EPA reaches deal with Duke on cleanup, but questions raised about costs, liability

EPA reaches deal with Duke on cleanup, but questions raised about costs, liability

Source: http://www.journalnow.com, May 22, 2014

Duke Energy and the U.S. Environmental Protection Agency signed a formal agreement Thursday requiring the power company to clean up the Dan River spill, put the waste in a lined landfill and reimburse the federal government for its supervision of the process.

The agreement means EPA “will work with Duke Energy to ensure that cleanup at the site, and affected areas, is comprehensive based on sound scientific and ecological principles, complies with federal and state environmental standards, and moves as quickly as possible,” EPA regional administrator Heather McTeer Toney said.

Environmentalists hailed the agreement for its requirement that ash recovered from the river be sent to a lined landfill.

“In other words, EPA is requiring that Duke dispose of this ash in the way that we have been urging Duke to dispose of all its coal ash in North Carolina for almost two years,” said Frank Holleman, senior attorney with the Southern Environmental Law Center in Chapel Hill.

He said the state Department of Environment and Natural Resources should take a cue and require the utility to similarly handle coal ash at its other 13 active and retired coal-fired plants with ash basins similar to the plant where the Dan spill occurred.

The state agency supervises most of Duke Energy’s ash-handling practices on behalf of the EPA. But federal officials took the lead in the Dan River spill because of its size and the fact it caused pollution in both North Carolina and Virginia.

The spill happened Feb. 2 when a drainage pipe ruptured under an ash-storage pond at the retired Dan River Steam Station on the outskirts of Eden, releasing up to 39,000 tons of ash and 27 million gallons of waste water into the river.

Duke Energy began dredging operations last week at the largest coal ash deposit left by the spill, more than 20 miles downstream in Danville, Va. That recovered ash is going to a lined landfill near Roxboro, North Carolina.

The power company called the EPA agreement a “significant milestone in Duke Energy’s ongoing efforts to restore and monitor the Dan River and surrounding environment” in a public statement Thursday evening.

But Duke spokesman Dave Scanzoni said it was not a sweeping pledge to send all the Dan River plant’s coal ash to a landfill, only that released into the river in the spill.

“This agreement governs the removal of the ash from the Dan River,” Scanzoni said. “This specifically addresses the river itself.”

The company has pledged to move the ash that remains at the Eden site away from the river. But in addition to landfills, it is considering recycling what’s stored there in such ways as “structural fill” in construction projects, he said.

Holleman said it was important the agreement invoked the Superfund law that governs hazardous waste because that signals the serious threat coal ash poses to the environment.

But the agreement with the EPA also could help Duke by shielding it from spill-related lawsuits by “public interest citizen groups” trying to hold Duke accountable for poor environmental stewardship, said Peter Harrison, a lawyer with the environmental group Waterkeeper Alliance.

“But I don’t think it will afford Duke any protection from land owners suing for damage to their property,” Harrison said.

It certainly didn’t shield the utility from a lawsuit filed Wednesday in Delaware by two shareholders disturbed by the company’s coal ash predicament. Duke shareholder Edward Tansey and the Police Retirement System of St. Louis contend in the suit that several top company executives and its board of directors negligently allowed coal ash problems at Dan River and the other North Carolina plants to balloon into billions of dollars in potential liability, the Charlotte Observer reported Thursday.

Meanwhile, Duke said in an unrelated, financial report filed Thursday with the federal Securities and Exchange Commission that it could not estimate how much it will ultimately cost to comply with the new EPA agreement in cleaning up the Dan River, nor what it’s likely to owe EPA for supervising the river cleansing effort.

“However, EPA’s requested reimbursement costs to date have been less than $1 million,” Duke vice president Julie S. Janson said in the SEC filing.

About a month ago, the utility said it already had spent about $15 million on the Dan River cleanup, but the utility has not updated that figure since.

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