Coal ash clean upIn a decision released late yesterday, U.S. District Judge Loretta C. Biggs denied Duke Energy’s request for a dismissal of the case filed by the Yadkin Riverkeeper and the Waterkeeper Alliance, seeking coal ash cleanup at the company’s Buck plant on the Yadkin River.

“The Court is unable to find that DENR was trying diligently or that its state enforcement action was calculated, in good faith, to require compliance with the [Clean Water] Act,” Biggs wrote in her decision.

“Accordingly, DENR’s state enforcement action does not bar the Riverkeepers from pursuing their Seep Claim and Hydrological Connection Claim in this citizen suit.”

Biggs added that agreements between DENR (now DEQ) and Duke Energy to stop investigation and enforcement in the pending state action evidenced a lack of due diligence on the part of the agency.

“DENR’s prosecution does not inspire confidence that its state court action will move expeditiously to a final resolution,” she wrote.

The judge also refused to stay the case, finding that further delay “has the potential to substantially harm the environment and the individuals who live near the Buck plant and draw their daily supply of water from allegedly contaminated wells.”

Instead, the groups will be able to proceed with all claims, including those related to unlawful coal ash seepage, prohibited leaks into the groundwater and river, and dam safety violations.

“This court ruling upholds citizens’ right to enforce the law against polluters like Duke Energy to protect clean water when DENR/DEQ fails to do so,” Frank Holleman, senior attorney at the Southern Environmental Law Center representing the Riverkeepers, said in a statement.  “The court found that DENR/DEQ had not been diligently pursuing enforcement against Duke Energy’s still leaking coal ash. Instead, DENR/DEQ has been diligently protecting Duke Energy.”



Commentary, News

Solar powerCharlotte-based Duke Energy, the nation’s utility company, does a lot (and spends a lot) to cozy up to powerful politicians of both parties and to promote an image of a responsible corporate citizen. Unfortunately, when it comes to the well-being of the planet, it’s clear that Duke is solidly aligned with the polluters and exploiters. A new report from the good people at Environment North Carolina explains:

“Duke Energy is front and center in a new report connecting the company to a national network of utility interest groups and fossil-fuel industry-funded think tanks providing funding, model legislation, and political support for anti-solar campaigns across the country.

‘North Carolina is a solar success story, providing a clean, renewable source of energy to power our homes and businesses,’ said Rachel Morales, clean energy organizer with Environment North Carolina. ‘Duke Energy, with help from fossil fuel interest groups, are fighting to take away that progress, preventing us from reaching our full solar potential.’

The report, Blocking the Sun, was released by Environment North Carolina Research & Policy Center, and shows that while Duke Energy touts its support for solar energy, the company is simultaneously lobbing against policies that would help solar grow. In Florida, Duke Energy is actively giving campaign contributions to anti-solar politicians. While here in North Carolina, the company is an active opponent of the same policies that have helped North Carolina rank fourth nationally for solar capacity added two years running.

‘It’s tragic that Duke Energy was able to recklessly disrupt North Carolina’s once-growing renewable energy industry,’ said Jim Warren, director of NC WARN, an energy and climate justice group. ‘They are killing jobs and slowing the urgently needed national shift to clean, affordable energy. This excellent report exposes those shameful efforts.’

Duke Energy is not alone in its effort to scale back solar energy’s growth. In September, the American Energy Alliance, a Koch brothers front group, held a forum to voice concerns about the growing renewables market it North Carolina. Representative Mike Hager, R- Rutherford, former Duke Energy employee and outspoken opponent of North Carolina’s renewable energy standards and renewable energy tax incentives, organized the event.

‘By wide margins, North Carolina supports pro-solar policies,’ said Morales. ‘Duke Energy, the Koch brothers, and their friends in the legislature are working to dismantle commonsense energy policy that is working for North Carolina. We need our leaders in the General Assembly to stand up to Duke, and support solar energy initiatives that make it easier for every farm, family, and business to go solar.'”

Click here to download and read the entire report.


Duke Energy Coal Ash Spill in North CarolinaIn just a little over a year, from lawsuit to settlement in 2012, citizen and conservation groups in South Carolina pushed South Carolina Electric & Gas to begin cleaning up coal ash contamination at its sites there.

State environmental regulators stayed out and the utility stepped up, coming up with a plan to remove the ash from lagoons and either re-use it if possible or move it to lined storage elsewhere.

Other utilities there — including Duke Energy — likewise agreed later to do the same and have thus far removed more than a million tons of ash.

Compare that to what’s happened here since 2012. In October of that year, environmental groups asked the  state’s Environmental Management Commission for a ruling on how groundwater contaminations rules applied to coal ash sites here, and prepared for lawsuits against the company for contamination at its Asheville and Riverbend plants.

But unlike what happened in South Carolina, the state here stepped in at the last minute and the utility pushed back. Now, three years and a catastrophic coal ash spill later, those groups are still battling the state and Duke Energy over coal ash management. Instead of clean up, what they’ve gotten is delay, denial and diminution of the company’s obligations.

The September settlement between Duke Energy and the newly-rebranded Department of Environmental Quality, allowing Duke to pay a $7 million fine for groundwater pollution at all 14 of its coal ash sites here, is just the latest chapter in that saga.

That fine is a far cry from the $25 million DEQ had previously imposed on Duke for violations just at the Sutton Steam Plant near Wilmington. Duke subsequently appealed that fine, but then reached a global settlement with the state settling all claims and cases involving all its coal ash plants here.

The agreement also requires no cleanup commitments from Duke beyond what the company has already agreed to do, which involves removal of the ash at only a few plants.

Yesterday the groups filed a lawsuit asking the court to set aside that settlement.

“This latest sweetheart settlement shows what happens when Duke Energy and state bureaucrats get in a room together without public scrutiny,” said Frank Holleman, an attorney at the Southern Environmental Law Center representing the groups.

“Citizen action has produced cleanup commitments at seven dangerous, polluting coal ash sites in North Carolina so far, in spite of the state and Duke trying for years to block citizens from protecting our rivers, lakes, and drinking water. That’s why we are asking the court to ensure those efforts can continue.”

Read the new complaint here.


DENRpicIn papers filed yesterday, the state through the Department of Environment and Natural Resources asked the court hearing the enforcement actions against Duke Energy to stay the proceedings with respect to ten of Duke’s 14 coal ash plants, saying that a delay would allow the department and Duke Energy to classify and prioritize the ten sites as required under the new Coal Ash Management Act.

The four plants not included in the request are the Asheville Steam Electric Generation Plant, Riverbend Steam Station, Dan River Combined Cycle Steam Station and L.V. Sutton Steam Electric Plant — which the General Assembly already classified as high-risk and are subject to motions for judgement pending in court.

DENR contends that a stay would allow members of the public to participate in the assessment of the ten plants, touting provisions of the Act.

But the Southern Environmental Law Center, which represents advocacy groups that had early on pushed the state to take action and have been permitted to intervene in the enforcement actions, called the motion just another delay tactic, illustrating how DENR continues to work side-by-side with Duke Energy as opposed to aggressively enforcing state regulations.

According to Frank Holleman, senior attorney with the Center, DENR has done nothing to pursue the enforcement cases and never asked the Court to order a cleanup of any site.

“We learned this month that DENR has even agreed with Duke Energy that it will not seek any information from Duke Energy through the enforcement proceedings,” Holleman said in a statement.

“Now, DENR is trying to stop the citizens groups from obtaining from DENR and Duke Energy information to enforce the law. This attempt to stop the enforcement of the law follows DENR’s incomprehensible attempt to stop the Court from ordering the cleanup of three dangerous and polluting coal ash sites, even though Duke Energy agrees they should be cleaned up. DENR has become a bureaucracy that puts its bureaucratic turf issues ahead of its mission to protect North Carolina’s communities and clean water.”



Duke Energy Coal Ash Spill in North CarolinaAs Triangle Business Journal first reported late last week, Duke Energy has been hit with yet another shareholder lawsuit arising out of the coal ash mess, this time by shareholder E.F. Greenberg and filed in federal court in Raleigh.

Greenberg contends that Duke Energy’s directors made significant admissions regarding their conduct in response to coal ash problems weeks before board elections took place, yet failed to disclose as much to shareholders and to the Securities and Exchange Commission.

“Despite their obligations under applicable federal law, the director defendants caused Duke to prepare, file and disseminate the proxy statement to Duke shareholders in materially incomplete and misleading form in order to secure the election of directors supported by the director defendants,” the shareholder alleges in her complaint.

Admissions of misconduct, and underlying facts, only became public a week after elections at Duke’s May 14 criminal sentencing hearing.

Here’s more from the complaint:

17. To be clear, plaintiff is not contending that any plea agreements, plea negotiations, sentencing memoranda, or even the Statement of Facts itself were required to be included verbatim in the Proxy Statement. However, the substance of the salient factual matters admitted to by Duke were highly material to shareholders called upon to vote upon directors, and should have been included in or referred to some meaningful extent in the Proxy Statement, just as the Judgment of Sentence, at paragraph 3B requires that Duke advise shareholders of the “criminal behavior.”

18. Further startling disclosures concerning the matters to which Duke had previously admitted and agreed to, including appropriately imposed far reaching and stringent monetary and non-monetary therapeutic relief and judicial oversight are set forth in the Judgment of Conviction and Sentencing entered by the Court following the sentencing hearing on May 14, 2015.

19. The substance of these highly relevant and material facts that Duke admitted to in February of 2015 but did not disclose until one week after the Annual Meeting of Shareholders, involved a documented course of environmental recklessness.

20. These admitted facts were so serious and so extensive that Duke’s management and Board were deemed to be so unreliable and untrustworthy as to environmental matters, that Duke was appropriately required, as part of the Court’s sentence, to agree to cede extensive control of the Company’s operations for the foreseeable future to the management of a Court Appointed Monitor ).

21. Therefore, the substance of the facts to which Duke had admitted in February of 2015 was such as to demonstrate that the very individuals who had been entrusted to manage and oversee Duke’s compliance with its responsibilities under the environmental laws (including the defendants named in this Complaint) had failed so utterly and so completely, that they could no longer be trusted to run the Company on their own, without extensive and invasive outside monitoring and oversight.

That makes at least seven shareholder lawsuits filed against the company arising out its coal ash debacle.

Five had already been filed in Delaware Chancery Court and one in North Carolina Business Court – alleging that the company knew about the clean water act violations at its coal ash plants but failed to take action and exposed the company to potentially billions of dollars in liability. All seek changes in corporate governance and damages from losses resulting from clean-up and fines.

Company officials had asked both the Delaware and North Carolina courts to stay proceedings in the shareholder suits until after the criminal cases have been resolved.

Read the Greenberg complaint here.