Duke Energy’s coal ash conundrum and the need for a long-term solution

Duke Energy’s proposed solution to its coal ash conundrum met with continued opposition this week as the Blue Ridge Environmental Defense League (BREDL) released a report of its own dubbed “Coal Ash Disposition: The Alternative for North Carolina.” The report argues against the use of ‘landfilling’ coal ash while recommending “proven saltstone technology for the coal ash at Duke Energy's fourteen power plants.”

At present, Duke Energy plans to move coal ash from its retired electricity plants into lined and off-site landfills, a prospect that the BREDL says has a number of negative environmental downsides. According to the BREDL report, “Impartial experts agree that liner failure is inevitable, regardless of the liner type. That all liners will eventually fail is not in dispute. The only question is: How long will it take?”

Meanwhile, officials with the North Carolina Department of Environment and Natural Resources (DENR) have responded that technologies for coal ash disposal and storage locations are being reviewed. DENR’s public information officer, Jamie Kritzer, stated “The [department], the EPA and Duke Energy are looking closely at all of the available technologies for coal ash disposal and the location of where the ash will be stored in the future.” Given the cozy relationship that has existed between Duke Energy and the DENR as well as the typical public interest impotence manifested by the Environmental Protection Agency, I shudder to think what ‘solution’ these organizations will come up with.

What should be clear to decision-makers and private citizens alike is that any solution that will be reached should not pass the problem on to future generations while current technologies allow for long-term coal ash containment solutions.

But clarity is in the eye of the beholder. While saltstone technology may seem like an obvious and well-studied solution to the problem of coal-ash containment, it doesn’t appear to be as obvious to Duke Energy or its government lackeys, which is why private citizen participation and oversight in this process is so important.

So if you have the time, research this issue and come to a conclusion for yourself. And while you’re at it, do what any good citizen of a well-established republic would do, give your elected representatives your respectful opinion on the subject!

Dan River Groups Seek Cleanup of Duke’s Coal Ash Pollution - Southern Environmental Law Center

Contacts:

Kathleen Sullivan, SELC, 919-945-7106 or ksullivan@selcnc.org

Frank Holleman, SELC, 864- 979-9431 or fholleman@selcnc.org

Representing:

Tiffany Haworth, Dan River Basin Association, 336-627-6270 or thaworth@danriver.org

Michael Ward, Roanoke River Basin Association, 276-634-2540 or mward@co.henry.va.us

Ulla Reeves, Southern Alliance for Clean Energy, 828-254-6776 x2 or ulla@cleanenergy.org

Pete Harrison, Waterkeeper Alliance, 828-582-0422 or pharrison@waterkeeper.org

Dan River Groups Seek Cleanup of Duke’s Coal Ash Pollution

CHAPEL HILL, N.C.—The Southern Environmental Law Center today filed motions to allow four conservation groups working on the Dan River to participate in the state court enforcement action against Duke Energy for its illegal coal ash pollution of the Dan River and groundwater drinking supplies.  SELC filed the motion on behalf of groups that monitor and protect the Dan River– the Dan River Basin Association, the Roanoke River Basin Association, the Southern Alliance for Clean Energy, and Waterkeeper Alliance.  They identified numerous illegal discharges ignored by the state in the aftermath of Duke’s disastrous coal ash spill last month. 

“The tragic Dan River spill and the revelations of uncomfortably close ties between Duke Energy and DENR make it all the more important that citizens and local conservation groups have a seat at the table,” said Frank Holleman, the senior attorney at the Southern Environmental Law Center who represents the groups in court.  “We will work to make sure that the Dan River is protected and that Duke Energy cleans up the Dan River site.”

The groups seek to stop and clean up unpermitted streams of contaminated surface water that have been discharging from the dikes of the Dan River coal ash lagoons since before the spill and are continuing today, as well as persistent groundwater pollution leaching from these unlined impoundments that documentation shows Duke Energy and the N.C. Department of Environment and Natural Resources have known about since the early 1990s.  The illegal discharges at Dan River include high levels of coal ash pollutants such as arsenic and lead.

“It is important that local citizens in the Dan River Basin have a voice in the cleanup of Duke Energy's coal ash pollution and DRBA can represent that voice,” said Allison Szuba, president of the Dan River Basin Association (DRBA) Board of Directors. “DRBA has been serving the North Carolina and Virginia communities in the basin for over a decade and we will continue to do so by doing what is necessary to prevent this from happening again.”

“This spill demonstrates the dire need to remove coal ash from impoundments adjacent to our lakes and rivers and into dry, lined storage,” said Gene Addesso, president of the Roanoke River Basin Association.  “We cannot allow these same negligent actions to continue polluting our water and putting at risk the citizens and businesses within the Roanoke River Basin that depend on this precious natural resource.”

Previously, the North Carolina court allowed other groups to intervene with respect to Duke’s coal ash sites on Mountain Island Lake, north of Charlotte; on Lakes Wylie and Norman along the Catawba River; Duke’s Asheville site; and its Sutton site near Wilmington on the Cape Fear River..  Seven conservation groups around the state have additional motions to intervene currently pending before the court.

“The Dan River site is an ongoing disaster, with illegal discharges pouring out of the coal ash lagoons everywhere you look,” said Waterkeeper Alliance’s Pete Harrison.  “Our rivers should be protected from the scourge of coal ash, and we should make sure that the Dan River is never again subjected to coal ash pollution and a catastrophic spill.”

The Southern Environmental Law Center represented conservation groups in South Carolina in several recent legal challenges, leading to South Carolina utilities SCE&G and Santee Cooper committing to remove 13.4 million tons of coal ash from unlined lagoons at four sites throughout the state.  All the South Carolina coal ash will be moved to dry storage in lined landfills or recycled. 

“The Dan River spill shows all the things that are wrong with the primitive storage of coal ash in unlined, polluting pits next to our waterways,” said Ulla Reeves of the Southern Alliance for Clean Energy.  “It is long past time that the Dan River site was cleaned up, and moving all the Dan River coal ash away from the river to dry, lined storage should become the model for safe disposal of coal ash.” 

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About the Southern Environmental Law Center

The Southern Environmental Law Center is a regional nonprofit using the power of the law to protect the health and environment of the Southeast (Virginia, Tennessee, North and South Carolina, Georgia, and Alabama). Founded in 1986, SELC's team of nearly 60 legal and policy experts represent more than 100 partner groups on issues of climate change and energy, air and water quality, forests, the coast and wetlands, transportation, and land use. www.SouthernEnvironment.org

About the Dan River Basin Association

The Dan River Basin Association was created by residents to protect and promote the natural and cultural assets of the 3,300 square mile Dan River basin in Virginia and North Carolina through education, recreation and stewardship. www.danriver.org

About the Roanoke River Basin Association

The Roanoke River Basin Association is a non-profit organization based in Danville, Virginia, whose mission is to establish and carry out a strategy for the development, use, preservation and enhancement of the resources of the Roanoke River system of lakes and streams in the best interest of present and future generations.  RRBA consists of hundreds of members, primarily located within the 410-mile-long Roanoke River basin in Virginia and North Carolina, including local governments; non-profit, civic and community organizations; regional government entities; businesses and individuals.    http://prod.rrba.org/.

About the Southern Alliance for Clean Energy

Southern Alliance for Clean Energy is a nonprofit organization that promotes responsible energy choices that create global warming solutions and ensure clean, safe, and healthy communities throughout the Southeast.

www.cleanenergy.org

About Waterkeeper Alliance

Founded in 1999 by environmental attorney and activist Robert F. Kennedy, Jr. and several veteran Waterkeeper Organizations, Waterkeeper Alliance is a global movement of on-the-water advocates who patrol and protect over 100,000 miles of rivers, streams and coastlines in North and South America, Europe, Australia, Asia and Africa.

The case for active government regulation in the environmental sphere

Duke Energy’s most recent discharge of coal ash into the Dan River – “enough coal ash to coat 70 miles of the Dan River with toxic sludge” – provides another example of why active government regulation is necessary to protect environmental and human health. With the recent rise of radical free market ideas into mainstream politics and the Republican Party consolidation of political power in a number of states across the United States, active government regulation in the environmental sphere was deemphasized in favor of “pro-business” policies. Such pro-business policies place a much greater stress on reducing government ‘red-tape’ and relying on private businesses to police themselves in areas of environmental regulation, in particular.

As my political beliefs have changed with time, I’ve come to believe that government involvement in a number of social and economic spheres may cause more harm than good. But this is not the case when it comes to environmental regulation.

Classical liberals typically argue, implicitly or explicitly, that self-interest is the natural basis upon which private individuals cooperate with one another in society. As part of this argument, classical liberals also argue that economic incentives drive self-interested individuals to act in one way or another. And given the ability to act freely in undisturbed markets (i.e., markets without government interference), individuals will conduct efficient economic transactions that benefit the individual and society as a whole.  

But the classical liberal argument is an intellectual pipedream which disregards the possibility that private individuals (or companies) may have an economic incentive to pollute, for example, as in the case of Duke Energy. The Huffington Post states the following: “Records show that Progress Energy, which was acquired by Duke in a 2012 mega-merger, bought five acres adjacent to its coal-fired power plant near Asheville for about $1.1 million — a price tag far below what it would have cost to clean out its leaking coal ash pits.”

I would like nothing more than to agree with the classical liberal argument that government involvement and active regulation specifically regarding environmental pollution is an unnecessary policy solution. However, there are no free market solutions for issues of environmental pollution because the economic incentives to pollute are too great.

Maybe in a more perfect time and place, companies like Duke Energy would behave according to the high-minded ideals of deep ecology and intergenerational justice, as well as practical concerns such as human and environmental health. We’re not living in such a time and place, though. In our own context, businesses respond to calculated cost versus benefit analyses that favor short-term monetary gain. If the ‘free hand’ of the market were left to itself, the rest of the body would soon die of some environmentally related illness. 

The toxic coal ash legacy left for residents of Southern VA and Eden, NC

Maybe tomorrow, or the week after next, the coal ash spill in Eden, North Carolina will recede from the media’s and the public’s memory as novel news stories take center stage. But for residents of Eden, North Carolina and Southern Virginia, the coal ash spill will likely leave a toxic legacy that lasts at least a generation.

In early February, a 48-inch storm pipe at a Duke Energy coal ash pond in North Carolina ‘leaked’ thousands of tons of coal ash into the Dan River. Not too long thereafter, a second leak was found in a different 36-inch storm pipe that still has not been fully contained.

For all of their apologies in the wake of both storm pipe leaks, Duke Energy broke a promise that every U.S. energy company implicitly or explicitly makes with the residents around which its facilities are located: it neglected to take the proper steps to ensure that its business practices did not negatively affect human, wildlife, and environmental health. And now the residents affected by the coal ash spill will have to bear the burden of Duke Energy’s cost-saving business practices.

Even worse for residents directly affected by Duke Energy’s most recent environmental disaster, the public relations game that’s usually played, and the lip service which is usually paid by the offending entity and their governmental partners, doesn’t always translate into pre-spill levels of remediation. Indeed, when it comes to a spill the size of Duke Energy’s, the best remedial outcome may be achieving a particular pre-spill level of water quality that maintains human and environmental health.

While most Virginians and North Carolinian’s go on with their lives with only a residual memory of this incident in the months and years to come, history has demonstrated that without a constant stream of public attention and pressure, companies like Duke Energy quickly return to business as usual. As long as the spotlight is on them, Duke Energy will attempt to appear humbled and on the road to long-lasting reforms that mitigate any events like the coal ash spills from happening again in the future.

But the bottom line for Duke Energy is…the bottom line. Duke Energy’s upper management no more cares about environmental health than it does about the potential for multiple dimensions of reality. Duke Energy’s primary impulse is turning a larger and larger profit each quarter, not safety precautions, as witnessed by this most recent spill of toxic coal ash.

The solution is a regulatory framework that won’t allow Duke Energy to shun its legal and moral duties. The solution is also understanding that regulations are not inimical to free markets. In fact, environmental regulations may be the only instrument that allows free markets to work efficiently without destroying the natural environment upon which companies like Duke Energy depend. 

Justice Department subpoena’s DENR, but McCrory may walk away unscathed

Following the U.S. Justice Department’s announcement that a criminal investigation will be launched into the North Carolina Department of Environment and Natural Resources (DENR) after the release of over 82,000 gallons (more or less depending on your source) of coal ash into the Dan River, it remains to be seen how the federal investigation will affect North Carolina’s Gov. Pat McCrory, a former employee of Duke Energy for 28 years.

Although the specific aim of the Justice Department’s investigation cannot be disclosed, a letter attached to the subpoena that was sent to the DENR states, “An official criminal investigation of a suspected felony is being conducted by the United States and a federal grand jury.”

After the coal ash spill was discovered on February 2^nd, it was not until February 3^rd that the spill was disclosed to the public and even then, Duke Energy and the DENR “failed to disclose the massive scale of the problem – one that has been described as the third largest such coal ash spill in the nation.”

Given the DENR’s questionable reactions following the Duke Energy coal ash spill into the Dan River and North Carolina Gov. Pat McCrory’s reported close ties to his former employer, a complex picture has emerged that puts DENR’s regulatory relationship with Duke Energy in more of a ‘friendly’ role, a role that could be deemed by the U.S. Department of Justice as illegal.  

Assuming that the Department of Justice finds evidence that the DENR was criminally negligent in carrying out its regulatory function with Duke Energy, the root cause (Gov. Pat McCrory) could end up walking away from this incident with a few political bumps and bruises. That is, if Gov. Pat McCrory was responsible for the DENR’s ‘cozy’ relationship with Duke Energy, an expanded investigation by the Justice Department may be the only way to reveal the former’s legal transgressions.

Regulatory agencies like the DENR don’t act in a vacuum. Orders, directives, guidance, etc. come down from superiors (e.g., the governor) that shape the regulatory environment, be it business friendly, passive, or aggressive in its pursuit of regulatory transgressions.

Under Pat McCrory, a fairly clear picture has taken shape showing a DENR more concerned with protecting the interests of Duke Energy than with protecting the interests of the citizens of North Carolina.

And lost in this discussion are the residents of Southside Virginia and North Carolina who must deal with the consequences of Duke Energy’s mistakes. As usual, it’s these largely unheard voices that must bear the brunt of this latest environmental disaster. 

Put your dukes up, it’s time to confront perverse incentives and environmental ‘spills’

The most recent spill by Duke Energy in Eden, N.C. highlights a ‘soft’ spot in the U.S.’s economic system that reinforces the argument for stringent oversight of energy companies throughout the country. Rules and regulations have been set in place across federal, state, and local governmental levels to prevent the types of spills that residents on the border of North Carolina and Virginia now must confront. What was lacking was proper oversight by Duke Energy and the North Carolina Department of Natural Resources and Environment.  

To say that the U.S. system of economics has flaws is merely to state that it is a human construction liable to the same human errors of its creators. Environmental laws were created to address the flaws within the U.S. economic system, flaws that require constant oversight to achieve their stated ends: to protect and promote human and environmental health for current and future generations.  

Duke Energy, like every other player in the U.S. energy market, is under pressure to keep their costs as low as possible while increasing revenues. As a consequence, activities and objects which eat up profits can be neglected, as was the case with the coal ash that was improperly contained by Duke Energy. ‘Proper’ containment would have been a considerable investment with few, if any, short term returns that the company could put on its balance sheet. For the surrounding community as a whole, however, the benefits of environmental regulations have benefits that outweigh the costs.   

When the issue is confronted from its root, it’s easy to see that Duke Energy’s actions are a direct result of the economic incentive structures that presently exist in our country. We can look away or pretend that a new CEO or law without stringent enforcement provisions will somehow eliminate the perverse economic incentive to disregard costly environmental management best practices, but coal ash spills and train derailments with thousands of pounds of leaking toxic chemicals will remain.

Oftentimes, the issue of economic growth and environmental protection has been discussed in competing terms, as if protecting the environment inherently restrained economic growth. But there is no law of nature that states environmental protection shall inhibit economic growth.

In the short term, environmental protection may burden economic growth, but there is no gain where there is no pain, as the saying goes. Unfortunately for the residents who looked to the Dan River for drinking water and aesthetic beauty, the pain of a sullied body of water is very real, and there is little gain to be found. 

Duke Energy public relations machine continues in full swing in Danville, VA

When a drunk driver is arrested and tried, Virginia’s law system doesn’t allow for an apology and a swift return to business as usual. Yet, when companies like Duke Energy break the law, our system of laws bends to the point of breaking (and sometimes does break) while corporate public relations (PR) teams kick into high gear to repair any damage done to their ‘brand’ following the legal infraction.  

On Friday, Duke Energy deployed one of its first lines of PR damage control in the form of a question and answer session in Danville, VA with Duke Energy operations president, Paul Newton. According to Newton, “Duke Energy takes full responsibility and will "make it right."” What would a judge say to a drunk driver who caused thousands of dollars in damages who made this statement? Do you think the drunk driver would just be sent home with a moral opprobrium?  

According to officials from Duke Energy, the pipe that would eventually send at least 82,000 tons of coal ash into an Eden, NC river was installed in the 1960s and does not meet present-day standards. Such an omission directly contradicts a statement Duke Energy posted on its website before the recent coal ash spill: “We are confident that each of our coal ash ponds has the structural integrity necessary to protect the public and the environment.” Unfortunately, Duke Energy was wrong.

Duke Energy is not the first, nor will it be the last, energy company to ‘overlook’ safety and environmental issues to make quarterly earnings look a little bit fatter. The Dominion Virginia Power’s and Duke Energy’s of the country know full well that as long as the costs of complying with industry standards and environmental regulations don’t outweigh the benefits of doing little or nothing, the latter will be done to the potential detriment of human and environmental safety.

And if this premise holds true, then it’s yet another reason for Virginia to continue holding steady with its ban on uranium mining. If Virginia Uranium Inc., or any other company which may take its place in the future, decides that it will be cheaper to ignore environmental regulations, it very well may do so even if it means leaving a hazardous waste behind for future generations to wrestle with.

Duke Energy is merely a symptom of a law and regulatory system that is slanted in favor of short-term economic gain. Go get your stockpile of bottled drinking water because the chances are that an environmental spill affecting your drinking water is coming to a town near you.