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Duke Energy talked ash lawsuits with regulators

Emails released Thursday by lawyers for environmental advocacy groups show that Duke Energy and regulators discussed the state lawsuits filed last year over coal ash.

The Southern Environmental Law Center says the exchanges illustrate a friendly relationship between Duke and the N.C. Department of Environment and Natural Resources.

The law center contends that DENR sued Duke to protect the utility from threatened lawsuits – and presumably harsher penalties – by the groups it represents.

Environment Secretary John Skvarla has said his agency responded correctly in filing four lawsuits against Duke, covering all 14 coal-fired power plants in North Carolina.

Internal emails the center released include one from an N.C. Department of Justice lawyer in March of last year, seven weeks after the law center had filed a 60-day notice of its intent to sue Duke.

The lawyer wrote that she needed to learn under what corporate name the state would file its own lawsuit against Duke. Duke merged with Progress Energy in July 2012, combining two fleets of coal-fired power plants.

“I need to check with (DENR general counsel Lacy Presnell) about how Duke wants to be sued,” she wrote.

The next day, according to the emails, the same lawyer wrote Presnell: “I need to know from you if Duke is expecting us to sue them or Progress.”

DENR spokesman Drew Elliot said he didn’t know whether Duke asked regulators to sue.

“But the point is, Duke is not our legal counsel,” he said. “We had a choice to make: Do we enforce the Clean Water Act, or do we let a citizens group enforce the Clean Water Act? There was only one choice, and that’s what we did.”

Duke didn’t return calls for comment.

‘Everything is under negotiation’

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 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.”

The law center has been a vocal critic of Duke and DENR’s oversight since the Feb. 2 spill of up to 39,000 tons of ash into the Dan River.

The emails “show there is a very close and cozy relationship between Duke Energy, which is the polluter in this case, and DENR, which is supposed to protect you and me and our water resource,” said senior attorney Frank Holleman.

DENR sued Duke over ash at its Asheville power plant last March, followed by litigation over the Riverbend plant west of Charlotte. Both state lawsuits followed notices of intent to sue by groups the law center represents.

Terms of proposed settlement discussed

The released emails show Duke and DENR officials discussing terms of a proposed settlement over the two plants. The settlement called for a $99,000 fine and continued study of ash contamination.

Widely derided as too lenient during a public comment period, the proposal was later sidelined.

“Instead of working with the citizens and the community which is being harmed by the pollution, DENR is working with the lawbreaker to continue to harm the water its charged with protecting,” Holleman said.

The law center contends the state should have tried to force Duke to move ash out of leaking ponds, a move Duke agreed to in part on Thursday.

“Our goal was to stop the groundwater contamination and clean it up, and this was the path that the (N.C.) Department of Justice and DENR saw to do that,” Elliot said.

The state lawsuits, and two more filed over 12 other plants, cite groundwater contamination that’s been documented at all 14 sites and for illegal seeps from ash-pond dams.

A Wake County judge, in a reversal of the state’s Environmental Management Commission, ruled last week that Duke should take “immediate action” on its ash contamination. The law center hopes to apply that ruling to the four state lawsuits against Duke.

Duke asked the judge Thursday for a 30-day stay of the order, until April 7, as it considers an appeal.

The law center is now a formal party to the state’s lawsuits. DENR gave law-center attorneys the emails, Holleman said, after a judge presiding over the cases ordered the agency to reply to a public records request.

The (Raleigh) News & Observer contributed.

Henderson: 704-358-5051; Twitter: @bhender
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