Feds to assist DENR on coal ash probe

Federal regulators will be "joining forces" with North Carolina's Department of Environment and Natural Resources to resolve coal ash pollution problems around the state.

Posted 9:25 p.m. Mar 21, 2014 — Updated 11:49 p.m. Mar 21, 2014

Laura Leslie

RALEIGH, N.C. — North Carolina's Department of Environment and Natural Resources announced late Friday afternoon that the U.S. Environmental Protection Agency and the state agency will "pursue a joint approach" on solving the state's coal ash problem.

DENR said Secretary John Skvarla had invited the EPA's "participation and coordination" to "craft environmental solutions" to ongoing Clean Water Act violations at 14 Duke Energy sites around the state.

DENR was careful to point out that the partnership will be a collaboration, not a federal intervention into state regulators' territory.

"It is not unusual for EPA and delegated States to join together to pursue and effectively resolve complex and nationally significant enforcement matters. This approach signals a willingness to work as a team to continue the path that DENR has taken in response [to] these issues," said the news release.

Gov. Pat McCrory, a former Duke executive, was quoted as being "pleased" by the development.

"The state’s goal is to clean up both the Dan River and to protect public health and the environment at the other Duke Energy facilities around the state," McCrory said in the news release. "Participation by the EPA will bring additional resources to help us resolve a difficult problem that spans more than six decades."

A Feb. 2 ash spill in the Dan River from a retired Duke plant in Eden prompted increased scrutiny of the state's oversight of coal ash.

Action averted?

The EPA has the power to essentially take over state regulatory authority if federal regulators don't believe the state is adequately enforcing federal laws, including the Clean Water Act.

Internal DENR emails obtained by the Southern Environmental Law Center, which has sued both Duke and DENR, indicate agency leaders were concerned about just such a federal intervention at a plant in Asheville, which was formerly owned by Duke subsidiary Progress Energy, in March 2013.

On March 12, 2013, Division of Water Quality supervisor Jeff Poupart messaged division director Chuck Wakild and others: "I just got off the phone with EPA – they are considering legal action related to the SELC letter against Progress Asheville plant. I will be available to discuss."

One week later, Poupart followed up with division leaders: "I just got off the phone with Denise Diaz and Stacy Bouma at EPA Region IV. They were getting ready to send a sampling team up to Asheville to start investigating the power plant. Apparently, SELC’s attorneys have been contacting EPA’s attorneys regularly. Denise indicated that if NC continues to pursue our action the EPA is not likely to intervene."

That message was forwarded by DENR attorney Lacy Presnell to Skvarla, who responded, "Great news!"

Federal probe underway

At the same time that DENR is responding to ongoing problems and leaks at Duke's coal ash ponds, federal investigators are probing state regulators' relationships with the utility.

Twenty current and past DENR employees have been subpoenaed. The grand jury in the case convened Tuesday and met all week.

SELC attorney Frank Holleman welcomed the news that the EPA will be working with the state.

"With DENR responding to a federal criminal grand jury investigation, North Carolina and its rivers need all the help they can get," Holleman responded. "We urge both EPA and DENR to work with us to see that Duke Energy is forced to clean up its coal ash pollution and move its coal ash to safe lined storage away from our waterways."

"We hope this new development signals faster and more effective action than we have seen to date on the coal ash crisis facing our state," said Dustin Chicurel-Bayard with the North Carolina Sierra Club, a co-plaintiff on SELC's legal actions.

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