So much is missing from utility's deal with feds
Published February 25, 2015
Editorial by Fayetteville Observer, February 23, 2015.
After Duke Energy spilled massive amounts of coal ash into the Dan River last year, federal attorneys released a torrent of subpoenas. Attached letters said: "An official criminal investigation of a suspected felony is being conducted by an agency of the United States and a federal grand jury."
But a settlement between Duke and the federal government announced last week describes only fines for misdemeanor charges against the company, with none of the individuals whose utility or state government emails were searched being held responsible. So what happened?
Prosecutors wouldn't discuss details of the case at the time, but circumstances pointed to concerns about the company's cozy relationship with the state Department of Environment and Natural Resources under both Democratic and Republican administrations. The settlement released last week doesn't address those issues.
Duke is charged with misdemeanor violations of the Clean Water Act, including unlawful discharges into the Dan, Catawba, French Broad and Neuse rivers. It's also charged with negligence in maintaining its treatment facility on the Cape Fear River, upstream from where Cumberland, Lee, Harnett and other counties get their water. The company has agreed to pay $68.2 million in fines and provide $34 million in community service.
Aspects of the investigation may be ongoing. But in light of Duke's participation in announcing the settlement, this case seems to be done.
In the famous words of New York Judge Sol Wachter, a prosecutor can get a grand jury to "indict a ham sandwich." But not a state regulator or a Duke executive.
While prosecutors aren't legally obliged to explain charges they don't file, in this case the public needs more substantial disclosures. The Justice Department needs to let us know whether a cloud of suspicion remains over DENR. Has Duke been cleared of more serious wrongdoing? What felony was suspected a year ago? Why are today's criminal counts only misdemeanors?
"We are accountable for what happened on the Dan River and we learned from this event," said a statement from Duke CEO Lynn Good on Friday.
Really? Recent arrangements to move coal ash to pits in Lee and Chatham counties involve hushed-up contracts that kept local officials in the dark. Announced details were misleading about the size, method and appearance of the dumps.
Judge for yourself: Will this pricey slap on the wrist make Duke take its responsibilities seriously?
