Duke Energy files lawsuit against environmentalists over NC coal power plant

North Carolina-based Duke Energy sued an environmental group last week, asking a federal judge to rule that one of the company’s coal-fired power plants is not polluting the groundwater in Person County, N.C.

The Roanoke River Basin Association accused Duke Energy last month of breaking the law by not disposing of its coal ash properly, and it’s polluting water near the Mayo power plant in Person County. But Duke Energy says it’s following the Clean Water Act and state laws at the plant in Roxboro, N.C.

In a federal civil lawsuit filed May 11 in Danville, Va., Duke seeks action against the Roanoke River Basin Association, “an advocacy group that unlawfully seeks to impose, through initiation of a civil action under unlawful interpretation of the Clean Water Act.”

Specifically, Duke alleged that the Roanoke River Basin Association is wrong when it says the power plant is violating the Clean Water Act and polluting the groundwater in Person County.

“RRBA is wrong,” the lawsuit says. “Duke Energy has not violated the (Clean Water Act) or the terms of the applicable permit, as RRBA has alleged. First, Duke Energy does not make unpermitted discharges to ‘waters of the United States,’ as RRBA claims.”

Duke argues in the lawsuit that it disposes of the pollutants in a “wastewater treatment system created by Duke Energy, with the full knowledge and approval of the State of North Carolina.”

RRBA seeks to impose retroactive liability upon Duke Energy, the lawsuit asserts, liability that would increase with each passing day.

Duke Energy’s lawsuit seeks judicial judgment on whether the power plant operates in compliance with its permit and the Clean Water Act and whether RRBA may pursue claims it has alleged against Duke.

This isn’t the first time Duke Energy has sparred with environmental groups over its power plants and coal ash policies.

The Southern Environmental Law Center took Duke Energy to federal court on behalf of the Roanoke River Basin Association to dispute the company’s alleged pollution at the Mayo and Roxboro power plants.

The SELC called Duke Energy’s lawsuit against RRBA “a desperate attempt to avoid the consequences of its illegal coal ash water pollution in North Carolina.”

The lawsuit is “baseless” and is an “unprecedented legal maneuver” that attempts to avoid having North Carolina federal courts address Duke Energy’s “violations of the Clean Water Act at its Roxboro coal ash lagoons in Person County” according to a news release from the SELC.

“Duke Energy’s coal ash pollution is dumped directly into two water bodies located in North Carolina – Hyco Lake and Sargents River – not in Virginia, and its coal-fired Roxboro plant is located in North Carolina, not Virginia,” the SELC release said.

“Duke Energy continues to dump coal ash pollution from Roxboro into the Dan River and Roanoke River Basins – the same river systems where Duke Energy had its catastrophic Dan River coal ash spill,” said Frank Holleman, senior attorney for the Southern Environmental Law Center. “Duke Energy’s coal ash pollution is contaminating our clean water and drinking water sources for communities in both North Carolina and Virginia. It’s time for Duke Energy to do the right thing and move its leaking coal ash to dry, lined storage where it will not pollute our water.”

Under the Clean Water Act, the SELC and RRBA filed a lawsuit on May 16 against Duke Energy in North Carolina over what the groups say is coal ash pollution at the Roxboro power plant.

“Duke Energy is scared that it will be held responsible in North Carolina for its coal ash pollution, so it has fled across the state line,” said Frank Holleman, senior attorney at the Southern Environmental Law Center. “Duke Energy needs to clean up its coal ash mess, and not create a legal mess by bringing a childish lawsuit.”

The Clean Water Act specifically requires any lawsuit regarding a Clean Water Act violation to be brought where the source of the pollution is located, the SELC said in its news release.

The Roxboro coal ash pollution is in in Person County, N.C., in the District of the United States District Court for the Middle District of North Carolina, according to the SELC. But that United States District Court rejected previous attempts by Duke Energy to dismiss Clean Water Act suits against alleged pollution at its Mayo facility, also in Person County, and its Buck facility, in Salisbury.

“Duke Energy cannot run to another state, because it knows that it will be held accountable for its coal ash pollution in the courts of North Carolina,” said Mike Pucci, President of the Roanoke River Basin Association. “The people of North Carolina and Virginia expect Duke Energy to act like a responsible adult, not like a law breaker desperately trying to avoid facing up to the consequences of its wrongful activities.”

The SELC also planned to bring an enforcement action in court against what it calls a planned “open dump” of coal ash by Duke at the Mayo facility.

In November 2016, Duke Energy posted a public notice that it planned “to leave over 6 million tons of coal ash at Mayo in an unlined, leaking pit sitting in 70 feet of groundwater near Mayo Lake,” according to the SELC. The ash is polluting groundwater, the lake and a nearby stream, the SELC wrote.

The Mayo power plant is two counties east of Duke’s 2014 ash spill into the Dan river, which triggered a state-ordered shutdown of all its ash ponds. The Dan is part of the Roanoke River basin.

But Duke Energy says the SELC’s claims are not consistent with the federal coal ash rule and advocates are asking for extreme measures.

“Excavating all ash basins, whether science calls for it or not, is the most extreme and disruptive approach that brings with it decades of impacts to the environment and communities,” said Duke Energy spokeswoman Erin Culbert.

Coal ash basins are sometimes excavated, and other times they are capped in place in accordance with the U.S. Environmental Protection Agency to prevent contamination. In either scenario, water is removed from each basin to protect water quality in the nearby lake or river, according to Duke Energy.

North Carolina’s Department of Environmental Quality sued Duke over groundwater contamination and illegal seepage from ash ponds at Mayo and other power plants in 2013.

The SELC is disputing Duke Energy’s practices on several fronts. The first was under the Clean Water Act, and that case now is pending in federal court. Duke Energy was notified of the second last month, which alleges violations under the Coal Combustion Residuals Rule, said Kathleen Sullivan, SELC spokeswoman.

The Clean Water Act lawsuit deals with an alleged ongoing discharge of pollution at the site and the new lawsuit deals with the coal ash sitting in what the SELC said is an unlined pit, sitting in groundwater which it will continue to pollute.

The Roanoke River Basin Association is a nonprofit organization based in Danville, Va. that advocates for responsible use, preservation and enhancement of the Roanoke River system of lakes and streams.

Abbie Bennett: 919-836-5768; @AbbieRBennett