Judge shows the way on environmental protection

March 8, 2014 

The environmental threat posed by Duke Energy’s coal ash storage ponds has finally met the kind of environmental regulator it needs – a judge.

Paul Ridgeway, a Wake County Superior Court judge, issued a 17-page ruling Thursday telling the utility to take “immediate action” to clean up the coal ash ponds at 14 of Duke’s active and retired coal-fired plants. Coal ash, a powder-fine byproduct generated by coal-burning plants, contains high concentrations of toxic metals.

Environmental groups have long warned about the storage hazard. Those warnings were powerfully justified on Feb. 2 when thousands of tons of coal ash spilled into the Dan River through a broken pipe.

The spill was a disaster for the Dan River, but it did have the fortunate effect of literally bringing to the surface the hazards of seepage from other storage ponds, most of them crude, unlined pits near the utility’s plants.

Ridgeway’s order may finally bring action after years of delay and discussion between state regulators and Duke Energy about what to do to safely store coal ash. It’s clear why the utility was in no hurry. It didn’t want the expense. In South Carolina, the state-owned utility Santee Cooper expects to spend $250 million over the next 10 to 15 years to clean out the ash from seven of its ponds.

Why the Department of Environment and Natural Resources has been slow to act is less clear. It appears that DENR and top state officials going back to Democratic administrations have been inclined to go slow on imposing costs on a utility that is now the largest in the nation and capable of making its views heard in the state capital. But that regrettable deference turned to outright protection this year under a Republican governor and DENR secretary who made “customer service” their mantra and part of DENR’s new mission.

When the regulators’ biggest customers are the state’s biggest polluters, it’s inevitable that better serving them will ill-serve the environment. That was the case when DENR used its authority under the federal Clean Water Act to pre-empt three lawsuits announced by lawyers representing environmental groups.

The suits would have sought the immediate cleanup of coal ash storage ponds and the relocation of the coal ash into dry, lined landfills. By pre-empting the lawsuits, DENR became the plaintiff and controlled how the legal action would be settled. The first proposed settlement – since suspended – asked for a wrist-slap fine on Duke Energy and did not require the cleanup of coal ash ponds and the removal of the ash.

DENR Secretary John Skvarla said his agency was trying to reach settlements suited to each coal ash site rather than have environmental groups demand a “one-size-fits-all” solution in which all the ash would be removed and safely stored. Skvarla can argue for individuals fits, but if his agency doesn’t remove the threat, a tailored solution is no more than an accommodation.

Such a legal rope-a-dope couldn’t stop Judge Ridgeway. He ruled in a case brought by environmental groups challenging a 2012 ruling by the state Environmental Management Commission. At issue was whether state monitoring regulations require immediate action if groundwater pollution is detected at coal ash ponds. The EMC had said no, but Ridgeway said that was “plainly erroneous” and immediate action is required.

The Dan River spill made the risks of lax regulation clear, but the response should not end with a cleanup of coal ash sites. The regulatory pliancy of DENR, Gov. Pat McCrory and the Republican-led General Assembly will lead to other lapses on other fronts. Let’s hope the courts continue to enforce the standards that state regulators have let slip.

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