Update: A spokesperson from the Southern Environmental Law Center sent the Indy this statement clarifying Skvarla’s comments on DENR’s cooperation with citizens groups on the consent agreement with Duke Energy:
DENR has resisted citizen conservation group participation every step of the way. DENR is legally barred from objecting to our intervention, but it refused to consent. Even then, its attorney attempted to limit our participation in oral argument at the intervention hearing. The judge rejected those arguments and granted intervention.
So, several conservation groups are now parties to the enforcement action. But even now, DENR is taking positions adverse to the citizens groups and protective of Duke. For example, it is currently refusing to produce public records related to the proposed settlement between DENR and Duke that the conservation groups have requested (and have every right to request).
DENR Secretary John Skvarla used an hour-long press conference this afternoon to “dispel the misconception” that the Department is an adversary to citizens’ environmental groups “who are fellow participants” in four lawsuits against Duke Energy.
“We are partners and we all have same outcome in mind, to clean up the spill, to protect the environment and the citizens of North Carolina,” Skvarla said. “We are on the same side of the table.”
Officials from the Department would not comment on a federal investigation into a coal ash spill that dumped thousands of tons of toxic material into the Dan River earlier this month.
Earlier today, it was reported that the scope of the feds’ investigation will include all other Duke coal ash ponds in the state, as well as whether money changed hands between specific DENR employees and Duke Energy and the former Progress Energy which Duke now owns.
Ten days after the Dan River spill, DENR officials requested that a proposed consent agreement between the Department, Duke Energy and the citizens that originally filed suit be pulled until DENR finishes investigating the Dan River spill.
Skvarla said DENR received a letter from some citizens groups in January, 2013 announcing their intention to file a lawsuit against Duke Energy over a coal ash pond in Asheville.
“We assured them there was no hesitation on DENR’s part,” Skvarla said. “We said we would do what we were supposed to do because the Clean Water Act delegates responsibility and authority to this agency to enforce the law.”
DENR then filed four lawsuits against Duke on its own and, after several meetings between the legal teams of the three parties involved, entered into a consent agreement with Duke Energy in July; the citizens groups signed onto the consent agreement in August, after the agreement had been negotiated.
The problem, Skvarla explained, was that the citizens groups’ “only acceptable remedy” was for Duke Energy to dig up its coal ash ponds, move them to lined landfills and cover them up.
“(Duke) has due process,” Skvarla said. “No one has dictatorial rights to demand you do something…It’s not that simple, a lot of science goes into making determinations. Some scientists say (the citizens groups’ proposal) is the worst thing you can do for the environment.”
The result was the watered-down consent agreement wherein Duke Energy had to pay a $99 thousand fine and would be forced to pay a penalty “five times greater than any penalty ever imposed in the history of North Carolina” if found to be out of compliance.
“Duke could have chosen to litigate,” Skvarla said. “They could have said I don’t like the fine or the backend penalty- let’s go to court. This could have been tied up for five or six years.”
Skvarla said a task-force has been assembled to investigate what happened at the Dan River, but the damage may already have been done: reports say the level of arsenic in the water is up to fourteen times the amount safe for human contact, after DENR mistakenly said that all tests for arsenic levels in the Dan River showed the water was safe.
Cassie Gavin, the director of government relations for the environmental group the Sierra Club, had this to say in a press release:
“Noticeably lacking in today’s press conference was any stated commitment by the administration to remove coal ash from unlined lagoons next to our waterways…Coal ash ponds are unlined holes in the ground where chemicals seep into and threaten our groundwater…We cannot afford excuses or foot dragging.”