On Sunshine Week: Public records, diligence reveal problems in DENR/Duke Energy relationship

In fighting for the clean-up of coal ash ponds around the state, the Southern Environmental Law Center has depended on an unusual weapon, North Carolina’s public records law, to make its case about the dangers posed by the lagoons of toxic sludge that dot the state.

The group has filed multiple requests for public documents over the last two years with various state and local agencies and amassed thousands of pages of documents detailing the level of monitoring of the 30 plus coal-ash ponds and information about contamination of groundwater at 14 coal-fired plants owned by Duke Energy.

An account of the state’s mixed track record of regulating Duke, the nation’s largest public utility with headquarters in Charlotte, has also emerged from those public records.

The environmental group’s warnings of disaster were realized Feb. 2 when 39,000 tons of coal-ash sludge, enough to fill more than 400 railroad cars, spilled from a Duke Energy holding pond in Eden into the Dan River. The ash, laden with arsenic and other dangerous metals, has spread 70 miles down the river and has been the third worst spill in the nation’s history.

The circumstances surround that the spill and the years leading up to it are now a focus of a criminal probe by a federal grand jury examining the cozy ties between the company and the state agency and state utility commission.

We spoke recently with Frank Holleman, an attorney with Southern Environmental Law Center that has led the group’s effort to push for immediate cleanups of North Carolina’s coal ash ponds.

Why do public records laws matter to environmental groups?

“Public records law and related laws and rules are absolutely essential to protecting North Carolina’s natural resources. Our state agencies collect a lot of data. Many of the employees do a very diligent job collecting the data, doing research and collecting information on the entities that pollute. For citizens that can’t get direct access to the private property where the pollution occurs, the only way to find out what’s going on is to go through the public records.”

How long has SELC been asking for documents related to coal ash?

“In North Carolina, we’ve been doing it in a concerted way since 2012. It’s been an essential part of what we’ve done to see if pollution is occurring, to find out about leaking dams and to find violations of the federal Clean Water Act and similar state laws.

“The overarching agency that has most of the records is the N.C. Department of Environment and Natural Resources. We’ve also sought them from state and local utilities, including places like Charlotte. For example, in Wilmington, there is a serious issue with groundwater contamination that is part of the public water supply.”

How important are the records?

“It would be very, very hard to put together an effective case and also to find out the level of risk the public faces and what natural resources are suffering without them [the laws].

“These rules and laws are great but they’re only good if someone uses them and uses them effectively, something that the average citizen doesn’t always have the time and resources to do. It is so important that we have non-profit organizations that, like the Southern Environmental Law Center, will put the resources, time and people into getting these records.

“They [public records] are not up on the website and you wouldn’t know about them until you ask. Once you ask for them, you’ll have to squabble with the state. Eventually, they do have to give them up.”

Can you describe what a recent request for records, and how it was handled?

“Months and months ago we sent public records requests to DENR to try to access records about [negotiations for a settlement the state made with Duke about coal-ash ponds]. We haven’t gotten the records for some time. The court ordered the state to produce the materials to us in November. The state produced some materials but didn’t produce the critical ones. We had to go back and forth with the state about why they’re withholding them.”

In late February, several weeks after the Dan River spill, Wake Superior Court Judge Paul Ridgeway again ordered the state to hand over records SELC had asked for months prior, Holleman said.

“The state literally handed us two brown expanded document folders of prepared documents and two discs and thumb drives. You have to spend hours and hours going through the documents.

“It took months and months and court rulings to get information out. Normally, you don’t have to do that, thank goodness. This one has, unfortunately, been heavily charged with the politics of state government.”

What have the delays in the records meant?

“If we could have gotten [records earlier]… and the state took proactive action to ally itself with the public that’s being affected by the pollution, things could have moved along much more quickly.

“In South Carolina, we resolved a very similar case with a major utility in six months. We resolved another case with another utility in a little more than a year. Those utilities are cleaning up their coal ash lagoons.

“We’re still in the situation where DENR has yet to respond to all the records it’s supposed to produce. Duke has yet to move an ounce of coal ash. We have very strikingly different outcomes.”

Does it ever get frustrating waiting for records?

“Oh, sure it gets frustrating, but that just comes with the territory. If you let the roadblocks put in your way by a recalcitrant state agency, then you let the polluters win.”

Any “smoking gun” moments with records you’ve found?

In South Carolina, SELC found documents obtained through a public records request that showed the state regulatory agency had found that the state-owned utility was violating rules that govern utilities.

In North Carolina, Holleman said he received one stack of documents with a yellow Post-it note from an anonymous DENR employee that advised he look at a certain email sent on a specific date. That email ended up pointing out a serious issue related to coal ash storage, he said.

What changes do you think the public records law needs, or what practices would you like to see changed?

“Of course, the principle thing for us is that they be able to react more quickly, in a reasonably efficient way and not take months to produce the documents.”

Any parting advice for citizens with their own concerns?

“It’s a cliché, but it’s definitely true – sunshine is the best disinfectant. If things are brought to light and things are brought to the public, change will often happen.

“If you have a questions about some park or natural resource or river in your area, it’s well worth going to DENR and your local city of county agency and asking for documents to see what’s really going on.”

Frank Holleman is a staff attorney at the Southern Environmental Law Center in Chapel Hill.

Inspired to file your own public records request? Check out this guide published by N.C Attorney General’s Office.

Questions? Comments? Reporter Sarah Ovaska can be reached at (919) 861-1463 or [email protected].