DENR, Duke Energy, environmentalists will try to settle coal ash lawsuits

After an acrimonious start, Duke Energy, Gov. Pat McCrory’s administration and a group of environmental organizations agreed in court Monday to try to resolve lawsuits state environmental regulators brought against the company over leaking ponds at its coal-powered plants.

The consensus came in a daylong hearing in Wake County Superior Court where the utility and environmentalists were in unusual agreement that the state Department of Environment and Natural Resources was hindering a potential settlement. After a lunch break, a deputy attorney general representing the agency committed to try to work things out before Oct. 30.

DENR was reluctant to sign off on the agreement between Duke Energy and attorneys for the Southern Environmental Law Center without ensuring its concerns were addressed. In some instances, the agency wanted tougher restrictions on Duke than the agreement proposed, such as stiffer fines if the utility fails to comply with the final court order, and retaining the authority to pursue additional legal action.

DENR wanted any cleanup of the ponds to go through the process laid out in a state law last year regulating coal ash, which will determine which sites must be cleaned up up first. The state sued Duke Energy alleging groundwater and surface water violations at its 14 coal-fired power plants, after the environmentalists’ attorneys gave notice that they would sue if the state didn’t.

Duke and environmentalists’ attorneys argued the outcome would be the same whether there’s a settlement or they go through the regulatory review process: All of the coal ash will be excavated, moved away from rivers and put into lined pits.

Duke attorney James Cooney told Judge Paul Ridgeway that the proposed resolution, involving half of the 14 ash basins in the state, would allow the utility to stop spending money on litigation and put it into removing coal ash in an environmentally responsible manner. He challenged what he said was deputy attorney general Anita LeVeaux’s implication that the company was trying to do anything less than clean up the ponds.

“For DENR to come here and say the company is somehow trying to get away with something is just astonishing,” Cooney said. “I question whether DENR has been paying attention.”

Frank Holleman with the Southern Environmental Law Center said the unlikely alliance with Duke Energy was an “historic opportunity” to resolve half the pending lawsuits and DENR was the only obstacle to achieving that.

“We should be finding ways to foster and expedite the resolution,” Holleman told the judge. “The arguments aren’t about environmental protection but about protecting our bureaucracy.”

After the hearing, Crystal Feldman, communications director for the environmental agency, said Duke Energy can excavate and close any of its coal plants if it obtains the permits. But DENR’s job is to carry out the Coal Ash Management Act, which requires scientific analysis and an opportunity for the public to weigh in first, she said.

The new law required four of the plants to be cleaned up and closed first: the Dan River station in Eden; the L.V. Sutton Electric Plant in Wilmington; the Riverbend Steam Station in Gaston County; and the Asheville Steam Electric Generating Plant. Duke Energy and the environmentalists want to add three plants — Cape Fear in Chatham County, H.F. Lee in Wayne County and Weatherspoon in Lumberton — for immediate closure, untangling them from the lawsuits, which DENR opposed.

Cleanup at the remaining seven plants is considered less urgent.

Ridgeway said he was inclined to grant the motion on those three plants, but told all sides to work toward a resolution of all seven sites.

The Coal Ash Management Plan, which the General Assembly put into place after the massive spill of coal ash into the Dan River in Eden in 2014, requires the agency to propose a list of priorities for closing the plants by Dec. 31. The law also requires DENR to consider costs when determining which plants to close.

LeVeaux argued in a motion: “Due to longstanding practices of ash disposal at defendant’s facilities, the closure of defendant's impoundments is expected to take many years to complete. Closure and remediation of environmental impacts will be tremendously costly. Recognizing the significant expenditure of financial resources, CAMA (Coal Ash Management Act) provides an analysis of economic impacts and eventual costs to the consumer.”

An earlier version of this story erroneously said the deadline for DENR to prioritize coal plant closures is Oct. 31. The deadline is Dec. 31.

This story was originally published September 14, 2015 at 5:33 PM with the headline "DENR, Duke Energy, environmentalists will try to settle coal ash lawsuits."