The N.C. Department of Environmental Quality’s decision to settle a $25.1 million fine against Duke Energy for $7 million triggered a war of words between the state agency and environmental advocates who are fighting the settlement in court.
DEQ and the Southern Environmental Law Center fired off letters-to-the-editor in the N&O in an ongoing dispute over who’s to blame for the state’s coal ash contamination. Both sides agree on one thing: Groundwater at 14 Duke sites where the toxic waste has been stored for decades is contaminated by arsenic, thallium, selenium and other heavy metals.
DEQ’s assistant secretary, Tom Reeder, blames the agency when it was controlled by Democrats, for years of inaction before Republican Pat McCrory became governor in 2013. Reeder says a 2011 policy under Gov. Bev Perdue encouraged cooperation and compliance by industry over penalties by regulators.
SELC lawyer Derb Carter countered that DEQ’s policies haven’t changed. Carter charged that DEQ’s September settlement essentially grants Duke amnesty by preventing any future enforcement of coal ash violations.
Here’s a closer look at the claims and counterclaims.
When was the agency first criticized? The Southern Environmental Law Center filed the first of many citizen lawsuits over coal ash contamination in October 2012. Such lawsuits are filed by private groups when citizens believe regulators have failed to enforce environmental laws. At the time, SELC was frustrated with the Department of Environment and Natural Resources , as the agency was then known when Gov. Perdue was still in office, for not forcing electric utilities to shut down their coal ash facilities and clean them up.
How do agency employees from that time respond? “When it came to coal ash, I think it was a blind spot,” acknowledged Amy Adams, a 9-year agency employee who left in 2013 and joined the nonprofit Appalachian Voices as campaign coordinator. “There wasn’t the plethora of data that we have today.”
Robin Smith, the agency’s assistant secretary for the environment until December 2012, said the state’s coal ash pits were subject to almost no oversight for decades. Proposed state legislation to create a comprehensive oversight program got nowhere in 2009, she noted.
But in the wake of a massive coal ash spill in late 2008 in Tennessee, North Carolina lawmakers did eliminate an exemption for coal ash pits that had prevented state dam inspections at the ash facilities.
The agency also began requiring Charlotte-based Duke Energy and Raleigh-based Progress Energy to start groundwater monitoring in 2009 at its coal ash impoundments, Smith said. But it would take several years to accumulate enough data to start understanding the extent of groundwater contamination.
Who else has criticized state regulators? The Dan River spill in February 2014 released 39,000 tons of toxic sludge into the Dan River, unleashing a torrent of criticism against state regulators – from lawmakers, judges, prosecutors, and even from Duke Energy. The industrial accident exposed a raft of problems with coal ash pits, including seeps, leaks and illegal discharges.
Why were lawmakers critical? In 2014, the state legislature passed the comprehensive Coal Ash Management Act, mandating the closure of 33 coal ash pits at 14 sites by 2029, the first law of its kind in the nation. The act created the Coal Ash Management Commission to oversee the closure of the sites. Several state lawmakers at the time said they created a commission because they lacked confidence in DENR to oversee the tasks.
Prosecutorial concerns. Concerns were so prevalent that last year a federal grand jury investigated the state agency as part of an inquiry into Duke Energy. The federal probe ultimately resulted in charges against the utility, but not against the state agency.
Environmentalist concerns. Environmentalists have consistently said that state regulators weren’t doing their jobs.
In a May hearing at the Wake County Superior Court, a lawyer for the Southern Environmental Law Center slammed DEQ for trying to halt its own coal ash lawsuits against Duke Energy.
“This four corners offense, this slowdown, foot-dragging that we’ve dealt with,” said SELC lawyer Frank Holleman III, “this is something the public is no longer willing to tolerate.”
DEQ lawyers countered that they were now bound by the protocol set out in the Coal Ash Management Act, which requires prioritizing cleanups, public hearings, economic assessments and other steps.
Duke Energy takes a swipe at regulators. In the same courthouse in September, Duke Energy lawyer James Cooney expressed disbelief that the agency objected to Duke’s plans to excavate coal ash at three power plants near rivers and in flood plains.
“This is an instance ... where DENR is essentially asking for less to be done,” Cooney said. “Every time we run into this kind of objection, it delays us in removing the ash.”
The agency again insisted that it’s bound to follow procedures set out in the new law, not bless private deals between Duke and the SELC.
Judicial concerns. Federal judge Loretta Briggs on Oct. 20 refused to dismiss SELC’s lawsuit against Duke, which had been filed on behalf of Yadkin Riverkeeper and Waterkeeper Alliance. The U.S. judge, based in Winston-Salem, said citizen lawsuits will stay on track as long as state regulators fail to act.
“DENR appears to have done little, if anything, to move the case forward,” Briggs wrote. “It had not taken depositions, it had not filed motions, and an initial case management order was not yet in place, one year into litigation.”
“Further,” the judge noted in reference to the Wake County Superior Court lawsuit, “DENR has now moved to stay its own enforcement action.”
Agency frustration. As coal ash became increasingly politicized, Tom Reeder, DEQ’s assistant secretary for environment, blasted the agency’s former overseers under Democratic Governors Bev Perdue and Mike Easley for failing to act.
“They didn’t do a damn thing, that’s what they did,” Reeder told Duke’s lawyers in a June court deposition, saying the risks of coal ash were known to utility engineers for years.
“I’m just completely dumbfounded that nobody ever did anything about it,” Reeder said. “Everybody had to know the extent of the harm that they were doing. And why nobody would do anything about it – it’s just beyond my comprehension.”
DEQ officials say they are far more aggressive about monitoring coal ash today than at any time in the past. In recent months, for example, DEQ staff has overseen inspections of all dams at coal ash impoundments and required repairs of leaks. DEQ staff has inspected storm water and waste water piping with the aid of video cameras.
“Our progress should not be overlooked and shows how rigorously we’ve been working to make-up for the inaction of the previous administrations,” said DEQ spokeswoman Crystal Feldman.
Staff writer Anne Blythe contributed