The state’s environmental regulatory agency will not bring legal action against Duke Energy over new allegations of pollution at three plants where coal ash is stored in basins, including the Cape Fear station in Chatham County.
The decision clears the way for environmentalists to sue in federal court to enforce clean-water laws that they contend the state agency is failing to pursue aggressively enough.
The N.C. Department of Environment and Natural Resources contends the new allegations of violations at the Cape Fear plant, Buck Steam Station in Rowan County and H.F. Lee plant in Wayne County plants are already addressed in lawsuits it previously filed, and through more intensive enforcement action after the February coal ash spill into the Dan River.
In a letter dated Thursday, an agency deputy secretary, Donald R. van der Vaart, notified the Southern Environmental Law Center, Duke Energy and the U.S. Environmental Protection Agency that it has been diligently addressing the problem of what to do about the 33 ponds at 14 sites, where stored coal ash has been seeping into groundwater and posing a threat to nearby rivers and streams.
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The letter emphasizes DENR’s position that it wasn’t until the McCrory administration took over in 2013 that any significant steps were taken to address the problem.
“Within 90 days of coming into office, under the leadership of Secretary John E. Skvarla and through the vigorous efforts of DENR engineers and scientists, this administration has undertaken enforcement action to address the long-ignored environmental problems associated with coal ash ponds in the state of North Carolina,” the letter says.
But the problem hasn’t been entirely ignored. Duke Energy began monitoring groundwater near the ponds in 2007, and routinely shared the information with the state. In 2011, DENR made that monitoring a formal part of the permit process. The company has said most of the instances where groundwater standards are not met pose no health risk.
The utility is planning on closing all of the coal ash ponds. Left undecided is what to do with the material, and how to pay for the closures.
“We are moving as quickly as possible to close ash basins in a way that protects the environment and water,” Duke spokeswoman Paige Sheehan said Thursday.
The issue of how vigilant DENR has been is important because the federal Clean Water Act allows citizen groups to make the case that a judge should enforce the law if state regulators aren’t performing their duty. That’s exactly what the Southern Environmental Law Center, representing several advocacy groups, contends.
The SELC gave notice in July that it would sue in federal court over violations at these three plants unless an agreement could be reached to avoid protracted litigation.
The SELC also filed notices in 2013, prompting the state agency to file four lawsuits against Duke Energy. DENR and Duke negotiated a settlement that didn’t require the ash basins to be cleaned up but did require the utility to test groundwater and drinking water and document unauthorized discharges.
Following public concern over the Dan River spill, the disclosure that a federal grand jury was looking into DENR’s regulation of Duke, and a state judge’s ruling undercutting the way the agency had interpreted groundwater regulations, DENR withdrew the proposed settlement.
Since Duke has denied legal liability, legal action could continue for a long time.
Thursday’s letter from DENR goes on at length about the steps the state has taken to deal with the problem in addition to filing lawsuits, including conducting more intensive inspections, re-examining permits, proposing the state’s first coal-ash regulatory scheme, and working with the EPA.
SELC attorney Frank Holleman called the letter “political hot air.”
“They never did anything until we made them do it,” Holleman said. “Then they only took action to try to block our enforcement action. Since they’re under federal criminal grand jury investigation they have hopped into action. What they have done is write a bunch of tickets – they have yet to clean up one drop of coal ash or impose a single fine.”
He said the letter fails to address the issues SELC raised about seeping coal ash and unsafe basin dams. The group plans to sue in federal court next week, he said.