DENR rejects Duke's coal ash plan, amid accusations of leniency

jmurawski@newsobserver.comMarch 13, 2014 

  • Democrats plan coal-ash legislation

    Democrats on Thursday previewed a coal-ash bill they will introduce in the short session that begins in May.

    The proposal echoes some of the public sentiment that has surfaced since the Feb. 2 spill into the Dan River in Rockingham County, such as closing all coal ash ponds and making the utility – not ratepayers – pick up the cost.

    Sen. Mike Woodard, a Durham Democrat who represents an area in Caswell County where the Dan River crosses, expressed optimism that the bill in some form could pick up bipartisan support.

    The bill would:

    • Require Duke Energy to close and move all of its 33 coal-ash ponds at 14 plants into safe, lined and dry storage away from water sources. It would specify that Duke’s proposal to only cap the ponds is insufficient.

    • Direct Duke Energy to provide a cleanup plan for the Dan River spill, which the state has already ordered it to do.

    • Direct Duke to pay for the cost of cleanup at all of its plants, and not pass that cost along to ratepayers.

    • Prohibit putting any additional ash into the coal-ash ponds.

    • Establish standards for closing the ponds, including monitoring them.

    • Establish standards for new utility-owned lined landfills.

    • Repeal a provision in last year’s regulatory overhaul bill (H.B. 74) that allowed companies to have contaminated groundwater up to their property line, however large that might be. The new bill would set the testing boundary at 500 feet. It also limits DENR’s authority to contain contamination at waste disposal facilities.

    • Restore funding to DENR at a level allowing adequate monitoring of coal-ash sites.

    • Direct the Environmental Review Commission to study the safety of using coal ash in fill dirt in construction sites, road beds, agricultural fields and other manufactured products.

    Staff writer Craig Jarvis

An advocacy group on Thursday stepped up its efforts to portray the state’s environmental regulators as too close to Duke Energy. At the same time, a public rift between the agency and the utility widened.

The N.C. Department of Environment and Natural Resources rejected Duke’s long-term plan for cleaning up its 33 ash ponds at 14 plants. The agency had given the company until Saturday to present a plan to remove and store coal ash in the wake of the Feb. 2 massive spill of the material into the Dan River.

Instead, Duke submitted a four-page letter lacking in details – only one page addressed its “comprehensive coal ash plan” – which drew a blunt rebuke from DENR Secretary John Skvarla, who called the report “inadequate.”

Also on Thursday, Duke asked a Wake County Superior Court judge to delay for 30 days an order that could force the company to immediately clean up all of its ponds. Duke is considering whether to appeal.

DENR and Gov. Pat McCrory, who worked for Duke Energy for 29 years, have staked out increasingly strident stances against the utility in the wake of the spill. But environmentalists continue to argue that the agency is too cozy with the utility. A federal criminal investigation is looking into that relationship.

A fight between DENR and the Southern Environmental Law Center has been going on since last year, when the organization gave notice it intended to sue the company over its coal-ash ponds. That prompted the agency to file its own lawsuits in order to control the outcome of the litigation.

On Thursday, the law group released selected emails that it contends show DENR and Duke conspired to resolve the lawsuits to the utility’s advantage.

The emails, written in 2013, were exchanged by a deputy attorney general, DENR officials, a Duke Energy attorney and the company’s lobbyists.

A spokesman for DENR disputed the organization’s interpretation of the messages, saying the law group showed “a reckless disregard for facts.”

“Some, it’s fair to say, are mischaracterized, to put it mildly,” DENR Communications Director Drew Elliot said. “Some are ridiculous when put into context.”

Amy Adams, a former DENR regional office supervisor, reviewed the excerpts on Thursday and said such back-and-forth exchanges are standard procedure in negotiations between the agency and regulated companies, and don’t suggest an improper relationship.

Adams resigned from DENR last year in protest against the new business-friendly policies adopted by Republican officials, and she now works for an environmental advocacy group.

“A lot of this happens very regularly,” she said. “Everything is under negotiation when you have violations.”

Duke got what it wanted

Still, the emails suggest that Duke was getting what it wanted.

In May 2013, a Duke attorney emailed a proposal that small seepages of wastewater at coal ash plants that were not covered by state-issued permits be given retroactive amnesty, rather than being subject to enforcement action. That suggestion ended up in the final proposed settlement.

Another email shows Duke’s lobbyist and DENR’s general counsel, Lacy Presnell, had a meeting arranged in February 2013 soon after the SELC filed its first 60-day notice of intent to sue. By the end of March, Duke’s attorney indicated the company wanted to work out a settlement.

In one email, Duke and the state’s attorneys discuss how to limit the participation of the Southern Environmental Law Center. The organization had threatened to sue Duke Energy over the 14 coal ash plants the utility owns in North Carolina. But DENR pre-empted the organization by filing its own legal actions, giving it control of the case.

“These emails show what we suspected, which is very soon after our threat of litigation, Duke and DENR were talking about how they could work together to resolve this without the participation of the citizens who started the litigation,” SELC attorney D.J. Gerken said Thursday.

Gerken said the emails set a tone for what followed: a proposed settlement that didn’t require the company to clean up its ponds and only imposed a minor fine.

“This was never an enforcement case for DENR,” Gerken said. “This was a procedural gambit.”

Duke plan lacking detail

The emails surfaced the day after Duke submitted a general overview of its coal ash storage strategy. On Thursday, DENR rejected the power company’s letter and directed Duke to try again.

DENR had given Duke until Saturday to provide detailed plans, including cost estimates, for upgrading the safety of its coal ash pits. In more than half those pits, the ash is soaking in lagoons that are seeping heavy metals and other contaminants into groundwater below.

“There are far too many questions unanswered,” Skvarla said in a statement. “Duke Energy should provide the information we originally requested.”

Duke spokeswoman Erin Culbert said the company doesn’t plan to submit additional information by Saturday’s deadline. Instead, Duke officials want to meet with DENR officials to discuss the matter, according to the letter written by Duke CEO Lynn Good.

“Cost estimates … are very dependent upon the actual disposal methods,” Good wrote, “and we will work with the state to make estimates available as we narrow the range of options at each particular site.”

Duke’s letter contains general information, such as Duke’s history of providing low-cost electricity and a recap of recent events in the Dan River spill.

‘Risk-informed’ analysis

The company’s “comprehensive ash basin plan” takes up all of one single-spaced page.

In that summary, Duke said it plans to remove ash from three sites – Dan River, Riverbend and Asheville – and place the waste into modern, lined landfills where it will be stored in dry form. Riverbend will take the longest to complete, up to 4-1/2 years.

The company has not decided what to do with its other 11 sites, whether the ash will be dug out and moved to lined landfills or whether it will be dried, capped and stored in existing ash pits.

Duke also said it would use a “risk-informed” analysis, which means that the 14 ash storage sites will be scored on their potential environmental risk, and those with lower scores will be subject to less costly measures.

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

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