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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.

Commentary

In case you missed it, the good folks at NC WARN are out with a new issue brief that takes Duke Energy to task for its latest efforts to derail the widespread deployment of solar power. As the release that accompanied the brief notes:

“The Duke claim…is that, as more customers put solar panels on rooftops, other customers are left to pay more than “their share” for Duke Energy’s large, expensive power plants.

But only because Duke is a protected monopoly can it try to force captive customers to pay a higher price for a product – polluting power – that others choose to replace with solar. It is grossly unfair to force customers, instead of corporate stockholders, to pay for poor decisions to build giant, expensive power plants as the national market swings toward cheaper, safer energy generated right at the home and workplace….

Every new rooftop solar system helps all customers by reducing Duke Energy’s case to keep building expensive power plants we don’t need and continually raising rates. Solar power provides energy during times of high demand – the hottest hours of the day – eliminating Duke’s argument for building more plants.

If Duke Energy cared about low-income customers, Read More

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

News

Duke Energy Coal Ash Spill in North CarolinaIn case you missed it, WRAL is reporting that Duke Energy disclosed negotiations with the U.S. Attorney’s Office in Raleigh for a possible $100 million settlement of the pending coal ash criminal investigation that office is conducting.

Per WRAL:

The details were contained in an earnings report filed Wednesday with the Securities and Exchange Commission.

“We believe we are close to an agreement that, if approved by the court, would resolve the U.S. government’s ongoing grand jury investigation into the February 2014 Dan River coal ash spill and ash basin operations at other North Carolina coal plants,” Chief Executive Lynn Good said in a news release to announce its 2014 earnings.

The release said the proposed agreement “could be reached and filed in the next several days for consideration by the court.”

Duke has set aside $100 million “related to the company’s assessment of probable financial exposure related to any agreement,” the release said.

Not surprisingly and likely not happy about Duke Energy getting out ahead of any official announcement, U.S Attorney Thomas Walker issued his own statement:  “No comment.”

Commentary

As Raleigh’s News & Observer reported this morning, a study committee at the General Assembly appears to be in the process of advancing a legislative proposal for the 2015 session that would reverse a controversial Utilities Commission decision from last fall that provided a windfall to big utility companies.

As I explained in the Weekly Briefing last October, the ruling allowed utility companies the option to keep charging consumers for income taxes that the companies no longer paid as a result of recent corporate tax cuts. The ruling was especially controversial in that it came in the form of a direct about-face from a previous 6-1 Commission decision from just months before. In the latter ruling, three new McCrory appointees joined with the Commission chair to overrule the previous decision — a move that sparked bitter dissent from three holdover Perdue appointees.

According to news reports, most companies have not actually been collecting the windfall. Only Dominion North Carolina Power — which serves a swath of northeastern North Carolina — has been pocketing the cash thus far. Nothing, however, would prevent Duke and the other big guys from following suit at some point unless the courts and/or the General Assembly step in.

This brings us back to the Revenue Laws Study Committee which included language in its draft report to the 2015 session reversing the decision yet again — see pages 4-6. This morning’s N&O story — especially the headline (“NC lawmakers to end policy letting utilities overcharge customers”) indicated that the draft report would be adopted today and that the legislature would pass the legislation into law.

A closer look, however, shows that such an optimistic take may well be premature. Read More