Regulators were frustrated at slow pace of Duke coal ash stormwater controls

State environmental regulators repeatedly tried to impose stormwater runoff controls at a Duke Energy power plant in Person County but were met with inaction by their supervisors for years, according to internal emails.

The stormwater permit section was told to wait until a supervisor could discuss options with the power company. Staffers’ requests for a resolution went unresolved – reaching as far back as the administration of Gov. Bev Perdue.

Finally, a regulator wrote, “We stopped asking.”

That exchange in September among staffers at the N.C. Department of Environment and Natural Resources was unearthed in a public records request by the Southern Environmental Law Center last week. The center provided The News & Observer with a copy of the email exchange on Monday.

The disclosure came on the day that DENR announced it has found stormwater violations at five more Duke Energy coal ash plants, in addition to the two stormwater and wastewater violations announced Friday at the company’s Dan River site.

The environmental law group is at odds with DENR over what it considers the agency’s lax regulation of coal ash storage. The issue came to the public’s attention when a massive coal ash spill was discovered at the Dan River site on Feb. 2.

The advocacy group contends the emails illustrate that DENR’s recent sanctions against Duke could have been taken well before the environmental disaster that dumped up to 39,000 tons of coal ash and as much as 27 million gallons of wastewater into the river.

“We know for a fact DENR staff was trying to get stormwater permits issued for these facilities for some time,” D.J. Gerken, an attorney with the law center, said Monday. “They’ve been shut down internally after leadership met with lobbyists from Duke. These permits were put on the shelf. Dan River is an example of why we have to have these monitored, as a permit requires.”

A DENR spokesman on Monday characterized the emails differently.

Drew Elliot, communications director, said the emails appear to show inaction by the Perdue administration – as the stormwater staff sought direction as far back as early 2011 – but indicate a more aggressive reaction by Gov. Pat McCrory’s administration, which assumed control of state government in January 2013.

The September 2013 email exchange came at a time when the agency was being reorganized, moving the stormwater section to the land resources section.

“It felt like a good time to pick the ball back up again under the new leadership,” Elliot said.

Staff told to ‘hold off’

How to best handle stormwater permits has been an issue in the environmental agency for several years.

One of the emails made public Monday indicate that DENR staff tried to come up with options at the Mayo Power Station in Person County, which was operated by Progress Energy Carolinas, which merged with Duke Energy 18 months ago. The utility wanted to obtain authorization to discharge stormwater, and last year presented DENR with a general landfill permit form that was already filled out and just required signatures, according to one email.

Stormwater regulators said such a general permit wouldn’t be sufficient because it didn’t address the specific risks of pollution from an ash landfill. The utility expressed concern that the plant receive a permit as soon as possible, and not be delayed by an extended public comment period that would be required if an individual permit was issued, the email says.

The DENR staff also told the company that it was moving away from incorporating stormwater and wastewater regulation into single permits.

On Sept. 12, 2013, Bethany Georgoulias, an environmental engineer in DENR’s stormwater permitting program, emailed a colleague, saying meetings to resolve the issue had gone on for more than a year – from early 2011 to May 2012. A proposal was made to monitor the sites, butstaffers were told to wait until a DENR supervisor could talk to one of the Duke Energy lobbyists, she wrote.

Georgoulias also wrote that staff had repeatedly over the past year and a half asked for direction on another plant, in Rowan County, “and we were told to hold off.”

“We stopped asking,” she wrote of the broader coal-ash stormwater regulation issue. Georgoulias’ emails called on DENR supervisors to meet soon on what to do about the plants.

One of those supervisors, Tom Belnick, emailed her back confirming that the agency was moving away from combining wastewater and stormwater conditions into a single permit. He said the agency had begun requiring groundwater monitoring at the ash ponds, “and we have our hands full between those two,” he wrote.

Permits still needed

Elliot said stormwater permits are one of the issues DENR is looking into as it reviews the 14 Duke coal ash sites in the state. The coal-power byproduct is stored in 33 ponds at those sites. (Previously, DENR has said there were 32 ponds, but on Monday said it had erroneously excluded a pond that is exempt from regulation.)

That’s what led to the violations being issued against the six plants, Elliot said. “They’ve had ample time to comply” with the law by obtaining stormwater permits, he said.

A spokeswoman for Duke Energy had no comment on the emails. She said that the company would respond directly to the state on the violations and would not make public comments about them.

The violations announced Monday indicate the five plants don’t have permits to discharge stormwater. The violations were issued late Friday, according to the agency.

The five plants cited with violations: Belews Creek Steam Station in Rockingham County, Cliffside Steam Station in Rutherford County, Lee Steam Electric Plant in Wayne County, Roxboro Steam Electric Power Plant in Person County and Sutton Steam Electric Plant in New Hanover County.

DENR’s post-Dan River spill investigation determined that Duke Energy hadn’t applied for stormwater permits at six of its plants, including Dan River. Four other plants have applications under review and two have the permits included in their wastewater permits. Two facilities that no longer operate have had their stormwater permits rescinded or withdrawn.

Stormwater at industrial facilities, such as Duke Energy’s steam electric power-generating plants in North Carolina, are regulated by a federal program which state authorities implement.