Duke Energy’s sweet deal

Duke Energy engineers and contractors survey the site of a February 2014 coal ash spill at the Dan River power plant in Eden.
Duke Energy engineers and contractors survey the site of a February 2014 coal ash spill at the Dan River power plant in Eden. AP

From an editorial Monday in the Raleigh News & Observer:

Well, one has to admire the legal tactics if not the outcome. Duke Energy, after years of coal ash violations, made a deal with the state last week to make a $7 million payment, $500,000 for each of 14 coal ash pit and pond sites to settle the matter. In February, fears of a breach became a reality when a Duke coal ash pit in Western North Carolina spewed 39,000 tons of toxic waste into the Dan River.

Criminal investigations ensued. Gov. Pat McCrory, a former long-time Duke employee when he was mayor of Charlotte, the company’s headquarters, vowed a righteous response.

Indeed, state environmental regulators levied a $25.1 million fine against Duke. But that all went away Tuesday when the state and the company settled for that $7 million. Duke called it a payment and didn’t even seem to concede it was a fine.

Frank Holleman, a lawyer for the Southern Environmental Law Center, rightly called it a sweetheart deal for Duke. “There’s a $7 million fine,” Holleman said, “but Duke gets amnesty at every single site in the state. Where is any new requirement on Duke to do something it wasn’t already required to do?”

Duke is paying millions for cleanup and wrestling with what to do about remaining coal ash pits, which contain heavy metals that are an environmental hazard. Duke says tainted groundwater near the sites contains “trace elements” of the metals.

The state in this case appears to have fallen victim either to a botched investigation or to the high-dollar legal team Duke threw at the problem.

In legal filings, the company claimed that Donald van der Vaart, secretary of the newly renamed state Department of Environmental Quality, told his staff to figure a big fine for Duke so that McCrory wouldn’t look bad as a former Duke employee. For its part, DEQ said Duke had been delaying action for years.

But there seems little doubt that the country’s largest electric utility certainly bested the state in this case. Going from $25 million to $7 million doesn’t seem the shrewdest negotiating on the state’s part. And the coal ash problem is an ongoing threat.

A spokesperson for DEQ tried, unsuccessfully, to put a good face on the situation: “We both see value in putting this case behind us so that we can turn our full attention to the coal ash cleanup and basin closure process.” It’s likely some of Duke’s “full attention” was directed toward a victory party somewhere in Charlotte.

This tepid response to reprehensible threats of environmental problems related to coal ash only underscores the attitude of the governor and GOP legislative leaders that business should be left alone with regards to regulation, and if something happens to the environment, well, that’s just the chance you have to take.