Emails show close ties between utility, N.C.

Suggest agency coordinating with Duke before intervening in push for pollution suit

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RALEIGH, N.C. -- Internal emails between North Carolina environmental agency staff suggest that state regulators were coordinating with Duke Energy before intervening in citizens groups' efforts to sue the utility over groundwater pollution leeching from its coal ash dumps.

The emails were provided Thursday to The Associated Press by the Southern Environmental Law Center, which had filed notice in January 2013 of its intent to sue the nation's largest electricity company under the Clean Water Act.

Within days, the emails show, a Duke lobbyist contacted the North Carolina Department of Environment and Natural Resources to set up a meeting. Emails suggest that the utility and regulators were in frequent contact, with a Duke lawyer even advising the state on legal strategy in an April 30, 2013, email.

At the time, environmental law center lawyers were worried that Duke and state regulators would reach a deal without any input from citizens groups. They told the state that the groups couldn't legally be blocked from participating. But the emails show that Duke lawyer Charles Case tried to find a case as precedent to convince a judge otherwise.

Special Deputy Attorney General Kathy Cooper, representing the state in the suit, on May 15 forwarded the email and attachment to the state environmental agency's top lawyer, Lacy Presnell.

"Mr. Presnell asked during our meeting for an example of participation by a intervenor on a non-party basis," Mr. Case wrote, adding that he looked forward to speaking with them.

On July 3, a transcript shows Ms. Cooper argued before Wake County Judge Paul Ridgeway that the citizens groups should be excluded from the proceedings.

"They tried to keep us from being full parties in the case," said Frank Holleman, law center senior attorney. "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 agency ultimately used its authority to intervene in the suit, quickly negotiating a proposal where the $50 billion utility would pay a $99,100 fine to settle environmental violations, but be under no mandate to actually clean up its pollution.

Environmentalists have derided the proposal as a "sweetheart deal" by compliant state regulators to shield Duke from far harsher and more expensive penalties that the utility would have likely faced had the citizens groups been allowed to move forward in federal court.

That proposed settlement was tabled last month after a massive spill from a Duke dump in Eden that coated 70 miles of the Dan River in toxic gray sludge. Coal ash contains a witch's brew of dangerous chemicals, including arsenic, lead and selenium.

Duke spokeswoman Paige Sheehan said Thursday that the utility wouldn't comment on the "content of any specific emails."

In a letter this week to state regulators and Gov. Pat McCrory, Duke president Lynn Good said it would take the company at least two years to clean up the Dan River site. She said the company will move the ash away from the river either to a lined landfill or a "lined structural fill solution."

DENR Secretary John Skvarla called the plan inadequate Thursday, saying he wanted more answers from Duke.

Federal prosecutors have launched a criminal inquiry in the spill's wake, issuing at least 23 grand jury subpoenas to Duke executives and state officials.


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