RE DWR Revisions to Proposed Consent Order
Page 1
From: Case,_Charles_D. To: =?utf-8?Q?Cooper _Kathy?= Date: 9/27/2013 4:03:14 PM Subject: RE:_DWR_Revisions_to_Proposed_Consent_Order_ENFORCEMENT_CONFIDENTIAL_&_401_PRIVILEGED_SET TLEMENT_COMMUNICA Attachments: Draft_Consent_Order_-_Asheville_Riverbend_-_Final_47188674_16-c.DOCX Redline_HW_US_47188674_v12_and_HW_US_47188674_v16-c.pdf
Kathy, Your email and our conversations have been helpful in trying to clarify the reasons behind the last set of changes. We spent a significant part of yesterday with Duke personnel analyzing those changes and working on ways that would address DWR ??s concerns while retaining the necessary elements to clarify that (1) the seeps of concern are those that contain material from the ash ponds, and (2) the work that Duke is required to perform under the order as to those seeps. Let me first note that the attached draft accepts nearly all of DWR ??s recent changes: the only deletions from the wording of the last version you sent are to specify that: ? Duke provide average flows (and not necessarily monthly average flows, which may not apply to some of the ephemeral and episodic seeps [See Par. 39.c. (p. 16), par. 40.c. (p. 17), par. 57.c. (p. 26) and par. 58.c. (p. 27)] ? the testing applies to surface water discharges, not sheet flow or other non-point-source surface water discharges [Par. 41.a. (p. 18)] The primary new language is contained in par. 40 (p. 17) and par. 58 (pp. 26 & 27), although that language is now different between Asheville and Riverbend, based on our understanding of the concerns/issues with respect to the two plants. For Asheville [par. 40 (p. 17)], the new language adds the specific requirement that Duke will perform wetland delineations to locate the seeps at the plant; the draft also adds inclusive language ( ??including, but not limited to ? ) as to seeps that might be located there. For Riverbend [par. 58 (pp. 26 & 27)], the new language indicates that, for any seep that are thought not to reflect discharges from the lagoon and thus not covered, Duke is required to provide DWR with the basis for such belief, including hydrological data or water quality testing information. This would allow Duke the opportunity to demonstrate to DWR ??s satisfaction that a seep is not downstream of the ash ponds, such that its discharge does not contain material from the ash ponds as shown by water quality testing or groundwater flow data. The only other suggested addition is the word surface water standards [Par. 41.d. (p. 18)].
??surface ?
to clarify that Riverbend seeps are being tested based on violations of
Duke believes that the parties are not in disagreement about any of these matters (or any of the many others in the draft consent order that we have previously agreed on) and that the attached draft reflects an accurate description of what it needs (and intends) to do to provide the necessary information about the seeps. Duke would support the submittal of the attached draft order to Judge Ridgeway for his consideration. Please call if you would like to discuss these changes this afternoon. Charles Bio Hunton and Williams
vCard
Charles Case Partner [email protected] Hunton & Williams LLP 421 Fayetteville Street Suite 1400 Raleigh, NC 27601 Direct: 919.899.3045 Cell: 919.349.0811 Bberry: 919.744.0119 Fax: 919.899.3213 www.hunton.com
This communication is confidential and is intended to be privileged pursuant to applicable law. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this message in error, please notify Hunton & Williams LLP immediately by telephone (877-374-4937) and by electronic mail to: [email protected] and then delete this message and all copies and backups thereof.
From: Cooper, Kathy [mailto:[email protected]] Sent: Wednesday , September 25, 2013 6:27 PM T o: Case, Charles D. Cc: Laton, Don; LeVeaux, A nita; Oliver, Jane; Presnell, Lacy ([email protected]) Subject: RE: DWR Revisions to Proposed C onsent Order ENFORC EMENT C ONFIDENTIAL & 401 PRIV ILEGED SETTLEMENT COM M U N I C A T I O N
Charles, After we returned to the office, I had this additional change to paragraphs 39 and 40 from the Asheville Regional Office DWR Staff. The changes were made this morning but I did not see the e-mail until about 30 minutes ago. The changes to paragraphs 40 and 41 were made for purposes of requiring assessment of seeps/surface water features excluded under the former draft language. These changes ?? mirror ?? those for the Riverbend (paragraphs 57 & 58) site so requirements are similar between the two facilities. Hopefully this will clear up the miscommunication on the seeps issue.
4_28_2014
If not, we will call you tomorrow morning.
Page 2
Thanks, Kathy Cooper Kathryn Jones Cooper Special Deputy Attorney General Water and Land Section Environmental Division signature
Post Office Box 629 Raleigh, NC 27602-0629 (919) 716-6600 (main telephone number) (919) 716-6960 (direct dial) (919) 716-6766 (fax) [email protected] From: Cooper, Kathy Sent: Wednesday , September 25, 2013 7:31 A M T o: Case, Charles D. ([email protected]); Hanchey, Matt ([email protected]); Kemp, Daniel ([email protected]); Garry [email protected] Cc: Laton, Don; LeVeaux, A nita; Oliver, Jane; Presnell, Lacy ([email protected]); Osborne, Jay L ([email protected]) Subject: DWR Revisions to Proposed C onsent Order ENFORCEMENT C O N F IDENTIA L & 401 PRIV ILEGED SETTLEMENT C O M M U N I C A T I O N
Charles, After our site visit yesterday to the Asheville Plant, which included a hike in the wetlands area along the French Broad River, we discussed additional revisions with DWR staff last evening. Based on our discussions last night, I revised the Proposed Consent Order as follows: 1. 2. 3.
No Change to Paragraph 13 a. Opening sentence in Paragraph 40 modified b/c DWR viewed the removed clause limited the scope of the seeps. Footnote to Paragraph 42 e. has been modified.
Redline and Clean versions are attached. The change to Paragraph 40 necessitated a change to the signature page and eliminated the previous last page. Call me at (919) 522-9275 this morning if this change presents a problem for Duke or in you getting the signatures today. Thanks, Kathy Cooper
Kathryn Jones Cooper Special Deputy Attorney General Water and Land Section Environmental Division signature
Post Office Box 629 Raleigh, NC 27602-0629 (919) 716-6600 (main telephone number) (919) 716-6960 (direct dial) (919) 716-6766 (fax) [email protected]
Based on our discussions this evening after the site visit to the Asheville Plant, I have revised the Proposed Consent Order as follows: 1. 2. 3.
No Change to Paragraph 13 a. Opening sentence in Paragraph 40 modified. Footnote to Paragraph 42 e. has been modified.
Redline and Clean versions are attached. Please let me know in the morning (9/25) if these changes are acceptable. If you have any additional changes please send them to me tomorrow morning as well. Thanks, Kathy Kathryn Jones Cooper Special Deputy Attorney General Water and Land Section Environmental Division signature
Post Office Box 629 Raleigh, NC 27602-0629 (919) 716-6600 (main telephone number) (919) 716-6960 (direct dial) (919) 716-6766 (fax) [email protected]
4_28_2014
From: Case,_Charles_D. To: =?utf-8?Q?Cooper _Kathy?= Date: 9/27/2013 4:03:14 PM Subject: RE:_DWR_Revisions_to_Proposed_Consent_Order_ENFORCEMENT_CONFIDENTIAL_&_401_PRIVILEGED_SET TLEMENT_COMMUNICA Attachments: Draft_Consent_Order_-_Asheville_Riverbend_-_Final_47188674_16-c.DOCX Redline_HW_US_47188674_v12_and_HW_US_47188674_v16-c.pdf
Kathy, Your email and our conversations have been helpful in trying to clarify the reasons behind the last set of changes. We spent a significant part of yesterday with Duke personnel analyzing those changes and working on ways that would address DWR ??s concerns while retaining the necessary elements to clarify that (1) the seeps of concern are those that contain material from the ash ponds, and (2) the work that Duke is required to perform under the order as to those seeps. Let me first note that the attached draft accepts nearly all of DWR ??s recent changes: the only deletions from the wording of the last version you sent are to specify that: ? Duke provide average flows (and not necessarily monthly average flows, which may not apply to some of the ephemeral and episodic seeps [See Par. 39.c. (p. 16), par. 40.c. (p. 17), par. 57.c. (p. 26) and par. 58.c. (p. 27)] ? the testing applies to surface water discharges, not sheet flow or other non-point-source surface water discharges [Par. 41.a. (p. 18)] The primary new language is contained in par. 40 (p. 17) and par. 58 (pp. 26 & 27), although that language is now different between Asheville and Riverbend, based on our understanding of the concerns/issues with respect to the two plants. For Asheville [par. 40 (p. 17)], the new language adds the specific requirement that Duke will perform wetland delineations to locate the seeps at the plant; the draft also adds inclusive language ( ??including, but not limited to ? ) as to seeps that might be located there. For Riverbend [par. 58 (pp. 26 & 27)], the new language indicates that, for any seep that are thought not to reflect discharges from the lagoon and thus not covered, Duke is required to provide DWR with the basis for such belief, including hydrological data or water quality testing information. This would allow Duke the opportunity to demonstrate to DWR ??s satisfaction that a seep is not downstream of the ash ponds, such that its discharge does not contain material from the ash ponds as shown by water quality testing or groundwater flow data. The only other suggested addition is the word surface water standards [Par. 41.d. (p. 18)].
??surface ?
to clarify that Riverbend seeps are being tested based on violations of
Duke believes that the parties are not in disagreement about any of these matters (or any of the many others in the draft consent order that we have previously agreed on) and that the attached draft reflects an accurate description of what it needs (and intends) to do to provide the necessary information about the seeps. Duke would support the submittal of the attached draft order to Judge Ridgeway for his consideration. Please call if you would like to discuss these changes this afternoon. Charles Bio Hunton and Williams
vCard
Charles Case Partner [email protected] Hunton & Williams LLP 421 Fayetteville Street Suite 1400 Raleigh, NC 27601 Direct: 919.899.3045 Cell: 919.349.0811 Bberry: 919.744.0119 Fax: 919.899.3213 www.hunton.com
This communication is confidential and is intended to be privileged pursuant to applicable law. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this message in error, please notify Hunton & Williams LLP immediately by telephone (877-374-4937) and by electronic mail to: [email protected] and then delete this message and all copies and backups thereof.
From: Cooper, Kathy [mailto:[email protected]] Sent: Wednesday , September 25, 2013 6:27 PM T o: Case, Charles D. Cc: Laton, Don; LeVeaux, A nita; Oliver, Jane; Presnell, Lacy ([email protected]) Subject: RE: DWR Revisions to Proposed C onsent Order ENFORC EMENT C ONFIDENTIAL & 401 PRIV ILEGED SETTLEMENT COM M U N I C A T I O N
Charles, After we returned to the office, I had this additional change to paragraphs 39 and 40 from the Asheville Regional Office DWR Staff. The changes were made this morning but I did not see the e-mail until about 30 minutes ago. The changes to paragraphs 40 and 41 were made for purposes of requiring assessment of seeps/surface water features excluded under the former draft language. These changes ?? mirror ?? those for the Riverbend (paragraphs 57 & 58) site so requirements are similar between the two facilities. Hopefully this will clear up the miscommunication on the seeps issue.
4_28_2014
If not, we will call you tomorrow morning.
Page 2
Thanks, Kathy Cooper Kathryn Jones Cooper Special Deputy Attorney General Water and Land Section Environmental Division signature
Post Office Box 629 Raleigh, NC 27602-0629 (919) 716-6600 (main telephone number) (919) 716-6960 (direct dial) (919) 716-6766 (fax) [email protected] From: Cooper, Kathy Sent: Wednesday , September 25, 2013 7:31 A M T o: Case, Charles D. ([email protected]); Hanchey, Matt ([email protected]); Kemp, Daniel ([email protected]); Garry [email protected] Cc: Laton, Don; LeVeaux, A nita; Oliver, Jane; Presnell, Lacy ([email protected]); Osborne, Jay L ([email protected]) Subject: DWR Revisions to Proposed C onsent Order ENFORCEMENT C O N F IDENTIA L & 401 PRIV ILEGED SETTLEMENT C O M M U N I C A T I O N
Charles, After our site visit yesterday to the Asheville Plant, which included a hike in the wetlands area along the French Broad River, we discussed additional revisions with DWR staff last evening. Based on our discussions last night, I revised the Proposed Consent Order as follows: 1. 2. 3.
No Change to Paragraph 13 a. Opening sentence in Paragraph 40 modified b/c DWR viewed the removed clause limited the scope of the seeps. Footnote to Paragraph 42 e. has been modified.
Redline and Clean versions are attached. The change to Paragraph 40 necessitated a change to the signature page and eliminated the previous last page. Call me at (919) 522-9275 this morning if this change presents a problem for Duke or in you getting the signatures today. Thanks, Kathy Cooper
Kathryn Jones Cooper Special Deputy Attorney General Water and Land Section Environmental Division signature
Post Office Box 629 Raleigh, NC 27602-0629 (919) 716-6600 (main telephone number) (919) 716-6960 (direct dial) (919) 716-6766 (fax) [email protected]
Based on our discussions this evening after the site visit to the Asheville Plant, I have revised the Proposed Consent Order as follows: 1. 2. 3.
No Change to Paragraph 13 a. Opening sentence in Paragraph 40 modified. Footnote to Paragraph 42 e. has been modified.
Redline and Clean versions are attached. Please let me know in the morning (9/25) if these changes are acceptable. If you have any additional changes please send them to me tomorrow morning as well. Thanks, Kathy Kathryn Jones Cooper Special Deputy Attorney General Water and Land Section Environmental Division signature
Post Office Box 629 Raleigh, NC 27602-0629 (919) 716-6600 (main telephone number) (919) 716-6960 (direct dial) (919) 716-6766 (fax) [email protected]
4_28_2014
