Coal Ash Lawsuits: A History
Earlier this month a stormwater pipe running under a coal ash pond in Eden ruptured. It did the following:
- Set off the third largest spill of its kind in U.S. history.
- Led to a federal criminal investigation of possible improper benefits.
- Raised questions about preventability, clean-up, future risks and the Governor’s role.
This coal ash issue is not new to environmentalists, Duke Energy or state officials. One environmental group sued Duke to stop water contamination. Those lawsuits are an important part of this entire story.
To understand this, we need to go back to the federal Clean Water Act which was passed in 1972. Its basic function is to regulate pollutants that discharge into waterways. And it allows anyone to call attention to a possible problem.
"The logic behind the act is that the citizens who have found the violations, notify the state and the state then has the opportunity to vigorously enforce the law," said Frank Holleman, senior attorney with the Southern Environmental Law Center (SELC).
The SELC has said for years that Duke Energy is in violation of the Clean Water Act. Why?
- Coal ash is the byproduct of coal burned to create power.
- The coal ash is mixed with water and stored in unlined lagoons or ponds.
- Coal ash contains toxic substances such as arsenic, selenium, aluminum and other heavy metals.
The SELC sampled waterways near Duke’s coal ash ponds and found some of these toxins. There have never been federal or North Carolina laws regulating coal ash. In total, there are millions of tons of coal ash at 31 ponds around the state.
"Those 31 are at 14 sites and we have been warning DENR and the Governor and the legislature and Duke that there were 14 disasters waiting to happen," said Holleman.
The SELC wants the ash moved to lined landfills and covered. And so the group filed several federal lawsuits trying to force Duke's hand.
Here's what's happened so far:
- The SELC filed suit in early 2013
- Duke had 60 days to address the problem and stop the violations
- The problem was not addressed
- The state Department of Environment and Natural Resources (DENR) had 60 days to decide whether to let the SELC move through, or step in and file a state lawsuit (which would block SELC's original federal one. )
- DENR took the case in the spring of 2013
It's here in the process where SELC's Holleman says environmentalists were cut out of the conversation as the state began negotiating a settlement with Duke.
"Their desired outcome is what I called one size fits all. Their only acceptable remedy was dig ‘em up, move ‘em to lined landfills and cover them. I can assure you, it’s not that simple," said John Skvarla, the head of DENR.
Secretary Skvarla has come out in defense of his agency. Last week he called a press conference to criticize media reports, and explain the state’s position. Skvarla says there are risks to moving coal ash, but didn’t elaborate. He also says DENR’s proposed settlement with Duke included a $99,000 fine. Skvarla notes that would have been the biggest fine the state had ever issued to Duke, or any utility. He adds any settlement would keep this from carrying on for years in the courts.
"Somehow or another this 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," Skvarla said.
The proposed settlement did not include any specific plan or timeline for the clean-up or removal of coal ash. Holleman says the $99,ooo dollar fine amounts to very little for a 50 billion dollar company. He believes the entire settlement proposal is flawed.
"We could have filed a lawsuit together; they could have worked with us. They could have included us in the settlement negotiations. But they chose not to do that. Instead they chose to enter into a deal with Duke, without public participation and then in the course of the litigation they tried to restrict our ability to participate as much as they possibly could," Holleman said.
The SELC has filed similar lawsuits in South Carolina, but with significantly different results. Utility companies there agreed to clean-up coal ash. One company has begun disposal, while another has pledged to remove millions of tons of the ash and store it in a lined landfill.
"DENR has not been representing the people or the public interest. Instead DENR has been trying to put in place a settlement that would protect Duke from having to actually clean up its pollution. And DENR has not been treating the citizens as their partners," added Holleman.
The state lawsuit filed by DENR against Duke moved forward. When the two sides reached a potential settlement it triggered a public comment period, a requirement of any proposed agreement over violations of the Clean Water Act. About 5,000 people spoke out against the deal. One, a Duke employee, went on the record as being in favor of it.
Governor Pat McCrory has been in office for 13 months. He worked at Duke for 29 years. Environmental groups have long said the state’s relationship with Duke Energy is too cozy. The federal government is now investigating if there is truth to that. Prosecutors are looking for any bribes, payments or items of value; benefits that could have influenced the proposed lawsuits settlement. The state asked a judge to hold off on considering that proposed settlement two weeks ago. Hours later the subpoenas were handed down.