Duke filing may be good news for NC DENR

Less than two weeks after the spill from a Duke Energy plant on the Dan River last February, federal subpoenas seemed to be flying everywhere: Both the utility and its regulators in state government were served, including 18 current and former employees of the state Department of Environment and Natural Resources.

The U.S. attorney’s office in Raleigh, which issued the subpoenas, declared that a federal grand jury was conducting a criminal investigation of a suspected felony.

On Friday, the probe produced misdemeanor charges – all aimed at Duke alone.

Federal prosecutors were not commenting, but allegations made in court filings across the state indicate a focus on environmental harm by the utility.

For now, no news might be good news for state officials.

“What I can’t tell is whether by silence on that point that means nothing else (is) going on with the grand jury or not,” said Robin Smith, a former high-ranking official at DENR who now runs an environmental law firm in Chapel Hill. “If I was them, I would probably feel that way – that nothing is good news in their situation.”

It’s a marked change from a year ago, when subpoenas demanded that officials surrender records and testify before the grand jury in Raleigh. Prosecutors wanted not only records of inspections of the ash basins at coal-fired power plants across the state, but also such details as who was present for key meetings on enforcement issues, personnel files, and even whether money or anything of value changed hands between regulators and employees of Duke Energy or its predecessor company, Progress Energy or Carolina Power & Light.

It didn’t look good for the state’s environmental protection agency, which was suddenly under scrutiny for not having taken more aggressive steps to force Duke Energy to stop groundwater pollution seeping from its ash ponds. Gov. Pat McCrory, who worked for Duke for 28 years, sought to distance himself from the company.

The charges were expected since Wednesday. Reached before they were officially announced, McCrory on Friday declined to comment.

It isn’t known whether the grand jury will continue its probe, or if it has concluded.

Duke Energy said in a statement released Friday that the proposed settlement, if approved by a judge, would close the federal investigation of the utility. Federal prosecutors would not comment.

Neither DENR, nor the governor, nor the N.C. Utilities Commission (which had authority over dam safety before DENR took over that responsibility) have been charged with crimes.

The alleged crimes didn’t occur solely while the McCrory administration was in office. The subpoenas and criminal charges show that investigators looked at records dating back to 2010, three years before McCrory took office.

The charges Friday covered actions in Wayne County dating to October 2010; in Buncombe County dating to May 2011; in Gaston County dating to November 2012; in Chatham County dating to January 2012 and in Rockingham County since January 2012 – and including last February’s spill into the Dan River that triggered the probe.

Amy Adams, .North Carolina campaign coordinator for Appalachian Voices, and a former supervisor at DENR, issued a statement praising federal prosecutors for pursuing the case and agreeing to a substantial fine, and to Duke Energy for taking responsibility.

“Important questions remain, like exactly how the money will be spent and whether any individuals will be named,” Adams said. “But most troubling is the currently unanswered question of whether DENR was aware of negligence and failed to act, or was unable to recognize the magnitude of the situation in the first place.”

The federal investigation was coordinated by an assistant U.S. attorney who handles environmental crimes, with help from criminal agents with the U.S. Environmental Protection Agency and the N.C. State Bureau of Investigation. When the EPA looks into major spills, it typically becomes a criminal investigation when the alleged polluter intentionally violates the law, and that is usually pursued as a felony offense.

When a spill is the result of a mistake or accident, the EPA usually pursues a civil prosecution. In this case, Duke Energy says it agrees there were misdemeanor criminal offenses.

Renee Schoof of the McClatchy Washington bureau contributed.

Jarvis: 919-829-4576;

Twitter: @CraigJ_NandO