WNCN investigation gets answer on state's coal ash appeal - WSLS 10 NBC in Roanoke/Lynchburg Va

WNCN investigation gets answer on state's coal ash appeal

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Cliffside Steam Station, located on the Rutherford and Cleveland County line. (Duke Energy) Cliffside Steam Station, located on the Rutherford and Cleveland County line. (Duke Energy)
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RALEIGH, N.C. -

The state of North Carolina has joined Duke Energy in appealing a judge's order for the utility to take immediate action to eliminate sources of groundwater contamination at its coal ash ponds.

The N.C. Environmental Management Commission filed the appeal late Monday afternoon, just four days after Duke Energy said it can not immediately clean up the pits as required by Superior Court Judge Paul C. Ridgeway's March 6 order.

Duke argued that it needed more time or else the cleanup "will impose significant material costs on Duke Energy and its customers as well as potentially affect its ability to generate power."

· Click Here to read the commission's appeal

· Click Here to read Duke Energy's appeal

But the state’s decision to appeal left many scratching their heads.

“Why would the state of North Carolina object to having strong authority to clean up illegal pollution?” asked attorney Frank Holleman with the Southern Environmental Law Center.

WNCN Investigates asked DENR, the district attorney’s office, and all the members of the Environmental Management Commission why appeal?

No one gave us answer.

The Environmental Management Commission is a 15-member commission appointed by the governor, the Senate president pro tempore and the House speaker. It is tasked with adopting rules for the protection, preservation and enhancement of the state's air and water resources.

Only two of the members would discuss anything about the appeal with WNCN. They said the ruling would impact much more than just ash ponds. The others who responded, simply said it’s not regular practice for them to talk about pending litigation.

"Just a week after the state publicly abandoned its sweetheart deal with Duke and promised to 'enforce' the law, it has appealed a judicial ruling that confirmed the state's legal authority to enforce a real solution for coal ash contamination," Southern Environmental Law Center attorney D.J. Gerken said in a statement.

"We're disappointed that this administration remains so determined to delay through litigation rather than move forward to stop ongoing pollution of North Carolina's rivers, lakes and groundwater."

WNCN Investigates did some digging into the Environmental Management Commission, and this is what we found:

Benne Hutson, chairman of the group is an environmental lawyer who's written about coal ash saying citizen lawsuits will be used as “weapons" to shut ponds down. His law firm, McGuire Woods, has represented Duke Energy in the past.

Gerard Carroll worked at the National Gypsum Company. Gypsum is commonly collected from the coal burning process along with coal ash. The company is home to a solar farm owned by Duke Energy

Charles Carter is an attorney with Nexsen Pruet, a firm who's handled environmental cases in South Carolina and represented Duke Energy.

Daniel Dawson is a manager at WK Dickson, where we’re told the vice president’s brother is an employee at Duke Energy.

Then there's Excell O. Ferrell, the former president and CEO of Grand Bahama Power. He retired in 2006 as senior vice president of electric distribution at Duke Energy.

Next is Manning Puette, a retired attorney, not for Duke Energy, but for another major power company in California.

Dr. Albert Rubin, is a former environmental consultant at McKim and Creed whose been contracted to do land surveying projects for Duke Energy.

Clyde Smith is the general manager for Cleveland County Water, who could back a project to build a reservoir for a nuclear plant owned by duke energy

Finally that leaves Steve Tedder, an environmental scientist whose done work for the EPA, but has now retired after 37 years with DENR.

It all at least nine of the 15 members had ties to Duke Energy, DENR, or a major power company.

WNCN learned three of the 15 members, Benne Hutson, Charles Carter and E. O. Ferrell recused themselves from the vote because of conflict of interest.

But less than 20 minutes after we ran this information on our newscast, Vice-chair Kevin Martin sent WNCN an email with this brief, giving more insight as to why they may have appealed. 

- Click Here to read the brief.

WNCN Investigates is currently reviewing the documentation now, although it does not specifically address the EMC's recent vote.
The case began in October 2012, when SELC -- on behalf of several groups -- asked the commission for a ruling to clarify how the state was applying rules for groundwater contamination at waste dumps.

SELC wanted the commission to order regulators to force Duke to take immediate corrective action when toxic chemicals in the groundwater exceeded water quality standards "at or beyond the compliance boundary."

In its Dec. 20, 2012 decision, the commission interpreted state rules to mean contaminated groundwater didn't have to be cleaned up until they assessed the problem. The brief sent by Martin is in support of the EMC's 2012 decision. But Ridgeway's order reversed that decision. He said that violators "must take immediate action to eliminate sources of contamination that cause a concentration of a substance in excess of groundwater quality standards."

Duke's request for a stay is based on the grounds that Ridgeway's order "reversed a long-standing administrative interpretation and application of the North Carolina groundwater protection rule ... to the coal ash ponds located at Duke Energy's power plants in North Carolina."

· Click Here to read Duke's motion for stay

Duke also said Ridgeway's order "will have effects beyond the Ash Ponds throughout the State of North Carolina and, based upon an analysis by DENR, will materially impact 700 sites overseen by the Division of Water Resources and 2,020 sites overseen by the Division of Waste Management."

Regardless of the appeal, Duke said it is committed to cleaning up coal ash ponds at its Asheville Plant, Dan River Steam Station and Riverbend Steam Station.

"These actions were set forth in a March 12, 2014, letter from Duke Energy's Chief Executive Officer to the Governor of North Carolina and will be unaffected by either the appeal or the imposition of a stay," Duke said.

DENR made it clear that their department is an entirely separate entity from the EMC, although DENR employees help run EMC meetings and all EMC information is on the NCDENR website.

A spokesperson for DENR said they do not speak for the EMC. WNCN asked what DENR wants to see happen with the ruling, they replied it was not appropriate for them to answer.

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