Duke Energy Seeks To Avoid Public Input On Coal Ash Clean Up

Duke Energy Seeks To Avoid Public Input On Coal Ash Clean Up

By / State News / Wednesday, 19 August 2015 04:00

RALEIGH, N.C. : August 12th, 2015 - The N.C. Department of Environment and Natural Resources filed briefs today that would hold Duke Energy accountable for the cleanup of its 14 coal ash facilities throughout North Carolina and protect the public’s right to provide its input.
The filings oppose Duke Energy and the Southern Environmental Law Center’s attempt to circumvent the public participation and scientific analysis required by the Coal Ash Management Act (CAMA).
In a July 2015 filing, Duke Energy asked the court to add three sites to the priority list, which would bypass the law and silence the public. CAMA defines four high-priority sites (Riverbend, Sutton, Dan River and Asheville) for excavation, requires Duke to develop scientific information for DENR’s review, and provides for extensive public input on prioritizing the remaining 10 sites. The SELC filed a motion that supports Duke Energy’s effort to avoid public participation. The seemingly cozy relationship between Duke Energy and the SELC takes away the voice of people who have to live with Duke Energy’s decisions long after the process is over.
“The Coal Ash Management Act mandates a transparent process with significant opportunity for public involvement in key decisions related to the closure of Duke Energy’s coal ash impoundments,” said DENR Secretary Donald van der Vaart.  “Because the environmental impact and potential cost to ratepayers are so significant, DENR is not prepared to rely exclusively on Duke Energy’s and the SELC’s opinions about how to prioritize the excavation of coal ash sites. Instead, we believe science and public input, as required by law, should drive the decision-making process.”
Duke Energy estimates that the total cost of excavating all coal ash sites will reach $10 billion. Coal ash is already being moved at some sites as directed by DENR. The law requires prioritization of the remaining 10 facilities by the end of 2015. A scientific determination has yet to be made as to whether excavating each coal ash pond would best protect public health and the environment.
“We find it curious that the SELC would trust Duke Energy rather than following state law and the public input that it requires,” said DENR General Counsel Sam Hayes. “Under previous administrations, Duke was allowed to make decisions about coal ash that resulted in mismanagement and contaminated groundwater.”
Duke Energy recently pleaded guilty to a number of federal crimes related to the mismanagement of coal ash ponds.  
Earlier this year, DENR issued the state’s largest-ever penalty for environmental damages, fining the utility $25.1 million for groundwater contamination at the Sutton Plant near Wilmington. Duke is challenging the fine and continues to deny any wrongdoing at Sutton.
In June State officials ordered Duke Energy to stop the continued spread of coal ash contamination in the groundwater near its Wilmington power plant.
The N.C. Department of Environment and Natural Resources issued Duke Energy a notice of regulatory requirement after recent tests showed high levels of boron, a metal that is a recognized indicator of coal ash contamination, in monitoring wells at or beyond the facility’s compliance boundary as well as three water supply wellswells within a half mile of the facility. The levels of boron in the water supply wells did not exceed state groundwater standards but were much higher than concentrations found in background wells in the area.
“The levels of boron in these wells are a clear indication that coal ash constituents from Duke Energy’s coal ash impoundments have infiltrated  the groundwater supply,” said Tom Reeder, an assistant secretary for DENR. “We are ordering Duke Energy to immediately take corrective actions to prevent further migration of coal ash contaminants.”
The utility had until July 9 to control and prevent further migration of coal ash contaminants and submit a plan to monitor for the effectiveness of its actions. Failure to meet the state’s requirements may result in a fine.
The state fined Duke Energy $25.1 million on March 10 for violations of groundwater standards at the plant; it is the state’s largest-ever penalty for environmental damages.
The order issued today is consistent with Governor Pat McCrory’s Executive Order 62, which instructs DENR to take appropriate action to halt any violations of the law in order to protect groundwater and drinking water from the impacts of coal ash. The notice of regulatory requirement complements the $25.1 million fine by ordering Duke Energy to stop the further spread of any groundwater contamination. DENR’s groundwater assessments of all Duke Energy’s coal ash facilities, including Sutton, are ongoing. The agency will take action, as needed, if other problems are detected.
DENR has retained Kilpatrick Townsend & Stockton LLP for legal services related to Duke Energy’s decision to contest the $25.1 million fine DENR issued to the utility in March for groundwater contamination at its Sutton Plant near Wilmington (Duke Energy Progress, Inc. v N.C. Department of Environment and Natural Resources, Division of Water Resources (No. 15-EHR-02581)).
The law firm, together with the N.C. Attorney General’s office, will represent DENR through all phases of the litigation.
“It is evident that Duke Energy is choosing to spend its virtually limitless legal resources to fight fines for clearly documented groundwater contamination stemming from its coal ash impoundments near the Sutton Plant,” said DENR’s General Counsel Sam Hayes. “In addition to the Attorney General’s office, the state has hired outside counsel to form the best legal team possible to make sure Duke Energy is held accountable for its assault on the environment.”
It is not uncommon for the state to retain special counsel for complex cases. The governor is authorized pursuant to N.C. Gen. Stat. § 147-17(a) to employ such special counsel as he deems necessary to represent the state’s interests. Similarly, the Attorney General’s Office retained Resolution Law Group in a suit the state brought against the Tennessee Valley Authority related to air pollution in 2006.
State environmental officials received groundwater assessment reports on August 5th, from Duke Energy for three facilities with coal ash ponds in eastern North Carolina.
The groundwater assessment reports for H.F. Lee Power Station in Goldsboro, Sutton Power Station in Wilmington and Weatherspoon Steam Electric Plant in Lumberton are an important step toward cleaning up coal ash as the reports will be used by the N.C. Department of Environment and Natural Resources to prioritize the closure of the coal ash impoundments.
“The reports we received today from Duke Energy are a direct result of our ongoing and aggressive approach to cleanup coal ash in North Carolina and hold Duke Energy accountable for environmental damages,” said Tom Reeder, assistant secretary of the state Department of Environment and Natural Resources. “The information contained in these reports will help ensure that all coal ash storage ponds are closed in a manner that best protects public health and the environment so that North Carolina can finally turn the page on this coal ash problem that has been building for the past 60 years.”
Duke Energy is required by Executive Order 62 and the Coal Ash Management Act of 2014 to submit to DENR a groundwater assessment report for each of its facilities. Groundwater assessment reports for the Dan River Steam Station, Cliffside Steam Station, Riverbend Steam Station, Allen Steam Station, Asheville Power Station and Buck Steam Station are due later this month.
DENR has started reviewing the reports to determine the extent of groundwater contamination under the three facilities. By state law, the reports are required to describe all exceedances of state groundwater quality standards associated with the coal ash impoundments. Once the state environmental agency determines the report is accurate and complete, Duke Energy will have up to 180 days to submit a proposed Groundwater Corrective Action Plan to the department for its review and approval.
Governor Pat McCrory issued Executive Order 62 in August 2014, which set North Carolina on a path to address the safe cleanup of coal ash statewide and provided a framework for the comprehensive Coal Ash Management Act of 2014. In the 10 months since the act became law, the state has worked rigorously to issue the permits necessary to safely remove coal ash and close all coal ash ponds. DENR has worked closely with the Environmental Protection Agency to comply with its new coal ash permitting requirements.
The groundwater assessment plans can be accessed online at http://portal.ncdenr.org/web/guest/coalashnews
Source: North Carolina Department of Environment and Natural Resources.

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