Cooper doesn’t heed McCrory’s coal-ash advice; calls on EPA

Posted by Craig Jarvis on March 23, 2014 

Attorney General Roy Cooper isn’t heeding the governor’s advice to butt out of the coal-ash controversy.

Cooper has asked the U.S. Environmental Protection Agency to help North Carolina ensure the coal ash lagoons are secured using the latest technologies.

On Thursday, Cooper wrote to the regional administrator for the EPA, calling on the agency to learn from the Feb. 2 Dan River spill and come up with rules to make sure it doesn’t happen again.

“The resources of this state cannot be allowed to be irreparably damaged by such slow leaks and sudden breaches that can and should be prevented,” Cooper wrote, copying his letter to the governor and to DENR Secretary John Skvarla.

The letter was made public on Friday. Later that day, DENR announced that Skvarla had already written the EPA regional administrator, Heather McTeer Toney – an appointee of President Barack Obama who has been on the job since January – in a letter dated March 14, asking the EPA to join with DENR in pursuing the coal ash cleanup. Toney, in a reply dated March 17, agreed.

A few weeks ago, Cooper – a likely candidate for governor in 2016 – said he would fight Duke Energy if it tried to charge its customers for cleaning up its coal ash lagoons around the state, as the utility’s CEO said it would.

Gov. Pat McCrory responded that politics shouldn’t be part of the process by which the N.C. Utilities Commission decides on a rate increase. The governor also said it was inappropriate for Cooper’s office to comment. The state justice department is providing legal counsel to the state Department of Environment and Natural Resources, and is assisting federal authorities in a criminal grand jury investigation.

Update: It’s worth noting the governor’s office has hired outside counsel to help DENR deal with the grand jury subpoenas and related issues, since the State Bureau of Investigation environmental crimes unit is involved in the federal probe. Bob Stephens, the governor’s chief counsel, wrote in a letter to Cooper’s office last week that Cooper has further complicated matters by soliciting campaign contributions by referring to the Dan River spill.

Cooper’s office has an environmental law section that provides legal counsel for the state environmental agency. In fact, in 2009 an assistant attorney general wrote an advisory memo supporting a recent interpretation of the state’s groundwater pollution rules.

The lawyer advised that the state wasn’t required to force an immediate halt to the source of groundwater pollution, but could craft alternatives. That formed the basis of DENR’s controversial “sweetheart deal” with Duke that imposed a $99,000 fine and didn’t require the utility move and isolate its coal ash ponds.

Then on March 6, a Superior Court judge ruled that interpretation was in error. As a result DENR on Friday withdrew its proposed settlement.

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