance is remote, the risk is worth it financially. Also, the prolonged publicity allows them to continue to stimulate donations.”

Some partner.

North Carolina needs more than Skvarla’s assurance that Duke Energy didn’t get special treatment.

It’s reassuring to see that U.S. Attorney Thomas Walker has questions about how DENR has handled the coal ash issue. DENR and Duke Energy employees have been called to appear before a federal grand jury next month.

Let’s hope the next thing that spills will be the truth.

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