Wake judge questions 2015 settlement between Duke Energy and NC

A Wake County judge on Friday questioned the legality of part of an agreement between the state’s environmental agency and Duke Energy reached last fall to settle complaints about years of groundwater contamination.

Judge Paul Ridgeway presided over the afternoon hearing in which environmental organizations argued that a state administrative law judge overstepped his authority when he approved a $7 million settlement last year between the N.C. Department of Environmental Quality and Duke.

“This order has language that in my view goes beyond resolving a penalties case,” Ridgeway told attorneys on Friday.

The environmental law attorneys contended the agreement involving a $7 million fine against Duke also prevented the state from enforcing groundwater pollution laws at the utility’s 14 leaking coal ash sites. The environmental lawyers called it a sweetheart deal. Not only was the fine less than a third of the initial $25 million the state had planned to impose, they said, the agreement covered groundwater remediation plans at sites that were not part of the case.

Ridgeway agreed on Friday that Phil Berger Jr., the administrative law judge who presided over a hearing on that agreement, touched on issues in his order that were not part of his purview, particularly the portion that touched on how pollution would be removed from sites that are part of other pending court cases.

Ridgeway, who has presided over other Duke coal-ash cases, said he thought any settlement in a long-running case was “a positive step” but was troubled.

“I do find that the circumstances of this agreement — and quite frankly the insistence of clinging to the language of this agreement — is disturbing,” Ridgeway said. “I have to suspect that there’s some ulterior motive.”

Ridgeway’s decision is unlikely to hold up the $7 million fine, but it could have an impact on how Duke and the state collaborate on groundwater remediation at other North Carolina sites.

It was unclear on Friday afternoon what the next steps would be for Duke and the state. But they said they planned to ask Berger to amend the 2015 settlement order.

A spokeswoman for DEQ said “the settlement explicitly provides for the remediation of groundwater under North Carolina’s groundwater standards as included in the coal ash management law. To read the document as in some way circumventing the requirement to clean up groundwater is absurd.”

Duke said in a statement that it was “interested in resolving legal matters, allowing the company to continue to focus on safely closing ash basins. SELC needs to take yes for an answer, rather than seeking another legal podium to tie this issue up in court.”

Anne Blythe: 919-836-4948, @AnneBlythe1

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