NC regulators defend their policing of Duke Energy

bhenderson@charlotteobserver.comFebruary 19, 2014 

North Carolina’s top environmental regulator defended his oversight of Duke Energy Wednesday as a criminal probe of the Dan River ash spill sought answers from his staff.

Subpoenas released Wednesday order 18 state water-quality officials to appear next month before a federal grand jury in Raleigh. They’re to report not only communications going back to 2009 but any payments and gifts from Duke.

The N.C. Department of Environment and Natural Resources itself got a subpoena Tuesday for ash-related records for all 14 of Duke’s active and retired coal-fired plants in the state. Duke said it too received a subpoena Wednesday but would not describe it.

Those demands suggest a broadening focus of the grand jury’s investigation of a “suspected felony.” A subpoena to DENR last week focused solely on the retired Dan River power plant in Eden, where the Feb. 2 ash spill occurred.

Against that backdrop, Environment Secretary John Skvarla hosted a press conference to defend his department from claims it’s too cozy with Duke in regulating ash contamination.

Skvarla was appointed by Gov. Pat McCrory in December 2012. DENR filed four lawsuits against Duke last year, over groundwater contamination and illegal seepage from ash-pond dams, but only after environmental groups filed notice they would sue Duke.

Skvarla said Wednesday that the department wanted to address ash contamination without spending years fighting Duke in court.

“Any implication or allegation that DENR and Duke Energy got together to make some smoky, backroom deal for a nominal fine is just nonsense,” he said. “We are taking what could be a 12- to 15-year (litigation) process and compress it to what might be a five- to six-year process.”

Duke said it couldn’t comment on the subpoenas or Skvarla’s comments.

The federal Clean Water Act allows so-called citizen suits against polluters, but only if state or federal regulators haven’t done so.

The Southern Environmental Law Center, which represents advocacy groups aligned against Duke, says the state lawsuits blocked the groups from filing their own litigation – with potentially harsher results for Duke.

DENR proposed a legal settlement with Duke, over its Riverbend power plant west of Charlotte and Asheville plant, that called for a $99,000 fine and continued analysis of contamination. Nearly 5,000 public comments disparaged the proposal as too lenient. DENR asked last week that it be sidelined.

The law center had earlier filed notices its clients would sue two South Carolina utilities over similar issues. South Carolina’s environment agency, in contrast to North Carolina’s, did not file its own lawsuits within the required 60 days.

Those utilities, S.C. Electric & Gas and Santee Cooper, ultimately agreed in settlements to remove their ash from retired ponds and haul it to lined landfills – which is also the law center’s goal for the Duke plants.

Skvarla said that “one-size-fits-all” approach oversimplifies a complex undertaking at 14 Duke sites statewide.

“No one has the right to make a dictatorial demand that you do something,” he said.

Lawsuits defended

But Skvarla insisted DENR and the law center are “on the same side of the table” in their concern over Duke’s ash. The state lawsuits, he said, were not an effort to block citizen suits.

“I will say it prompted us to move immediately because we had only 60 days” to take action, he said. “We slid in under the tag, but we did what we’re supposed to do.”

The Southern Environmental Law Center does not regard DENR as its partner, rebutting Skvarla on numerous points. DENR still has not provided documents, the law center said, that it requested about negotiations with Duke over the now-proposed Riverbend settlement.

Another conflict point deals with the state’s authority to order immediate cleanup action by polluters.

Tom Reeder, director of the N.C. Division of Water Resources, said state rules dictate a process – assessing environmental damage and how to fix it – before the agency can issue such orders.

The law center, in response, cited a recent state Environmental Management Commission ruling on groundwater contamination. The EMC said corrective action, including removal or control of pollution sources, is required “prior to or concurrent with the assessment.”

Subpoenas seek documents

The grand jury’s subpoena of DENR on Tuesday demanded documents related to wastewater discharge permits, enforcement actions, sampling results and the four lawsuits the state filed against Duke last year over its ash handling.

The 18 current or former water-quality officials subpoenaed last week – DENR revealed them Wednesday – work in DENR’s Raleigh headquarters as well as in seven regional offices.

DENR was also subpoenaed to supply personnel records for those officials and two more people: Reeder, the water-resources chief, and Amy Adams, a former regional supervisor who is now an official of the Boone-based advocacy group Appalachian Voices. The group campaigns for stronger coal-ash regulation.

“I'm glad the U.S. Attorney’s office is casting a wide net in this investigation to ensure the citizens of North Carolina and Virginia learn the truth about this coal ash disaster,” Adams said in a statement. “I’m glad to help in whatever way I can to bring out the truth, and I look forward to speaking with the federal investigators.”

U.S. Attorney Thomas Walker, who represents Eastern North Carolina, would not confirm or deny the existence of an investigation.

Henderson: 704-358-5051; Twitter: @bhender

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