DENR head defends agency over pollution enforcement as federal probe widens

cjarvis@newsobserver.com ablythe@newsobserver.comFebruary 19, 2014 

  • River life threatened

    In addition to the common aquatic life, federal authorities say three more fragile species could be threatened by the spill.

    • The Roanoke logperch is a federally listed endangered species. It ranges from 5 to 5½ inches long, lives on stream bottoms and feeds on insect larvae it finds by flipping stones with its snout. It relies on loosely embedded, silt-free, gravel surfaces.

    • The James spinymussel is also federally designated as endangered. It’s one of three species of freshwater mussel in the United States that has spines on its shell. It grows to about 3 inches in length. It feeds on bacteria, algae and other small food, and helps clean the water through a filtering process. It reproduces through a connection with a host fish, and so depends on a clean habitat to support that fish.

    • The green floater is under evaluation to determine whether it warrants federal protection. It grows to about 2½ inches long and is usually found in silt-free, sandy, gravelly areas.

    Inside the stormwater pipe

    DENR on Tuesday posted online the video inspection of the pipe at http://alturl.com/yx5zq.

  • Duke: Customers won’t pay for cleanup

    Duke Energy CEO Lynn Good said Tuesday that Duke won’t pass along the cleanup costs to its customers.

    “We will analyze the financial implications, we’ll work with our insurers, and we will be accountable for this,” she said.

    It’s not clear what the Dan River costs will be. The Tennessee Valley Authority is still cleaning up from a much larger 2008 spill and has so far spent $1.2 billion.

    Bruce Henderson, The Charlotte Observer

— While criticism from environmental advocates and a widening federal criminal investigation swirled around him, N.C. Environment and Natural Resources Secretary John Skvarla on Wednesday defended how his agency has handled the threat of pollution from coal ash at Duke Energy power plants around the state.

Even as Skvarla spoke at the department’s headquarters in Raleigh, his staff was busy complying with a new round of subpoenas they received Tuesday and disclosed Wednesday demanding 18 current and former employees appear before a federal grand jury in Raleigh next month. Those subpoenaed are required to bring any records they have of payments or items of value they might have made or received from Duke Energy or its predecessor company, Progress Energy or Carolina Power & Light.

The subpoenas also order the department to produce the personnel files of those employees, most of whom have jobs related to the regulation and oversight of water quality.

The personnel file of Tom Reeder, director of the Division of Water Resources, has also been subpoenaed, along with that of Amy Adams, a former DENR employee who is the state campaign coordinator for Appalachian Voices, a conservation group based in Boone. Neither Reeder nor Adams have been subpoenaed.

Skvarla has not been subpoenaed, according to the department. Adams, who worked at DENR from 2004 to 2013, most recently as regional supervisor for the Washington, N.C. office, issued a statement.

“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.”

Additional subpoenas demand records pertaining to seepage reports at the 14 sites where coal ash is stored in 32 ponds from active and inactive Duke Energy plants. Last week, records of correspondence between Duke Energy and DENR were subpoenaed.

A DENR spokesman said the agency would cooperate with the federal investigation. Skvarla declined to comment on the subpoenas or any part of the investigation at his briefing for the news media on the regulation of coal-ash reserves.

The briefing followed criticism from environmental groups and scrutiny by the news media about how well the state has regulated Duke Energy. Up to 39,000 tons of ash has poured into the Dan River along the North Carolina-Virginia border since the spill on Feb. 2. The spill poses no immediate health threat but is endangering aquatic life.

With three division directors at his side, Skvarla disputed a claim by environmental groups that the agency only sued the power company last year so it could engineer a quick settlement that amounted to no more than a monetary slap on the wrist.

‘It’s not that simple’

Skvarla alternately portrayed environmental advocates as partners sharing a goal of cleaning up pollution and protecting the environment, and as intractable opponents. He said his agency and the environmentalists didn’t agree on much.

“It had become very clear … their desired outcome was what I call one size fits all,” Skvarla said. “The only acceptable remedy was dig them (the coal-ash ponds) up, move them to lined landfills and cover them. … I can assure you it’s not that simple.”

He said there is a scientific dispute about what to do with the sites. Skvarla and other officials said they can’t just go in and close down a potential polluter without following a legal process, unless there is an immediate threat.

DENR and Duke Energy’s settlement of the four lawsuits the agency filed over the coal-ash ponds included a $99,111 fine, with the threat of a fine of $1,000 a day for the first month and $5,000 a day after that if the company failed to take agreed-upon steps at two plants subject to the proposed settlement. That settlement is on hold while a statewide review of the problem is undertaken.

Skvarla said the settlement was aimed at getting the facilities cleaned up quickly rather than drag out in court, and that the state is not permitted to take into account the company’s wealth. He said it would be the first time North Carolina has fined Duke Energy over coal ash.

Skvarla said environmental groups that eventually intervened in the case were included in discussions with the attorney general’s office and Duke Energy attorneys as the case progressed.

“Any accusation, any allegation that DENR and Duke got together and made some smoky, backroom deal with a nominal fine is just not true,” Skvarla said.

Lawsuits filed

DENR last year filed the lawsuits after the Southern Environmental Law Center gave notice it was going to sue under the federal Clean Water Act. The lawsuits say 14 separate Duke Energy facilities in North Carolina are releasing arsenic and other toxic chemicals into groundwater, as well as seeping contaminated water above ground into waterways.

The pending settlement only affected two plants, because those were in the first lawsuits filed, and it called for further assessments but did not require the pollution be stopped immediately. Environmentalists contend there is an immediate threat from the coal-ash ponds, and point to DENR’s own lawsuits, which say the coal ash poses “a serious danger” to public health and to the environment.

Sides disagree

DENR and the environmentalists disagree over the agency’s intentions. The advocates contend DENR wouldn’t have sued if they hadn’t forced the agency’s hand. Skvarla said the agency would have sued anyway. He said he didn’t find out about the coal-ash issue until shortly after taking office in January 2013.

“There was no scintilla of a doubt what we were going to do,” he said. “We never hesitated. We did what we were supposed to do. If they had simply come to me and said we intend to do this, we would have taken charge. It didn’t require a letter of intent to sue.”

The Southern Environmental Law Center disputed much of what Skvarla had to say, and it cited several instances of conservationists having alerted state regulators to the dangers of coal ash since 2011.

Last October, DENR ordered Duke Energy to supply residents of Arden, near Asheville, with alternative drinking water after tests showed a home’s private well was contaminated. The home is near the company’s coal-ash storage facility, where a number of private wells had also shown contamination. In November, the company agreed to pay up to $1.8 million for a new water line to serve a community near Wilmington because of coal ash pollution.

“It is way, way past time that DENR and Duke Energy get past responding to this criminal grand jury investigation and start cleaning up Duke Energy’s illegal and dangerous coal-ash pollution throughout North Carolina, so that we do not have another Dan River disaster,” SELC attorney Frank Holleman said.

Cassie Gavin, director of governmental relations for the state chapter of the Sierra Club, issued a statement after Skvarla’s briefing.

“Noticeably lacking in today’s press conference was any stated commitment by the administration to remove coal ash from unlined lagoons next to our waterways,” she said. “The coal ash spill on the Dan River was completely foreseeable and preventable. … The public pays the price for the government’s failure to act.”

Staff writer John Murawski contributed.

Jarvis: 919-829-4576; Twitter: @CraigJ_NandO

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