The Coal Ash Project

Poisoned Power

Part III:
Bad Science, Shady Politics:
Duke's and McCrory's 'Belt and Suspenders' Strategy?

Potent as it is, bad science alone can't protect Duke Energy from the prospect of billions of dollars of coal ash cleanup costs – provided state regulators do their jobs.

North Carolina’s Secretary of the Dept. of Environmental Quality is the state’s top pollution watchdog. But Donald van der Vaart, an obscure middle manager at DEQ elevated by Gov. McCrory to the Secretary’s post, has in his short time on the job proven to be more of a champion for high-flying polluters than an overseer. Previously an employee of Carolina Power & Light (now a Duke Energy subsidiary), Secretary van der Vaart has championed offshore oil drilling while opposing offshore wind farms, has denounced EPA’s greenhouse gas regulations as "a federal takeover of our electricity system," and has called for tighter restrictions on solar energy while arguing for expanded business incentives for nuclear power.

Republican State Representative Mike Hager – another former Duke Energy employee – says approvingly of van der Vaart: "He sees how environmental regulations impact business."

As Secretary, business-friendly van der Vaart signed off on DEQ’s successful effort to rescind the state’s do-not-drink orders. But his power to use Duke’s own bad science to protect the company’s interests extends even farther, thanks to the central role North Carolina law assigns the Secretary in the critical regulatory decision-making which will ultimately determine the extent of Duke Energy's coal ash cleanup.

Disappearing Risks

The Secretary’s goodwill could be a valuable asset indeed for Duke in its current struggle to win the lowest possible risk classifications for its coal ash dumps. The company has suggested that dumps ultimately designated ‘high risk’ by the state could cost $1 billion each to remediate, whereas ‘low risk’ classifications - and the simple cap-in-place remediation strategy those classifications would permit - would likely cost the company many times less.

Last December, the Southern Environmental Law Center exposed an internal DEQ document in which the Department’s professional technical staff offered their recommendations to the Secretary regarding the public health risk levels posed by each of Duke’s ash dumps across the state. In it, staffers rated the majority of those 13 ash basins “high risk” and judged only a single site “low risk.” But remarkably, when Secretary van der Vaart issued his own CAMA-mandated risk ratings the following month, his staffers’ “high risk” ratings were nowhere to be found, downgraded to “Intermediate” or “Low-to-Intermediate” classifications (Table II, below). In total, 11 of staff experts’ 13 risk recommendations were ignored by the Department’s political leadership - presenting Duke with the gift of potentially billions of dollars in cleanup cost savings.

Secretary van der Vaart’s only public comment regarding the disparity between his technologists’ risk classifications and his own official pronouncement was "I am disappointed that special interest groups attempted to corrupt the [risk classification] process by leaking an early draft that was based on incomplete data."

Coal Ash's Ominous New Black Cloud

As our investigation neared completion last month, this already remarkable story of political intrigue layered over with bad science took its most bizarre turn yet - one which no one (with the possible exception of Gov. McCrory and Duke Energy) could have seen coming.

As laid out in the Coal Ash Management Act, Secretary van der Vaart’s risk classifications would not be the final word in the matter. For that, the law created an independent Coal Ash Management Commission (CAMC) to receive the Secretary’s risk recommendations, review them (along with Duke’s supporting data) with outside experts of the Commission’s choosing, and pass final judgment regarding the extent of cleanup required at each site. As one state legislator explained to us on background regarding the rationale behind this additional level of review built into the law: “At the time the coal ash bill was written, the legislature didn't believe that the Department of Environmental Quality was trustworthy.”

But the law’s charter for the Coal Ash Management Commission proved to contain a flaw – one which Gov. McCrory now appears intent upon using to wrestle final authority over cleanup decisions for his own trusted political appointee, Secretary van der Vaart.

In November of 2014, shortly after CAMA became law without McCrory’s signature, the governor filed suit in Superior Court (McCrory v. Berger) challenging the constitutionality of the law’s provision of an independent Coal Ash Management Commission. Four months later the court ruled in McCrory’s favor, and that lower court decision was in turn upheld by the state Supreme Court in January of this year. But that Supreme Court decision specifically left open a path to a simple legislative remedy of the law’s unconstitutional provision - a fix which would preserve the proposed commission’s oversight of an "untrustworthy" Department of Environmental Quality.

But McCrory proved to have a different, and even simpler, remedy in mind. Moving swiftly following the Supreme Court’s decision, and without public announcement, the governor simply disbanded the commission by his personal decree. As the Charlotte Observer reported:

A staff email Monday to legislative leaders quoted the [Coal Ash Management] Commission’s executive director, Natalie Birdwell, as saying "she had just been informed by the Governor’s Office that the Commission was no longer a legal entity."

"The North Carolina Supreme Court made it clear that the commission is an unconstitutional body that cannot take any action," the Department of Environmental Quality said in a statement that the department said also represented the governor’s office. "However, there will be absolutely no change in the Department of Environmental Quality's implementation of the Coal Ash Management Act."

[Representative Chuck] McGrady said Thursday, "I view the governor’s position as basically saying...DEQ is completely capable of handling the matter and we don’t need this overview."

State legislators we interviewed on background for this report view McCrory’s unexpected dash to disband, rather than to reconstitute, the commission as a power play to snatch control of decision-making under CAMA away from a body of citizen-commissioners - who might prove too independent-minded for the governor’s taste - and confer it instead on his Department of Environmental Quality, stacked with Duke-friendly political appointees who are reliable McCrory allies.

But as this report goes to press, legislators have yet to summon the will to formulate a plan to respond to McCrory’s coup d'état. As one legislator explained to us:

The Governor won the court battle, and now the Legislature has to decide whether to continue the fight or not. Leaving coal ash cleanup to DEQ would be the path of least resistance. But will the legislature keep its hands out of that pot? Certainly the pattern of the last few years would suggest otherwise. That said, I have not heard how this is likely to be addressed when we get back into session [in April].

In this battle royal pitting bad science and even worse governance against public health, with billions of dollars (and perhaps McCrory’s re-election bid in November) at stake, North Carolinians should continue to expect the unexpected.

And they should probably stock up on bottled water, too.

     Part I: Coal Ash - North Carolina's Invisible Disaster
     Part II: How Trustworthy Are Duke's Self-Assessments? An insightus investigation
     Part III: Bad Science, Shady Politics: Duke's and McCrory's 'Belt and Suspenders' Strategy?

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North Carolina's public comment period for coal ash remediation plans ends April 18, 2016. Alarmed by Duke's bad science outlined here? Let state officials know at

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