North Carolina courts let enviro groups into Duke coal ash lawsuits

The Southern Environmental Law Center said Nov. 18 that groups it represents have won standing in two North Carolina courts to pursue coal ash claims against units of Duke Energy (NYSE:DUK).

The Mecklenburg County Superior Court ruled that the Catawba Riverkeeper, which is represented by the center, will be a full party in a civil prosecution brought by the state of North Carolina against Duke Energy for coal ash pollution at its Allen and Marshall plants on Lakes Wylie and Norman. Duke Energy opposed the participation of the Southern Environmental Law Center and the Riverkeeper.

“Because of this ruling, we will be at the table working to protect these important lakes and drinking water reservoirs from Duke Energy’s toxic coal ash pollution,” said Frank Holleman, senior attorney at the Southern Environmental Law Center.

Duke Energy stores millions of tons of coal ash in unlined lagoons on the banks of both Lake Wylie and Lake Norman on the Catawba River, the center said. It claimed that these lagoons contaminate groundwater with toxic substances, and that the coal ash lagoon at Allen on Lake Wylie is leaking contaminated water into the drinking water reservoir.

The North Carolina Department of the Environment and Natural Resources has determined that Duke Energy is violating North Carolina clean water laws due to coal ash pollution at its plants on both lakes, the center noted.

North Carolina has also brought a civil prosecution against Duke Energy for its alleged coal ash pollution of Mountain Island Lake, a third drinking water reservoir on the Catawba River. Previously, the court also allowed the Riverkeeper to participate in that civil prosecution, again over the objection of Duke Energy.

Wake County court also lets environmental groups into state case

Also, in a related matter, the center said that the Wake County Superior Court ruled that conservation groups may participate as full parties in the enforcement action brought by North Carolina against Duke Energy Progress for coal ash pollution at the Sutton Plant near Wilmington, NC. The center sought to intervene in the state enforcement action on behalf of Cape Fear River Watch, the Sierra Club, and Waterkeeper Alliance. Duke Energy Progress opposed the participation of the conservation groups.

“This ruling ensures that community interests in clean drinking water and a healthy Sutton Lake will be represented at the table,” said Holleman.

In June 2013, the center sent the North Carolina Department of the Environment and Natural Resources and Duke Energy Progress a 60-Day Notice under the Clean Water Act that it would bring suit to enforce the act against the utility for its coal ash pollution of groundwater and Sutton Lake if DENR did not. At the end of the 60-Day period in August, DENR filed the pending state enforcement action against Duke Energy Progress.

Earlier this fall, the local water utility announced a deal to install a water line to protect residents near the Sutton facility whose drinking water supply wells are threatened by Duke Energy Progress’s coal ash pollution, the center said. As part of that deal, Duke Energy Progress has insisted that 11,000 acres of groundwater – 17 square miles – be placed off limits to the public water system forever.  The water system’s existing drinking water wells would be abandoned.

The center said it has also filed suit in federal court against Duke Energy Progress on behalf of the conservation groups to clean up the coal ash pollution of groundwater and Sutton Lake. That suit sets out claims for violations of the Clean Water Act that North Carolina did not bring in its state civil prosecution.

Incidentally, the Sutton coal plant is due to be retired at the end of this year.

Duke Energy outlines various levels of coal ash litigation

Said Duke Energy Nov. 8 Form 10-Q filing about these matters: “In the first quarter of 2013, environmental organizations sent notices of intent to sue to Duke Energy Carolinas and Duke Energy Progress related to alleged groundwater violations and Clean Water Act violations from coal ash ponds at two of their coal-fired power plants in North Carolina. The North Carolina [DENR] filed enforcement actions against Duke Energy Carolinas and Duke Energy Progress alleging violations of water discharge permits and North Carolina groundwater standards. The case against Duke Energy Carolinas was filed in Mecklenburg County Superior Court. The case against Duke Energy Progress was filed in Wake County Superior Court. On October 4, 2013, Duke Energy Carolinas, Duke Energy Progress and DENR negotiated a proposed consent order. The consent order assesses civil penalties (approximately $100,000 in the aggregate) and imposes a compliance schedule requiring Duke Energy Carolinas and Duke Energy Progress to undertake monitoring and data collection activities toward making appropriate corrective action to address any substantiated violations.”

On Aug. 16, the DENR filed an enforcement action against the remaining Duke Energy Carolinas and Duke Energy Progress plants in North Carolina, alleging violations of the Clean Water Act and of North Carolina groundwater standards. The case against Duke Energy Carolinas was filed in Mecklenburg County Superior Court. The case against Duke Energy Progress was filed in Wake County Superior Court. Both of these cases have been assigned to the judge handling the enforcement actions discussed above.

On Oct. 11, the court held a hearing on the Catawba Riverkeeper motion to intervene in the Duke Energy Carolinas case and the Southern Environmental Law Center’s motion to intervene in the Duke Energy Progress case. Duke Energy Progress and Duke Energy Carolinas anticipate negotiating a consent decree with DENR for these additional plants.

As for federal court:

  • On June 11, Catawba Riverkeeper filed in the U.S. District Court for the Western District of North Carolina. The lawsuit contends the state enforcement action discussed above does not adequately address the issues raised in its notice of intent to sue. On Aug. 1, Duke Energy Carolinas filed a motion to dismiss this case in light of North Carolina’s diligent prosecution in the state enforcement actions, the Form 10-Q noted.
  • On Sept. 12, Cape Fear River Watch, the Sierra Club and Waterkeeper Alliance filed a citizen suit in the U.S. District Court for the Eastern District of North Carolina. They allege unpermitted discharges to surface water and groundwater violations. Duke Energy Progress is evaluating strategies related to this lawsuit, said the Duke Energy Form 10-Q.
About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.