Tom My apologies for not copying you on this. Kathy sent us these ...
From: To: Cc: Subject: Date: Attachments:
Watts, Debra Reeder, Tom Zimmerman, Jay; Matthews, Matt; Poupart, Jeff FW: Duke Injunction Cases; Draft Amended Complaints to add 6 facilities to each complaint; Attorney Client Privileged and Attorney Work Product Tuesday, August 06, 2013 5:10:33 PM All Facilities Ash Pond Exceedances with Violations Highlighted 2010 to 7-16-2013rev.xlsx Draft Duke Energy Carolinas Amended Injunction Complaint COMBINED.docx Draft Duke Energy Progress Second Amended Injunction Complaint COMBINED.docx
Tom My apologies for not copying you on this. Kathy sent us these documents July 19th. Surface Water sent their comments in a few days ago, and ours went in today (see below). APS and SWPS met this morning to determine recommended penalties (I was actually typing this up when you stopped by). Jay can expand on this tomorrow, but thought I’d give you a quick update. Debra J. Watts, Supervisor Groundwater Protection Unit Aquifer Protection Section 919-807-6338 From: Watts, Debra Sent: Tuesday, August 06, 2013 3:51 PM To: 'Cooper, Kathy' Cc: Zimmerman, Jay; Matthews, Matt; Poupart, Jeff; Smith, Eric; Wilcox, Betty; Laton, Don; LeVeaux, Anita; Oliver, Jane; Osborne, Jay L; Watts, Debra Subject: RE: Duke Injunction Cases; Draft Amended Complaints to add 6 facilities to each complaint; Attorney Client Privileged and Attorney Work Product
Kathy Attached is the Aquifer Protection comments for the Duke Energy Carolinas and the Duke Energy Progress Documents you forwarded to us. Please note the following comments in regard to these documents: 1. We did not review the Asheville and Riverbend Sections since they have already been filed with the court. We assume you will insert the same language you used previously. Please let us know if this is not true. 2. Due to the multiple number of people who authored the versions sent, there are numerous formatting issues with how the document is written (e.g. numbering, how the violations are stated, etc.) We did not focus on the formatting, but tried to ensure that the statements were updated and technically correct. We did, however, try to be consistent in how we corrected the facts.
3.
4.
5.
Effective August 1, 2013, the Division of Water Quality (DWQ) merged with the Division of Water Resources (DWR) and is now part of the DWR. In the documents, past actions are still listed as DWQ, but current actions refer to DWR. There will probably need to be some documentation for the name change – not sure what you will need. Attached is an excel sheet that lists all the exceedances with the violations highlighted. Data was retrieved from our data base BIMS and our cut off for data received and entered was July 17, 2013. This is the data we will base our penalties on. The excel sheet is tabbed so that each facility has its own exceedance/violation list. The violations are totaled on the last tab. Jay had a couple of questions for one of the Regions on some of the language they submitted. They have not gotten back with us, so the language is still highlighted with a comment/question. I will send you an update as soon as possible.
Please let me know If you have any questions. Thanks! Debra From: Cooper, Kathy [mailto:[email protected]] Sent: Friday, July 19, 2013 5:23 PM To: Matthews, Matt; Zimmerman, Jay Cc: Poupart, Jeff; Smith, Eric; Watts, Debra; Laton, Don; LeVeaux, Anita; Oliver, Jane; Davidson, Landon; Presnell, Lacy; Osborne, Jay L Subject: Duke Injunction Cases; Draft Amended Complaints to add 6 facilities to each complaint; Attorney Client Privileged and Attorney Work Product
All, Attached are the draft amended complaints to add the six Duke Energy Carolinas Facilities to the Riverbend Complaint and to add the six Duke Energy Progress Facilities to the Asheville Complaint. Please review the documents and let us know the changes we should make after the regional offices go out and inspect the facilities, especially where we have said “upon information and belief” in the documents. Those sections are highlighted. Also, we need more current information on the groundwater exceedances as well. If you take us up to July 31st, that would be great. Please let Don, Anita Jane and I know if you have any questions. Thanks, Kathy Cooper Kathryn Jones Cooper Special Deputy Attorney General Water and Land Section Environmental Division
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: Friday, July 19, 2013 11:16 AM To: 'Presnell, Lacy'; Zimmerman, Jay; Osborne, Jay L Cc: Matthews, Matt; Poupart, Jeff; Smith, Eric; Watts, Debra; Laton, Don; LeVeaux, Anita; Oliver, Jane; Davidson, Landon Subject: RE: State of NC ex. rel. DENR, DWQ v. Duke Energy Carolinas; Attorney Client Privileged and Attorney Work Product
Lacy, We have conferred with Duke’s counsel about the clarification of Draft Consent Order Concerning Paragraph 36. Here is the language that we would like to be posted on DWQ’s website: For clarification purposes, the there is a typographical error in the Draft Consent Order in the first sentence in paragraph 36 which will be corrected in the final document. The sentence will be rewritten to substitute ¶33 for ¶34 to read as follows: 36. No later than 120 days of the DWQ determination of naturally occurring concentrations, Duke Energy Progress shall submit a report evaluating whether or not substances in compliance boundary wells (other than those addressed in ¶ 33 above) exceed the groundwater standards. If that language looks OK to you all, can someone in DWQ get it posted and let me know when it has been posted so I can respond to DJ Gerken? Thanks, Kathy Cooper Kathryn Jones Cooper Special Deputy Attorney General Water and Land Section Environmental Division
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: Presnell, Lacy [mailto:[email protected]] Sent: Thursday, July 18, 2013 3:48 PM To: Cooper, Kathy; Zimmerman, Jay; Osborne, Jay L Cc: Matthews, Matt; Poupart, Jeff; Smith, Eric; Watts, Debra; Laton, Don; LeVeaux, Anita; Oliver, Jane; Davidson, Landon Subject: RE: State of NC ex. rel. DENR, DWQ v. Duke Energy Carolinas; Attorney Client Privileged and Attorney Work Product
My inclination is to consult with Charles Case, and, if Duke concurs, post a simple note on the DWQ website about the correction. Let me know if you think a different approach is better. Lacy M. Presnell III General Counsel N.C. Department of Environment and Natural Resources Telephone: 919-707-8616 Mailing Address: 1601 Mail Service Center Raleigh, NC 27699-1601 Physical Address: 217 W. Jones Street Raleigh, NC 27603
E-mail correspondence to and from this address may be subject to the North Carolina Public Records Law and may be disclosed to third parties.
From: Cooper, Kathy [mailto:[email protected]] Sent: Thursday, July 18, 2013 12:29 PM To: Zimmerman, Jay; Presnell, Lacy; Osborne, Jay L Cc: Matthews, Matt; Poupart, Jeff; Smith, Eric; Watts, Debra; Laton, Don; LeVeaux, Anita; Oliver, Jane; Davidson, Landon Subject: RE: State of NC ex. rel. DENR, DWQ v. Duke Energy Carolinas; Attorney Client Privileged and Attorney Work Product
Thanks Jay. Lacy, do you think we should put a note on the website acknowledging that change? We (Don, Anita, Jane and I) can draft something at our meeting at 2 pm today. Thanks, Kathy Cooper
Kathryn Jones Cooper Special Deputy Attorney General Water and Land Section Environmental Division
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: Zimmerman, Jay [mailto:[email protected]] Sent: Thursday, July 18, 2013 12:17 PM To: Cooper, Kathy; Presnell, Lacy; Osborne, Jay L Cc: Matthews, Matt; Poupart, Jeff; Smith, Eric; Watts, Debra; Laton, Don; LeVeaux, Anita; Oliver, Jane; Davidson, Landon Subject: RE: State of NC ex. rel. DENR, DWQ v. Duke Energy Carolinas
Good catch by Mr. Gerken although it appears he may have also incorrectly referenced a paragraph. When Mr. Gerken references ‘whether the third sentence in ¶ 35 of the proposed consent,
which currently reads “(other than those addressed in ¶ 34),” is a typographical error that instead should cross-reference ¶33.’, I believe he is in error. I believe he meant to say “the third line in ¶ 36” . And yes, the reference should be to paragraph 33 and not 34. Jay
S. Jay Zimmerman, L.G. Chief, Aquifer Protection Section Division of Water Quality 1636 Mail Service Center, Raleigh, NC 27699-1636 Ph# (919) 807-6351, Fax# (919)807-6480
web page: http://portal.ncdenr.org/web/wq/aps Email correspondence to and from this address is subject to the North Carolina Public Records Law and may be disclosed to third parties unless the content is exempt by statute or other regulation.
From: Cooper, Kathy [mailto:[email protected]] Sent: Thursday, July 18, 2013 11:18 AM To: Presnell, Lacy; Osborne, Jay L Cc: Zimmerman, Jay; Matthews, Matt; Poupart, Jeff; Smith, Eric; Watts, Debra; Laton, Don; LeVeaux, Anita; Oliver, Jane Subject: FW: State of NC ex. rel. DENR, DWQ v. Duke Energy Carolinas
Everyone, DJ Gerken called yesterday afternoon with a question the Draft Consent Order. I asked him to put his question in writing to me so that we could adequately research it and possibly modify the draft or
put a statement on the website and contact counsel in the cases to make any necessary clarifications. Please see his issue below; review the paragraphs he cites and let me know if we need to clarify/modify the Draft Consent Order. We traded so many versions on the last few days that we may have inadvertently cited to the wrong paragraph (Paragraph 34) in Paragraph 35 as to what DWQ would do with the data concerning background info. Let me know what you think. Thanks, Kathy Cooper Kathryn Jones Cooper Special Deputy Attorney General Water and Land Section Environmental Division
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: DJ Gerken [mailto:[email protected]] Sent: Wednesday, July 17, 2013 6:11 PM To: Cooper, Kathy Subject: RE: State of NC ex. rel. DENR, DWQ v. Duke Energy Carolinas
Kathy – Thanks for taking time to speak with me today. As we discussed on the phone briefly, I am seeking a clarification about the text of the proposed consent agreement. At its simplest, my question is whether the third sentence in ¶ 35 of the proposed consent, which currently reads “(other than those addressed in ¶ 34),” is a typographical error that instead should cross-reference ¶33. As I understand the proposed agreement, ¶33 applies to the groundwater exceedences described in ¶¶83-89 of the amended complaint, which the state has alleged are “violations of the groundwater standards.” I think I understand ¶¶34-37 of the proposed agreement to deal with the exceedences alleged in ¶¶ 90-98 of the amended complaint, which the state alleged it was “working with the Defendant to determine if these exceedences are naturally occurring.” If my understanding of the general structure is right, the statement in ¶35 that it excludes the exceedences addressed in ¶34 would seem to be a typographical error. It
would fit more logically if ¶35 was instead excluding the exceedences covered by ¶33. I would like to get clarification on that point, if that is possible, as soon as practicable as I don’t want to burden the process by raising an illusory concern. I am of course happy to reach out to Duke’s counsel with the same question – or for you to do so if you prefer – I just thought it easier to start with a conversation. Thank you DJ
DJ Gerken Senior Attorney Southern Environmental Law Center [email protected] 22 S. Pack Square, Suite 700 Asheville, North Carolina 28801-3494 Tel: (828) 258-2023 Fax: (828) 258-2024
Watts, Debra Reeder, Tom Zimmerman, Jay; Matthews, Matt; Poupart, Jeff FW: Duke Injunction Cases; Draft Amended Complaints to add 6 facilities to each complaint; Attorney Client Privileged and Attorney Work Product Tuesday, August 06, 2013 5:10:33 PM All Facilities Ash Pond Exceedances with Violations Highlighted 2010 to 7-16-2013rev.xlsx Draft Duke Energy Carolinas Amended Injunction Complaint COMBINED.docx Draft Duke Energy Progress Second Amended Injunction Complaint COMBINED.docx
Tom My apologies for not copying you on this. Kathy sent us these documents July 19th. Surface Water sent their comments in a few days ago, and ours went in today (see below). APS and SWPS met this morning to determine recommended penalties (I was actually typing this up when you stopped by). Jay can expand on this tomorrow, but thought I’d give you a quick update. Debra J. Watts, Supervisor Groundwater Protection Unit Aquifer Protection Section 919-807-6338 From: Watts, Debra Sent: Tuesday, August 06, 2013 3:51 PM To: 'Cooper, Kathy' Cc: Zimmerman, Jay; Matthews, Matt; Poupart, Jeff; Smith, Eric; Wilcox, Betty; Laton, Don; LeVeaux, Anita; Oliver, Jane; Osborne, Jay L; Watts, Debra Subject: RE: Duke Injunction Cases; Draft Amended Complaints to add 6 facilities to each complaint; Attorney Client Privileged and Attorney Work Product
Kathy Attached is the Aquifer Protection comments for the Duke Energy Carolinas and the Duke Energy Progress Documents you forwarded to us. Please note the following comments in regard to these documents: 1. We did not review the Asheville and Riverbend Sections since they have already been filed with the court. We assume you will insert the same language you used previously. Please let us know if this is not true. 2. Due to the multiple number of people who authored the versions sent, there are numerous formatting issues with how the document is written (e.g. numbering, how the violations are stated, etc.) We did not focus on the formatting, but tried to ensure that the statements were updated and technically correct. We did, however, try to be consistent in how we corrected the facts.
3.
4.
5.
Effective August 1, 2013, the Division of Water Quality (DWQ) merged with the Division of Water Resources (DWR) and is now part of the DWR. In the documents, past actions are still listed as DWQ, but current actions refer to DWR. There will probably need to be some documentation for the name change – not sure what you will need. Attached is an excel sheet that lists all the exceedances with the violations highlighted. Data was retrieved from our data base BIMS and our cut off for data received and entered was July 17, 2013. This is the data we will base our penalties on. The excel sheet is tabbed so that each facility has its own exceedance/violation list. The violations are totaled on the last tab. Jay had a couple of questions for one of the Regions on some of the language they submitted. They have not gotten back with us, so the language is still highlighted with a comment/question. I will send you an update as soon as possible.
Please let me know If you have any questions. Thanks! Debra From: Cooper, Kathy [mailto:[email protected]] Sent: Friday, July 19, 2013 5:23 PM To: Matthews, Matt; Zimmerman, Jay Cc: Poupart, Jeff; Smith, Eric; Watts, Debra; Laton, Don; LeVeaux, Anita; Oliver, Jane; Davidson, Landon; Presnell, Lacy; Osborne, Jay L Subject: Duke Injunction Cases; Draft Amended Complaints to add 6 facilities to each complaint; Attorney Client Privileged and Attorney Work Product
All, Attached are the draft amended complaints to add the six Duke Energy Carolinas Facilities to the Riverbend Complaint and to add the six Duke Energy Progress Facilities to the Asheville Complaint. Please review the documents and let us know the changes we should make after the regional offices go out and inspect the facilities, especially where we have said “upon information and belief” in the documents. Those sections are highlighted. Also, we need more current information on the groundwater exceedances as well. If you take us up to July 31st, that would be great. Please let Don, Anita Jane and I know if you have any questions. Thanks, Kathy Cooper Kathryn Jones Cooper Special Deputy Attorney General Water and Land Section Environmental Division
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: Friday, July 19, 2013 11:16 AM To: 'Presnell, Lacy'; Zimmerman, Jay; Osborne, Jay L Cc: Matthews, Matt; Poupart, Jeff; Smith, Eric; Watts, Debra; Laton, Don; LeVeaux, Anita; Oliver, Jane; Davidson, Landon Subject: RE: State of NC ex. rel. DENR, DWQ v. Duke Energy Carolinas; Attorney Client Privileged and Attorney Work Product
Lacy, We have conferred with Duke’s counsel about the clarification of Draft Consent Order Concerning Paragraph 36. Here is the language that we would like to be posted on DWQ’s website: For clarification purposes, the there is a typographical error in the Draft Consent Order in the first sentence in paragraph 36 which will be corrected in the final document. The sentence will be rewritten to substitute ¶33 for ¶34 to read as follows: 36. No later than 120 days of the DWQ determination of naturally occurring concentrations, Duke Energy Progress shall submit a report evaluating whether or not substances in compliance boundary wells (other than those addressed in ¶ 33 above) exceed the groundwater standards. If that language looks OK to you all, can someone in DWQ get it posted and let me know when it has been posted so I can respond to DJ Gerken? Thanks, Kathy Cooper Kathryn Jones Cooper Special Deputy Attorney General Water and Land Section Environmental Division
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: Presnell, Lacy [mailto:[email protected]] Sent: Thursday, July 18, 2013 3:48 PM To: Cooper, Kathy; Zimmerman, Jay; Osborne, Jay L Cc: Matthews, Matt; Poupart, Jeff; Smith, Eric; Watts, Debra; Laton, Don; LeVeaux, Anita; Oliver, Jane; Davidson, Landon Subject: RE: State of NC ex. rel. DENR, DWQ v. Duke Energy Carolinas; Attorney Client Privileged and Attorney Work Product
My inclination is to consult with Charles Case, and, if Duke concurs, post a simple note on the DWQ website about the correction. Let me know if you think a different approach is better. Lacy M. Presnell III General Counsel N.C. Department of Environment and Natural Resources Telephone: 919-707-8616 Mailing Address: 1601 Mail Service Center Raleigh, NC 27699-1601 Physical Address: 217 W. Jones Street Raleigh, NC 27603
E-mail correspondence to and from this address may be subject to the North Carolina Public Records Law and may be disclosed to third parties.
From: Cooper, Kathy [mailto:[email protected]] Sent: Thursday, July 18, 2013 12:29 PM To: Zimmerman, Jay; Presnell, Lacy; Osborne, Jay L Cc: Matthews, Matt; Poupart, Jeff; Smith, Eric; Watts, Debra; Laton, Don; LeVeaux, Anita; Oliver, Jane; Davidson, Landon Subject: RE: State of NC ex. rel. DENR, DWQ v. Duke Energy Carolinas; Attorney Client Privileged and Attorney Work Product
Thanks Jay. Lacy, do you think we should put a note on the website acknowledging that change? We (Don, Anita, Jane and I) can draft something at our meeting at 2 pm today. Thanks, Kathy Cooper
Kathryn Jones Cooper Special Deputy Attorney General Water and Land Section Environmental Division
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: Zimmerman, Jay [mailto:[email protected]] Sent: Thursday, July 18, 2013 12:17 PM To: Cooper, Kathy; Presnell, Lacy; Osborne, Jay L Cc: Matthews, Matt; Poupart, Jeff; Smith, Eric; Watts, Debra; Laton, Don; LeVeaux, Anita; Oliver, Jane; Davidson, Landon Subject: RE: State of NC ex. rel. DENR, DWQ v. Duke Energy Carolinas
Good catch by Mr. Gerken although it appears he may have also incorrectly referenced a paragraph. When Mr. Gerken references ‘whether the third sentence in ¶ 35 of the proposed consent,
which currently reads “(other than those addressed in ¶ 34),” is a typographical error that instead should cross-reference ¶33.’, I believe he is in error. I believe he meant to say “the third line in ¶ 36” . And yes, the reference should be to paragraph 33 and not 34. Jay
S. Jay Zimmerman, L.G. Chief, Aquifer Protection Section Division of Water Quality 1636 Mail Service Center, Raleigh, NC 27699-1636 Ph# (919) 807-6351, Fax# (919)807-6480
web page: http://portal.ncdenr.org/web/wq/aps Email correspondence to and from this address is subject to the North Carolina Public Records Law and may be disclosed to third parties unless the content is exempt by statute or other regulation.
From: Cooper, Kathy [mailto:[email protected]] Sent: Thursday, July 18, 2013 11:18 AM To: Presnell, Lacy; Osborne, Jay L Cc: Zimmerman, Jay; Matthews, Matt; Poupart, Jeff; Smith, Eric; Watts, Debra; Laton, Don; LeVeaux, Anita; Oliver, Jane Subject: FW: State of NC ex. rel. DENR, DWQ v. Duke Energy Carolinas
Everyone, DJ Gerken called yesterday afternoon with a question the Draft Consent Order. I asked him to put his question in writing to me so that we could adequately research it and possibly modify the draft or
put a statement on the website and contact counsel in the cases to make any necessary clarifications. Please see his issue below; review the paragraphs he cites and let me know if we need to clarify/modify the Draft Consent Order. We traded so many versions on the last few days that we may have inadvertently cited to the wrong paragraph (Paragraph 34) in Paragraph 35 as to what DWQ would do with the data concerning background info. Let me know what you think. Thanks, Kathy Cooper Kathryn Jones Cooper Special Deputy Attorney General Water and Land Section Environmental Division
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: DJ Gerken [mailto:[email protected]] Sent: Wednesday, July 17, 2013 6:11 PM To: Cooper, Kathy Subject: RE: State of NC ex. rel. DENR, DWQ v. Duke Energy Carolinas
Kathy – Thanks for taking time to speak with me today. As we discussed on the phone briefly, I am seeking a clarification about the text of the proposed consent agreement. At its simplest, my question is whether the third sentence in ¶ 35 of the proposed consent, which currently reads “(other than those addressed in ¶ 34),” is a typographical error that instead should cross-reference ¶33. As I understand the proposed agreement, ¶33 applies to the groundwater exceedences described in ¶¶83-89 of the amended complaint, which the state has alleged are “violations of the groundwater standards.” I think I understand ¶¶34-37 of the proposed agreement to deal with the exceedences alleged in ¶¶ 90-98 of the amended complaint, which the state alleged it was “working with the Defendant to determine if these exceedences are naturally occurring.” If my understanding of the general structure is right, the statement in ¶35 that it excludes the exceedences addressed in ¶34 would seem to be a typographical error. It
would fit more logically if ¶35 was instead excluding the exceedences covered by ¶33. I would like to get clarification on that point, if that is possible, as soon as practicable as I don’t want to burden the process by raising an illusory concern. I am of course happy to reach out to Duke’s counsel with the same question – or for you to do so if you prefer – I just thought it easier to start with a conversation. Thank you DJ
DJ Gerken Senior Attorney Southern Environmental Law Center [email protected] 22 S. Pack Square, Suite 700 Asheville, North Carolina 28801-3494 Tel: (828) 258-2023 Fax: (828) 258-2024
