Duke Energy settles lawsuit over Sutton plant; submits post-hurricane Plan of Action for Lee

Two smokestacks from Duke Energy's Sutton coal-fired power plant in Wilmington

Duke Energy Sutton plant near Wilmington (Photo: Duke Energy)

Duke Energy has settled a lawsuit with three environmental groups by contributing $1 million to a fund that will be used to protect the Lower Cape Fear Basin at and below the Sutton plant in Wilmington. Under the terms of the agreement, the utility will also provide up to $250,000 in matching funds raised by conservation groups.

Cape Fear River Watch, Sierra Club and Waterkeeper Alliance had sued the utility over coal ash contamination from the Sutton plant. The Southern Environmental Law Center represented the plaintiffs.

“With this settlement the conservation groups have now achieved their goals to address Duke Energy’s coal ash storage at Sutton,” said Frank Holleman, SELC senior attorney, in a prepared statement. “The Sutton coal ash is being moved to safe dry, lined storage; the water from the Sutton coal ash lagoons is being treated; the Flemington community has gotten a water line; and now the waters of the Cape Fear will be improved to compensate for the coal ash pollution of our waters.”

An oversight board will administer the funds. It will be composed of representatives of Cape Fear River Watch, Waterkeeper Alliance, Duke Energy, UNC Wilmington’s Department of Environmental Studies, NOAA and the Southeastern North Carolina Environmental Justice Coalition.

By court order or settlement, conservation groups have resolved litigation with Duke Energy at eight of 14 unlined coal ash sites in North Carolina. Coal ash at Riverbend, Asheville, Sutton, Dan River, H.F. Lee, Weatherspoon and Buck must be excavated and moved to dry, lined storage or be recycled for concrete.

However, six sites are still subject to lawsuits over the clean up: Mayo, Roxboro, Belew’s Creek, Cliffside (now known as Rogers), Marshall and Allen.

Plan of Action to address contamination from Hurricane Matthew

In late October, Duke Energy also submitted a Plan of Action to NC DEQ to address any contamination from the Lee plant in Goldsboro that occurred because of Hurricane Matthew.

That plan called for sampling and monitoring for heavy metals and other chemicals associated with coal ash.

Record flooding from the hurricane pushed water from the Neuse River through an emergency spillway at a 545-acre cooling pond. Rising waters then toppled the berm, causing a breach in the dam. The pond did not contain coal ash, but provided cooling water to the power plants on site, which included the coal fired unit before it was retired in 2012. Duke officials said sampling indicated there were no significant impacts to the river.

A triangle pond also flooded. It was used briefly in the 1980s to accept chemical metal cleaning waste from the old coal-fired units at the Lee complex. The pond is enclosed and has no discharge system. Currently, the pond only receives stormwater from rain. Before the hurricane hit, Duke estimates the pond contained about 2 million gallons of water.

But during the heavy rains of Oct. 8-9, flooding from the Neuse overtopped the pond dike, allowing the old stormwater to mix with the river. Duke sampling shows that levels of copper were elevated above water quality standard of 2.7 parts per billion.

Three inactive coal basins also flooded, releasing cenospheres, a byproduct of coal ash into the Neuse.

Matthew Starr, the Upper Neuse Riverkeeper, spotted the cenospheres while surveilling the dam and ponds near the plant. He criticized Duke for “changing its story many times” over the contamination.  Duke and NC DEQ both maintained that cenospheres, hollow balls of silicone and aluminum, are inert. However, these hollow balls can also contain arsenic and other heavy metals that are also present in fly ash.

“They aren’t inert,” Starr said of the material. “And DEQ supported [Duke Energy], which is just as upsetting.”

Since the storm waters receded, Duke has built a temporary dam at the cooling pond while the utility secures permits for a permanent one. Duke has also installed barriers outside of an inactive ash basin, and vacuumed the cenospheres, although in the wetlands, workers may use hand tools to avoid further damaging the area. Duke’s plan also calls for covering exposed ash in the eroded area within the basin with dirt and stone. Any removed solid materials will be put in the active basin. Water could be placed in either the active or inactive basins. 

Public hearings on Duke Energy plants

Monday, Nov. 28, 6 p.m., Dennis Wicker Civic Center, 1801 Nash St., Sanford: Comment on the draft wastewater discharge permit from the Cape Fear plant

Thursday, Dec. 8, 6 p.m., Robeson Community College A.D. Lewis Auditorium, 5160 Fayetteville Road, Lumberton: Comment on the draft wastewater discharge permit from the Weatherspoon plant




Six events to have on your radar this week

1. What’s next for NC’s immigrant community? – With the 2016 election mostly concluded, concerns are arising as to the future of the immigrant community and the safety of current undocumented residents. El Pueblo is holding a post-election recap meeting this evening to analyze what has transpired and what it might mean for the Latinx community of North Carolina. Immigration attorney Jenny Doyle will be present to speak on these issues, as well as addressing concerns for the future of the Deferred Action for Childhood Arrivals (DACA) program.

“Now is the time to think things through and understand what issues we may be facing in the coming year,” says Iliana Santillan, organizer of tonight’s meeting. “Community members have approached us with legitimate concerns after the last election, and the best way to respond is by informing oneself on what might lie ahead.”

Tonight’s event begins at 5:30 pm at El Pueblo’s offices (2321 Crabtree Blvd, Ste. 105) in Raleigh.Rev. barber 2

2. Moral Monday at the Capitol – Also this evening at 5:30 pm, NC NAACP President Rev. Dr. William Barber and the Forward Together movement gather to stand against “he policies and rhetoric of hate and fear and the continued attempt to go against the will of the people and to steal our votes and, with them, state elections.”

This special Moral Monday will be held on the East side of the NC State Capitol, 1 E. Edenton Street, Raleigh.

3. Recovery from Matthew – While Hurricane Matthew has fallen out of headlines, recovery from the storm continues to be slow and laborious process.

This week the Hurricane Matthew Recovery Committee will hold public hearings in Greenville and Kinston.

Pitt Countyhurricane_matthew_aftermath_wikicommons-400x225
November 30 at 10:00 a.m.
East Carolina University
Heart Institute

Lenoir County
December 2 at 10:00 a.m.
Lenoir Community College
Waller Building

Initial assessments estimate Hurricane Matthew caused $2 billion in economic damage to the state.

4. Appealing the gubernatorial race – On Thursday the State Board of Elections should have a better handle on how to handle Pat McCrory’s appeal in the gubernatorial race. As Policy Watch’s Joe Killian reported Sunday, the state board is awaiting a full transcript of the Durham Board of Elections meeting from a week ago before deciding how to proceed. Here’s more from Killian’s story:

“In a weekend press release, the McCrory campaign said it would drop its request for a statewide recount if Durham County were to hold a recount and the results were the same.

The state board said Sunday that it had no communication from the McCrory campaign to that effect.”

On Monday, Roy Cooper’s campaign announced its lead in the race had climbed to 9,133 votes as counties finalize their results.

5. Trust in our government – UNC system President Emeritus Tom Ross will address the rebuilding of trust in our government after a contentious election cycle this Thursday at Duke University’s Sanford School of Public Policy.

Ross’ lecture begins at 5:30 pm at the Sanford Fleishman Commons.

6. Not My President – Finally, look for anti-Trump protesters to turn out in full force this weekend as nmpthey stage a Not My President rally in downtown Raleigh on December 3rd. The event kicks off at noon at Saturday at Nash Square, 201 S Dawson St, Raleigh.

A Facebook events page shows nearly 3oo people planning to attend.

Courts & the Law, HB2, News

Charlotte Observer: More than $10.5 million spent defending GOP laws

It’s costly to defend controversial laws. The Charlotte Observer reported late last week that North Carolina Republican lawmakers have spent more than $10.5 million defending laws about everything from redistricting and voter identification to House Bill 2.

And that price tag will grow as cases work through the appeals process.

Almost half the money – $4.9 million – went to defend the state’s sweeping voter law, which was overturned by a panel of federal judges.

Lawmakers spent another $3.7 million defending redistricting plans that were also overturned. And they’ve spent more than $1.2 million on behalf of HB2, which faces multiple legal challenges.

The Republican led legislature came into power in 2011. Since then, 13 GOP laws have been struck down, according to an earlier, separate report from WRAL.

The Charlotte Observer examines the politics and the reasons behind the legal spending associated with defending some of those GOP laws.

Republicans say the size of their spending is because Democratic Attorney General Roy Cooper – who holds a narrow lead in the governor’s race – either disparaged some laws or chose not to defend them.

“Roy Cooper’s refusal to do the job he was elected to do is the main reason the legislature has been forced to hire outside counsel, and he is squarely responsible for the increased costs on taxpayers,” said Amy Auth, a spokeswoman for Senate GOP Leader Phil Berger.

Cooper declined to defend HB2 and the state’s marriage amendment after an appeals court rejected it, but he has defended two dozen other GOP laws including those involving redistricting and abortion.

And he defended other laws even after he publicly criticized them, such as one allowing magistrates to recuse themselves from performing same-sex marriage. GOP lawmakers hired outside counsel to defend the magistrate bill even while Cooper’s attorneys were defending it in court.

“Attorneys with our office routinely defend state laws when challenged, even when Attorney General Cooper disagrees with those laws,” Cooper spokeswoman Noelle Talley said in a statement. “Our office has defended the state in numerous recent challenges to laws.”

Michael Gerhardt, a specialist in government and law at the UNC law school, told the Charlotte Observer that the amount of money spent was not surprising but could have been spent differently.

“Those of us living in North Carolina know that we don’t have as much money as we used to have,” he said. “That money paid to attorneys didn’t go to schools. That money didn’t go to protect the environment. It didn’t go to a lot of places. But they found it somewhere. And I would describe that as tragic.”


The best editorial of the weekend

If you missed it, be sure to check out the lead editorial in Sunday’s edition of Raleigh’s News & Observer. As it rightfully highlights, the state’s conservative powers that be are up to no good again (and a remarkable degree of hypocrisy) when it comes to voting and election laws.

Not only are they wrongfully attempting to cast doubt on a number of legitimate voters in what the N&O describes as Pat McCrory’s “increasingly futile” effort to overturn his defeat in the gubernatorial election, they’re now telegraphing that they’ll attempt to use their bogus claims as grounds for once again pushing voter suppression laws in 2017 of the kind struck down by the federal courts earlier this year.

The editorial accurately terms this a “transparent” effort to suppress the votes of  groups with which the leaders tend to disagree — the young, the elderly, the poor and people of color. Here’s the excellent concluding sentence:

“It is an insult to democracy and a waste of the public’s money.”

Tragically, that sentence could be used to describe a large proportion of the laws enacted by the state’s right-wing leaders during the last five years. Click here to read the entire editorial.


State Board of elections could meet this week on Durham appeal

The N.C. State Board of Elections held an emergency teleconference meeting Sunday to consider Gov. Pat McCrory’s request that they look into thousands of Durham county ballots his campaign is questioning in the Nov. 8 election.

The board said it couldn’t move forward with the request until it has a full transcript of the Durham Board of Elections meeting from a week ago. At that meeting the GOP-dominated board rejected the Republican governor’s protest over the ballots.

The board said it would seek that information from Durham in the next 48 hours and would look to schedule its own hearing by the end of this week.

McCrory trails his Democratic challenger, Attorney General Roy Cooper, by about 7,700 votes, according the state board of elections. That lead that has grown steadily since election night as absentee and provision ballots have been counted. McCrory has yet to concede the race and has mounted challenges and protests in more than half of the state’s 100 counties, alleging voting irregularities and fraud.

Cooper has declared victory in the election and begun setting up a transition team.

Last week the state board decided to leave the authority to decide protests with the individual county boards, all of which are dominated by appointed Republicans. So far, each of the boards that have heard McCrory’s protests have rejected them.

In a weekend press release, the McCrory campaign said it would drop its request for a statewide recount if Durham County were to hold a recount and the results were the same.

The state board said Sunday that it had no communication from the McCrory campaign to that effect.

The board also held a closed session to discuss the federal lawsuit brought by the conservative Civitas Institute over same-day registration. The board moved to hire the Brooks Piece law firm as outside counsel in the case.