New Emails Suggest Coal Ash Polluter Helped State Regulator During Investigation

Mar 14, 2014 by

Think Progress


By Jeff Spross on March 14, 2014 at 4:10 pm


Amy Adams, North Carolina campaign coordinator with Appalachian Voices, dips her hand into the coal ash spill in the Dan River.Amy Adams, North Carolina campaign coordinator with Appalachian Voices, dips her hand into the coal ash spill in the Dan River.

CREDIT: AP Photo / Gerry Broome

Emails obtained by the Associated Press suggest staff at North Carolina’s environmental regulatory agency coordinated with Duke Energy officials before intervening in a suit by citizen groups against the company.

For several years, various citizen groups in the state have attempted to sue Duke Energy under the Clean Water Act. Ponds in which the company was storing its coal ash — the residue left over after coal is burned for power generation — were reportedly leaking and contaminating North Carolina’s groundwater.

In January 2013, the Southern Environmental Law Center (SELC) filed notice that it intended to sue Duke Energy over the same matter. According to emails the Center provided to the AP this week, a Duke lobbyist contacted the North Carolina Department of Environment and Natural Resources (DENR) to set up a meeting just days after the 2013 filing. “The emails suggest the company and regulators were in frequent contact,” the AP reported, “with a lawyer for Duke even advising the state on legal strategy at one point.”

Lawyers for the SELC had informed the state government that citizen groups could not be blocked from participating in the dispute over the coal ash. But in April of 2013, a lawyer for Duke tried to find case law that could convince a judge otherwise. In May, the Duke lawyer emailed an example case to North Carolina’s Special Deputy Attorney, who forwarded it to the top lawyer at the DENR. Then in July, the Special Deputy Attorney went before the judge in the suit to argue that citizens groups should not be allowed to participate from the legal proceedings against Duke. The judge ultimately turned down the argument.

“They tried to keep us from being full parties in the case,” said Frank Holleman, a senior attorney for the Southern Environmental Law Center. “Duke is the lawbreaker. DENR is the law enforcement agency. They are supposed to be protecting the people. Instead, they are working with the lawbreaker to find a way to limit the participation of the citizens groups in the law enforcement proceedings in the way that will benefit the lawbreaker. It’s astonishing.”

The DENR had used its authority to negotiate a proposal in which Duke would pay a $99,100 fine to settle the violations of the Clean Water Act, but would be under no requirement to actually clean up the pollution. That settlement was derided by environmentalists as a “sweetheart deal,” and was tabled after a massive new spill from one of Duke Energy’s coal ash ponds in February of this year. Eighty-two thousand tons of coal ash leaked into North Carolina’s Dan River, polluting 70 miles of the river and layering as much as 5 inches of coal ash slurry along some points of the river bed.

The latest spill has sparked a federal criminal investigation into whether DENR has been inappropriately lax in regulating Duke Energy due to its close interactions with the company.

North Carolina Governor Pat McCrory also worked for Duke Energy for 28 years and received substantial financial support form the company in his campaign. McCrory recently said he wants Duke Energy to remove coal ash from all the ponds that sit near water sources. He also gave Duke Energy until tomorrow to come up with a plan to clean the latest spill.

According to the SELC, data collected over years reveals that coal-fired power plants and their coal ash ponds in the state have polluted North Carolina’s groundwater. The Center also argued that most of North Carolina’s coal ash ponds are aging, with some having been in operation for as long as 50 years. The DENR has also cited a total of seven power plants, including at least five owned by Duke Energy, for not having proper storm water permits.

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