On Friday the North Carolina Department of Environmental Quality issued a press release titled, “McCrory administration issues coal ash violations against Duke Energy.”
The press release linked to notice letters that trigger a DEQ administrative enforcement process for illegal pollution that is, at least in large part, already the subject of ongoing state court enforcement actions brought by the same agency some 31 months ago. In 2013, the McCrory administration filed those lawsuits in court rather than administrative enforcement actions because it was necessary to prevent more citizen suits against Duke Energy for its rampant Clean Water Act violations. Since then, there has been a massive coal ash spill on the Dan River and the the administration has done everything in its power to ensure that its own court actions do not produce any meaningful results (including objecting to partial settlements reached between conservation groups and Duke Energy). To this day, Governor McCrory’s DEQ has completely failed to get an ounce of coal ash cleaned up without the help of citizen groups, the state courts, or the state legislature.
Why, then, would McCrory’s DEQ issue these apparently redundant notices of violation now if they already have enforcement cases before the state court? One likely explanation is this is the latest in a long series of increasingly elaborate legal schemes the Pat McCrory administration has concocted to achieve its goal of excluding the public. A key distinction between state court enforcement actions and administrative enforcement actions is the latter affords little if any opportunity for public participation. While affected citizens can intervene in state court proceedings, the administrative process happens almost entirely within the agency, unfettered by all the due-process rights that all citizens enjoy in the North Carolina courts. Because the state court recognized these rights and has allowed citizen groups to intervene in the 2013 lawsuits, the DEQ now appears to be attempting to sidestep its own cases by initiating vague administrative enforcement actions.
Today’s maneuver by DEQ is particularly suspect because the violation notices sent to Duke contained only one vaguely-worded paragraph about the violations at issue. Instead of describing in detail the location and nature of the specific violations by Duke Energy, the letters only referenced “unauthorized discharges of wastewater” from Duke coal ash basins.
Notably, dozens of “unauthorized discharges of wastewater” from Duke coal ash ponds to North Carolina rivers and lakes were first discovered, documented, and made public by Waterkeeper Alliance and local Riverkeepers in North Carolina beginning in 2010. We continued to document and publicize these illegal discharges from additional Duke facilities year after year. Only after Waterkeepers initiated citizen enforcement actions did the McCrory administration take action of its own, attempting to block the citizen suits in the process.
Now, a full six years after Waterkeeper Alliance first uncovered “unauthorized discharges” from Duke coal ash ponds, and more than two years since it filed enforcement lawsuits in state court, the McCrory administration finally decided to send Duke Energy vague notices of violations, giving Duke Energy a chance to respond and explain the violations. This latest letter writing exercise results in nothing more than a paper shuffle between Duke and the McCrory administration for the next 30 days – with no opportunity for public input. It is too little, too late. The press releases is a misleading public relations attempt to make a notice of intent letter seem like real action. It is not. It is a charade intended to short-change the people of North Carolina all over again.
Meanwhile, the McCrory administration continues putting politics ahead of people’s lives. A few months after Governor McCrory hosted a private dinner with Duke executives in the Governor’s mansion, DEQ bureaucrats downgraded coal ash cleanup recommendations made by the agency’s own technical staff. The staff recommendations would have compelled full clean up of leaking ash ponds, but top officials in the McCrory administration lowered the ash pond risk ratings to a weaker rating that would allow Duke to leave the ash where it is, in unlined leaking pits. Thanks to NC legislators, not the McCrory administration, the NC Coal Ash Management Act requires the agency to hold public hearings this month on the proposed downgraded site rankings. Waterkeeper Alliance, our NC Waterkeepers and many impacted community members will be at these hearings demanding that the McCrory administration stop blocking full clean up of leaking coal ash ponds.