Gerry Broome/AP

Duke Energy’s sweetheart pollution deal undone

State environmental regulator pulls cheap penalty in favor of suit amid Dan River spill scrutiny

North Carolina regulators said Friday that they have asked a judge to withdraw a proposed settlement that would have allowed Duke Energy to resolve multiple cases of environmental abuse by paying a $99,000 fine with no requirement that the $50 billion company clean up its pollution.

The consent order that the state's Department of Environment and Natural Resources (DENR) scuttled had been meant to settle violations for groundwater contamination leeching from coal ash dumps near Charlotte and Asheville, N.C. Critics had called the deal too lenient.

The order had been reached in July 2013, well before a massive February 2014 spill in Eden, N.C., coated 70 miles of the Dan River in toxic sludge and focused attention on Duke's long history of polluting groundwater with its leaky, unlined, open air coal ash ponds.

The state only took legal action against Duke after a coalition of environmental groups represented by the Southern Environmental Law Center (SELC) filed notice that they planned to sue Duke under the Clean Water Act for its pollution. The administration of North Carolina Gov. Pat McCrory — who himself spent 29 years in the employ of Duke Energy and has benefited from hundreds of thousands of dollars in campaign contributions from the company, its employees and their spouses — used its authority under the act to file state violations against Duke and then quickly negotiated the consent order, a move environmentalists say was intended to shield the company from far-harsher penalties it might have faced in federal court.

But now the U.S. Environmental Protection Agency, the DENR and the SELC, which had brought the original Clean Water Act suit against Duke last year, are joining a suit against the energy giant to get it to clean up some of its coal ash contamination.

Coal ash is the byproduct of burning coal for industrial power generation and contains concentrated amounts of toxic metals such as arsenic, lead, mercury and selenium, as well as aluminum, barium, boron, and chlorine and varying amounts of radioactive uranium, thorium and potassium. The toxins have been linked to cancer, heart damage, lung disease, respiratory distress, kidney disease, reproductive problems, gastrointestinal illness, birth defects, impaired bone growth in children and behavioral problems, according to waste assessments done by the EPA (PDF).

“We hope now that the state will vigorously enforce the law, and that the EPA will help them do that and we will be working with the state rather than having the state try to prevent us from enforcing the law,” Frank Holleman, senior attorney with SELC, told Al Jazeera.  

A '180-degree' reversal

Cleaning up the coal ash ponds involves moving them to more secure dry storage sites far from rivers, according to Holleman.

Holleman said the reasons for the “180-degree” reversal by DENR included “tremendous media and public criticism of DENR’s cozy relationship with Duke” after the Dan River spill, as well as the “federal criminal grand jury breathing down its neck.”

Indeed, in the wake of the Dan River spill, federal prosecutors are now conducting a criminal investigation of the leak and are also investigating the relationship between Duke and the state officials charged with enforcing water laws. Gov. McCrory and officials at DENR had ardently defended the proposed deal with the company, even after the February spill.

Holleman said that although the SELC is interested primarily in seeing Duke clean up its coal ash ponds, he expects the financial penalties for the energy company under the new action should be about as severe as they would have been had their original 2013 suit been allowed to proceed.

DENR said they will now partner with the EPA to pursue joint enforcement against Duke for Clean Water Act violations related to the Dan River disaster and also take on new concerns about the company’s illegal releases of contaminated wastewater at other North Carolina sites.

Duke has coal ash dumps at 14 power plants in North Carolina, all of which were cited last year for polluting groundwater. Following the Dan River spill, the company has been cited for eight more violations.

The latest came Thursday, after activists with the Waterkeeper Alliance photographed Duke employees pumping what the state now estimates was 61 million gallons of contaminated water from two coal ash dumps into a canal that empties into the Cape Fear River. On Friday, the state approved Duke's emergency plan to repair a large crack at the Cape Fear site that has opened in an earthen dam that holds back millions of tons of coal ash.

Documents obtained by The Associated Press show a state inspector noted a month ago that water levels in waste pits at the Cape Fear Plant were low, but no enforcement action was taken until after the environmental group's photos of the illegal pumping were widely reported in the news media.

The state is now testing water samples from the river for signs of hazardous chemicals.

In partnering with the EPA, state officials pointed to the federal agency's extensive experience from the ongoing cleanup in Kingston, Tenn., the site of the largest coal ash spill in the nation's history in 2008.

"The state's goal is to clean up both the Dan River and to protect public health and the environment at the other Duke Energy facilities around the state, and we are pleased to announce that the EPA will join us as we address these important issues," Gov. McCrory said in a statement.

Al Jazeera and The Associated Press. Wilson Dizard contributed reporting. 

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