Lawyer who defended Duke Energy's coal ash dumps now advising state regulators on new rules
A lawyer advising North Carolina's environmental agency on rewriting rules governing cleanup at Duke Energy's coal ash dumps previously represented the electricity company on the same issue.
Craig Bromby was hired in June as an assistant general counsel at the North Carolina Department of Environment and Natural Resources. He retired in March as a partner at the Raleigh office of Hunton & Williams, where his corporate clients included Duke.
Bromby assisted the North Carolina Environmental Management Commission this week as it considered key tweaks to state groundwater regulations that will impact his former client.
The changes are prompted by the state's new coal ash law passed in response to the massive Feb. 2 spill at a Duke dump in Eden, which coated 70 miles of the Dan River in gray sludge. Duke has 33 such dumps across the state, all of which must be removed or capped by 2029 under the new law. The byproduct of burning coal to generate electricity, the ash contains numerous toxic heavy metals, including lead, arsenic and mercury.
The relationship between Duke and state officials has been under close scrutiny since the spill, including an ongoing federal criminal investigation.
Gov. Pat McCrory worked at Duke for 29 years before retiring, and environmental groups have criticized decisions by his administration that they contend improperly favored the company.
McCrory, a Republican, appoints members of the Environmental Management Commission, the panel that interprets state environmental laws and writes the rules governing how they are enforced. The governor has repeatedly denied that Duke has received special treatment.
Bromby sat in the front row at a committee meeting Wednesday where rules changes were discussed. On several occasions, state regulators turned to consult with him before suggesting specific legal language for the revised rules.
Bromby, 65, said he saw no ethical conflict between his new role and his past representation of Duke.
"If there was an issue with it, I would think it would be more Duke Energy's issue because I'm now here, as opposed to anyone else's issue because I previously did work for Duke," said Bromby, who makes an annual state salary of $105,000.
Drew Elliot, spokesman for the state environmental agency, said Bromby has operated "under a legal wall of separation" from issues directly affecting Duke's coal ash operations. Elliot said the groundwater rules under consideration by the environmental commission are a "ubiquitous issue that applies to many kinds of facilities in North Carolina and utilities represent only a tiny fraction."
Bromby is at least the second lawyer hired by the state agency over the last year who previously represented Duke. AP reported in March that Mark Calloway of Charlotte was retained to help coordinate the agency's response to the nearly two dozen federal subpoenas received after the Dan River spill. Calloway defended Duke during a 2004 federal investigation into the company's accounting practices.
Under rules governing conflicts of interest, lawyers representing state agencies must get a written waiver from any prior private-sector clients whose interests are "materially adverse" to those of the government. Duke Energy spokeswoman Paige Sheehan said Bromby has not sought such a waiver.
"We don't have a view into the scope of work he's doing for DENR," Sheehan said.
North Carolina's environmental commission and enforcement agency are currently involved in several lawsuits and enforcement actions involving Duke and its ash dumps.
Among the key issues under litigation is what the state agency can require a company to do when groundwater contamination from a waste pit crosses into a neighboring property or pollutes rivers and lakes.
The Southern Environmental Law Center sued the commission last year on behalf of a coalition of environmental groups challenging the way groundwater regulations were being applied to coal ash dumps.
Duke intervened in the lawsuit to support the state's existing legal interpretation, which has allowed the company to study the pollution leaking from its dumps without being forced to clean it up. Court records show Bromby represented the company in the case.
Wake County Superior Court Judge Paul Ridgeway ruled in March that where pollution had spread beyond Duke's property line at a coal ash site, the utility is required to take "immediate action" to fix the problem. Both Duke and the Environmental Management Commission are appealing Ridgeway's ruling.
The rules changes under consideration would strike the language requiring "immediate action, potentially rendering the judge's ruling moot.
Southern Environmental Law Center attorney D.J. Gerken said it's "bewildering" that Bromby could go directly from arguing for Duke's favored interpretation of environmental laws to advising the officials rewriting those rules "to match the arguments he was making in court."
Deborah Rhode, a law professor at Stanford University, said there are issues raised by Bromby's work helping to redraft the groundwater rules.
"It's not just the concern that he might be violating the confidences of Duke, it may be that he's slanting his judgment in favor of Duke in terms of writing the rules," said Rhode, an expert on legal ethics. "I think the citizens of the state might see a problem with that."
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Weiss reported from Charlotte.
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