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.

HB 363, Del. Kaye Kory’s common sense public and environmental health bill

On a distant planet, one much like ours, called ‘common sense’, there exists an economic system that not only promotes continual growth, but one that also takes human and environmental health into consideration when new projects are being proposed. Unfortunately for many economies on planet earth, we’re light years away. But there is hope.

Come 2014 and Virginia Delegate Kaye Kory’s HB 363 (Electric Utility Regulation; Approval of Generation Facilities), a bill that would require the State Corporation Commission to consider public health and environmental costs when reviewing new generation projects, according to the Virginia Conservation Network.

While HB 363 may be a modest piece of legislation relative to what could be contrived, it could go a long way in saving lives, environmental health, and ultimately, money. Three cheers for Del. Kory. She must be one of those few who have ventured from planet ‘common sense’ to spread their wisdom on earth.