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The Fayetteville Observer has a fine editorial this morning taking the McCrory administration to task for the latest lame plan to deal with coal ash pollution and the ongoing discharges into our drinking water supplies. As the paper notes, the plan features a loophole the size of a coal fired power plant: it has no deadlines for compliance.

“Duke Energy was caught last year leaking excessive wastewater from its coal-ash ponds into soil and waterways. Duke is negotiating a federal settlement to pay resulting penalties. But the state Department of Environment and Natural Resources has found a way to ensure that the company doesn’t violate the law that way again: New permits will make future discharges legal….

…The logic behind DENR’s approach now is to give Duke time to fix these problems. Thinking the company could stop all leaks overnight would be unreasonable. If Duke works toward long-term solutions, DENR can offer permits letting the status quo remain legal temporarily without incurring additional penalties….

Unfortunately, there’s an element missing from DENR’s permitting plan that creates a massive loophole for continued pollution: There’s no timetable for Duke to make progress. That puts DENR’s policy back into the absurd category.

What good is a state agency that just writes permits allowing major polluters to continue doing more of the same indefinitely? Including a wish, even a vague expectation, that Duke will one day mend its ways doesn’t cut it. For Duke’s part, the company has expressed its intent to work toward rapid closure of the coal-ash ponds. If so, that’s great. But it won’t be due to any tough stance from DENR.

As the Southern Environmental Law Center, which sued Duke over coal-ash storage, has noted, DENR’s permit plan includes no interim steps that Duke must take to stay on track. The agency needs to rethink its handling of these permits, and work toward a policy with more teeth for working with Duke and other polluters in the future.”

Of course, what the Observer fails to note is that is that such loopholes are no accident; they are what you get when a once proud environmental protection agency is gradually hollowed out and transformed pursuant to the demands and directives of the state’s biggest corporate polluters.

News

U.S. Attorney’s offices across the state filed a series of criminal cases today accusing Duke Energy of negligent discharge of coal ash and coal ash wastewater into rivers adjacent to company coal ash plants.

In Raleigh, the misdemeanor charges were filed in connection to spills at the H.F. Lee Steam Plant.

In Charlotte, similar charges were filed arising out of spills at the Riverbend and Asheville plants, according to the Charlotte Observer.

And in the state’s Middle District in Winston-Salem, charges were filed for negligent discharge at the Dan River Steam Station in  Eden and permitting and inspection violations at the Cape Fear Electric Steam Station in Moncure.

The charges follow Duke’s announcement earlier in the week of a possible $100 million settlement of the federal government’s investigation into spills at the plants.

In a statement released late yesterday, the company said that it had reached a proposed agreement with the federal government settling the charges that includes payments of $68.2 million in fines and restitution and $34 million for community service and mitigation — to be borne by shareholders, not customers.

The settlement agreement, which as of the time of this post has not been confirmed by the U.S. Attorney’s offices involved, must be approved by the court. 

It also does not resolve claims in pending civil cases arising out of coal ash spills and does not appear, per the Duke Energy statement, to provide specifically for clean up at each of the company’s plants in North Carolina.

In response to the announcement, Frank Holleman, an attorney with the Southern Environmental Law Center who represents several citizens groups in those pending actions, said in a statement:

Today, Duke Energy has admitted that it committed environmental crimes in its coal ash storage across North Carolina.  We informed Duke Energy and DENR of these violations of the Clean Water Act in 2013, yet Duke Energy’s polluting coal ash storage has yet to be cleaned up and has now resulted in criminal prosecutions.  The important points is this:  Duke Energy cannot buy its way out of its coal ash scandal, it has to clean its way out.  Duke Energy and its executives must show the people of North Carolina that they are sorry for these crimes by moving the dangerous and polluting coal ash to safe, dry, lined storage away from our rivers and drinking water supplies.

Read the Criminal Informations in the Raleigh cases below.

Duke Criminal 1 by NC Policy Watch

Duke Energy Criminal 2 by NC Policy Watch

Commentary

2-24-14-NCPW-cartoonTry as some people might to wish North Carolina’s massive coal ash problem away, it isn’t going anywhere soon — either physically or politically. Another chapter will begin to unfold this coming Sunday evening when the CBS news magazine show 60 Minutes  examines the situation.

According to the Charlotte Business Journal, Duke CEO Lynn Good will be interviewed by Leslie Stahl. No word on whether they will discuss the intimate relationship between Duke and the McCrory administration.

The Guv. of course is a former 28-year Duke employee, who keeps hiring many of his former colleagues into state government.

The story was apparently recorded in September, but the coal ash mess hasn’t gotten any better since — with residents of Lee County balking at hosting a repository, new leaks springing up and a federal investigation of the whole situation still lurking out there somewhere.

Bottom line: Stay tuned. Neither the coal ash itself or the political fallout from the Dan River disaster will be buried anytime soon.

News

Supreme CourtThe state Supreme Court today bypassed the Court of Appeals and took five controversial cases for direct review, exercising its rarely-used discretion and raising eyebrows over the timing, with contentious partisan elections soon getting underway.

The issues raised in the cases — school vouchers, coal ash, class certification — are hot buttons, and some of the parties involved have deep-pockets — including Duke Energy and U.S. Tobacco Cooperative

The high court took those cases despite having yet to render opinions in several high-profile cases — including the redistricting case, which has been pending since argument in January, and two cases concerning the Racial Justice Act, pending since argument in April.

Here are the cases:

Hart v. North Carolina:  This is the appeal of Superior Court Judge Robert Hobgood’s August ruling that the state’s newly-enacted school voucher program was unconstitutional because it:

1) appropriates to private schools grades K-12, by use of funds which apparently have gone to the university system budget but which should be used exclusively for establishing and maintaining the uniform system of free public schools;

2) appropriates education funds in a manner that does not accomplish a public purpose;

3) appropriates educational funds outside the supervision and administration of the state board of education;

4) creates a non-uniform system of education;

5) appropriates taxpayer funds to educational institutions that have no standards, curriculum and requirements for teachers and principals to be certified;

6) fails to guard and maintain the rights of the people who privilege the education by siphoning money from the public schools in favor of private schools; and

7) allows funding of non-public schools that discriminate on account of religion.

The case had just gotten underway in the Court of Appeals before the Supreme Court’s order today.

Cape Fear River Watch v. N.C. Environmental Management Commission:  This is Duke Energy’s appeal of Superior Court Judge Paul Ridgeway’s March ruling requiring the company to immediately eliminate the source of groundwater contamination at its coal ash pits — in advance of any clean-up plans it might later adopt.  In its opening brief in the Court of Appeals, Duke Energy argues that the Coal Ash Management Act passed by the General Assembly in August overruled the lower court’s decision.

Fisher v. Flue-Cured Tobacco Cooperative Stabilization (U.S. Tobacco Cooperative): This is an appeal of the certification of a class comprised of some 800,000 past and present tobacco farmers (per U.S. Tobacco Co-op’s brief) claiming to be entitled to and seeking payment from a $340 million reserve fund held and maintained by the cooperative.

Arnesen v. Rivers Edge Golf Club: Five cases are consolidated in this appeal, in which purchasers of vacant lots in Brunswick County sued the developer, mortgage broker, appraisers, attorneys, and BBT Bank, alleging a scheme to sell the lots at artificially inflated prices through “high-pressure, misleading sales tactics, fruadulent appraisals, unscrupulous lending practice and other conduct.”  Purchasers of the lots are appealing orders from the Business Court dismissing certain claims and defendants.

Cubbage v. N.C. State University Endowment Fund: This case concerns the pending sale of the Hofmann State Forest by the N.C. State Endowment Fund, which plaintiffs say was negotiated in secret and failed to comply with the N.C. Environmental Policy Act because the fund never obtained an Environmental Impact Statement. Wake County Superior Court Judge Shannon Joseph dismissed the case last November.