NC Regulators Ding Duke for a Penny Per Toxic Ton

Although the North Carolina Department of Natural Resources found Duke Energy in gross violation of the federal Clean Water Act, the state agency placed so little value on public health that they were willing to settle for a pittance—a penny per ton of toxic coal ash stored at Duke’s two illegally polluting plants. To rub ash into the wound, the agency didn’t even require Duke to stop the flow of arsenic, cadmium, chromium and other toxic metals from the millions of tons of coal ash at the plants, much less clean up the pollution. The state was willing to accept $99,000 in settlement with the utility giant.

Duke Energy can spare this chump change. The utility just announced a 50 percent increase in corporate profits in 2013, amounting to $2.6 billion per year for a company already valued at $50 billion. Duke’s $99,000 penalty was nothing—it’s like one of us, earning $50,000 a year, getting fined $1.90. Barely amounting to a library fine, this is no deterrent for the likes of Duke.

If a slap on the wrist for wasn’t bad enough, North Carolina regulators behaved like thuggish bodyguards, shielding the law-breaking utility from tougher treatment in federal court. The state filed suit against Duke only after citizen groups gave notice of their intent to sue. Facing high statutory fines for many years of violations, Duke was shielded by the state’s suit from a much-larger penalty and a court-ordered cleanup. The scheme worked so well for Duke’s Riverbend and Asheville plants, NCDENR filed a protective suit against Duke for leaking coal ash dumps at all 14 plants they own in North Carolina.

The scheme may have worked but for the devastating 70-mile, 146,000-ton coal ash spill at Duke’s Dan River Plant on February 2, 2014.  While NCDENR was winking at Duke’s toxic waste dumping, the Department of Justice was watching. Last week, the U.S. Attorney issued subpoenas to Duke Energy and NCDENR for a grand jury investigation into suspected felonies concerning the massive coal ash spill. The subpoenas requested records going back to 2000 concerning the relationship between Duke and NCDENR and order nearly 20 NCDENR employees to testify before the grand jury. A criminal prosecution could expose Duke Energy, including individuals, to fines triple the size of civil penalties and potentially send company and government officials to prison.

While this drama plays out, North Carolina citizens rightfully worry about the next big spill. Duke’s coal ash ponds in NC are 40 years old on average and the median age of the utility’s largest, most dangerous ponds is nearly 50 years. All of these ponds are leaking; that much we know from the State’s own lawsuit. As for the next disaster, EPA inspections of Duke’s ponds, conducted from 2009–2013, reveal that only 10 of the 22 NC ponds inspected were in “satisfactory” condition. Six were found in “poor” condition.

The citizens of North Carolina deserve much better. They deserve immediate protection from the leaking toxic mess and prevention of the kind of devastating coal ash spill that occurred on the Dan River. It does not appear, however, that anyone can rely on safety and the protection of the environment in North Carolina.

While the U.S. Attorney, Duke Energy and North Carolina officials sort out this mess, EPA must implement a long-term solution for the state and for the nation, namely a strong federal coal ash rule that requires safe closure and cleanup of all coal ash ponds and that provides federal oversight when states like North Carolina fail to protect their own citizens.