Judge rules Duke must halt groundwater pollution at coal ash sites

ablythe@newsobserver.comMarch 6, 2014 

— After much debate over how to deal with coal-ash hazards at Duke Energy power plants in North Carolina, a Wake County Superior Court judge says the answer is to take “immediate” action.

Judge Paul Ridgeway issued a 17-page order on Thursday that seems to cut through years of dithering over the utility’s obligations and what authority the state has to order a prompt response to eliminate an environmental threat.

Exactly what that action should be was not specified.

The order came after environmental organizations challenged a 2012 ruling by the Environmental Management Commission regarding groundwater contamination at Duke plants that store coal ash in unlined ponds near North Carolina waterways.

Duke stores 106 million tons of ash in the state, 84 million tons of which soak in lagoons, while 22 million tons are are kept dry as fill material or in dry basins.

Environmentalists, buoyed by Thursday’s news, plan to use the order to call for the prompt removal of ash from Duke Energy’s 14 unlined pond sites across the state.

“Immediately means what the English language dictionary says – today, now,” declared Frank Holleman, senior attorney with the Southern Environmental Law Center, which represented environmental groups in the case.

Pressure on Duke to remove the toxic residue from its coal-fired plants has been rising since a Feb. 2 spill at one of the company’s plants dumped up to 39,000 tons of the pollutant into the Dan River.

Republican Gov. Pat McCrory, who worked at Duke for nearly three decades, has previously stated that the ash should be moved as a matter of public safety. But officials with the N.C. Department of Environment and Natural Resources have argued against a blanket remedy, saying simply removing the ash may not be the best approach at all sites. They’ve also resisted remedies that have the potential to tie the agency up in court for years.

An expensive undertaking

Removing the ash could be costly for Charlotte-based Duke, the nation’s largest utility. In South Carolina, where two utility companies have begun closing their wet ponds, a single lined landfill for dry storing 2.9 million tons is expected to cost $24.5 million.

Duke could appeal Ridgeway’s decision to the N.C. Court of Appeals. But no decision had been made by late Thursday.

“We’re considering this ruling as we take another look at our management of coal ash basins,” said Erin Culbert, a Duke spokeswoman.

A spokesman for DENR, the agency tasked with enforcing state environmental regulations, issued a statement after the ruling that put the blame on former Gov. Bev Perdue’s administration.

“Today’s action addresses a decision made in 2012 by the Environmental Management Commission based on interpretations made under the Perdue administration,” Drew Elliot, DENR spokesman, said in an email. “The judge found the 2012 interpretation is erroneous. DENR is carefully reviewing the court’s decision.”

Noelle Talley, spokeswoman for N.C. Attorney General Roy Cooper, said in a statement that his office is reviewing the ruling, too.

The challenge of the Environmental Management Commission decision that resulted in Thursday’s ruling was brought against Duke by the Cape Fear River Watch, Sierra Club, Waterkeeper Alliance and Western North Carolina Alliance.

Those organizations and others have been working since 2010 to close coal ash ponds scattered across the state. A massive ash spill in Tennessee in 2008 brought heightened scrutiny of the ponds by environmentalists and other safety organizations.

In North Carolina, organizations tried to force the cleanup through lawsuits filed under the federal Clean Water Act. DENR took over the complaints and filed four lawsuits against Duke over coal-ash contamination.

Hearings related to those cases are set for April in Wake County Superior Court before Ridgeway.

‘We now have clarity’

Environmentalists contend any settlements or remedies proposed between DENR and Duke should include a plan that calls for the immediate removal of the ash.

“It’s always been there that they have the authority to require this. We saw it in black and white in their own rules,” said D.J. Gerken, a managing attorney at the Southern Environmental Law Center. “With this ruling, we now have clarity on what is required by law.”

Staff writer Craig Jarvis contributed.

Blythe: 919-836-4948; Twitter: @AnneBlythe1

News & Observer is pleased to provide this opportunity to share information, experiences and observations about what's in the news. Some of the comments may be reprinted elsewhere in the site or in the newspaper. We encourage lively, open debate on the issues of the day, and ask that you refrain from profanity, hate speech, personal comments and remarks that are off point. Thank you for taking the time to offer your thoughts.

Commenting FAQs | Terms of Service