BreakDown: Danville’s Coal Ash Settlement

At a special work session before Tuesday night’s Danville City Council business meeting, council agreed to a $2.4 million settlement with Duke Energy for the February 2014 coal ash spill. Let’s look into the details that have and haven’t been talked about. Let’s look at what really happened on Tuesday.

Let’s do a BreakDown.

The actual settlement is still attorney-client privileged until Duke Energy signs off on it. That should happen within a week. That being said, I know what the main components are of the deal so let’s bring out a BreakDown Big Board.

• I knew something was up for tonight’s special work session because the word was out that all councilmen were strongly asked to be at the meeting. I floated up a “Is this about the coal ash settlement?” trial balloon and it wasn’t shot down, so I was sure of what was going to be discussed.
• We’ve only had one or two editions of “The Davis Montgomery Show” so far this year. The Duke Energy district manager used to come at least once a month to update the council on what was going on. He was deferential to council’s comments and questions to begin with but as the months progressed, he got more of a “Yeah. So?” back to some of the more heated debate (especially to Gary Miller). That was always fun to watch.
• The longer it took to get anything done on the settlement, the more I realized that Duke Energy was in no hurry to make a settlement because they knew that their potential liability was going to be hard to prove if a lawsuit ever went to trial.
• City Council came out of their closed special work session about 6:40 PM and everyone was smiling. This settlement had been negotiated in advance and I strongly believe that council was told “Take it while the offer’s still on the table.”
• I picked up that something was going to be added to the agenda tonight. I asked Mayor Sherman Saunders if he had any comment and he said “Oh no.” Sherman Saunders doesn’t lie very well. That’s when I knew that the fix was in and this settlement was going to be voted on.
• This is the second meeting in a row where something has been added to the agenda at the last moment. That’s not a good practice, especially when it’s done so quickly that the public has no idea what’s going on. “Motion to add Item P to the agenda” is probably acceptable under parliamentary procedure, but it sucks when the public doesn’t know what Item P is, hasn’t seen Item P to form an opinion on it, and has no chance to talk about Item P to their elected officials before they vote.
• The next time this sort of thing comes up, Danville City Council has an obligation to clearly stop and tell the public what is being added to the agenda just as a matter of record.
• Back to the coal ash settlement, it’s read and passed so quickly that a lot of people in the gallery had no idea what the hell had just happened. When I pushed out the breaking news, one normally very observant person asked me “When did they do that?” I had to answer “About 10 minutes ago.” Yeah, that’s a problem that needs fixing.
• Even though the official settlement is not available yet, council members and staff were very glad to talk about what’s in the deal. That was a good surprise.

Now let’s get to the deal.

• The settlement is for $2.4 million. That’s going to be broken down into $1.1 million for river-related projects & $1.3 million for “anything the city wants”.
• Not so fast, my friends. The legal fees for hired gun environmental lawyer Charlie Williams and his group have to be paid out of that. There’s no official word of how much that is, but a big name environmental lawyer who’s been working for over two years isn’t going to cost $295 at the Legal Hut in the mall.
• This settlement doesn’t count the improvements that Duke Energy is making to Abreu-Grogan Park nor the money Duke Energy has already paid Danville for clean-up reimbursements. That’s items as varied as water testing costs and lost income from canoe/kayak rentals.
• The “river-related projects” part of the settlement will probably go to Riverwalk trail expansion and construction of a small amphitheater park in the old White Mill parking lot. And no, nothing as big & fancy as the Carrington Pavilion. We’re talking a slightly larger place than Main Street Plaza.
• You’ll notice the convergence of all of these plans over the past and in the next few months is timed pretty good with the coal ash settlement. That’s not a coincidence. I don’t believe in coincidences for things like that. Heh.
• The city could have gotten a lot more than $2,400,000 had this lawsuit eventually went to trial. That’s true.
• The city could have gotten $0.00 had this lawsuit eventually went to trial. That’s also true.
• It could have easily taken 3 to 5 years for a lawsuit like this to finally enter the trial phase. In that meantime, Danville’s legal bills would keep ringing up. If the city lost the case at trial, there would be big legal expenses to pay. As well as hell to pay from the citizens.
• Duke Energy has the money to hire Lots-O-Lawyers who can use Lots-O-Delay Tactics to make sure that Danville’s legal expenses keep going up. Duke Energy would also fight like hell to destroy the city at trial to set a precedent to show anybody else that “it ain’t gonna be worth it”.
• To win at trial, Danville would have to prove actual damages. Face it, the coal ash spill didn’t cause any real environmental damages to the city. The city might have a case where reputation was lost, but that would not be a slam-dunk in court. Especially 5 years later than now. Do you remember what mean ol’ name that was yelled at you on the highway 7 years ago? Me neither.
• Hey, where’s Pittsylvania County’s settlement against Duke Energy? How much are they going to get out of this? Considering that the county had no provable damages, I’ll say: Zip. Zero. Nicht. Nada. Nil. Not a damn thing. The Big Squadoosh. $0
• Finally, I’d like to point to the calendar and say that city council election are just two weeks away! My, what opportune timing to get rid of this albatross and collect cash for the city! Wow! What a coincidence! Didn’t see that one coming. Heh.

And there you go… a bunch of assorted facts and observations from the coal ash settlement process.

The $2.4 million dollars might not sound like a lot of money, but city council made the right decision in taking the sure thing instead of what’s behind Courtroom Curtain #2 on the trading floor. Duke Energy was not displeased in working to this settlement because $2.4 million is diddlysquat to the utility in the long run. In the end, we’re all winners. Or something like that.

My goodness. That was an almost 1200 word BreakDown article, but that’s how we do it here at SouthsideCentral. Thanks for all the support, folks. We truly appreciate it.