Duke asks federal judge to throw out coal ash lawsuit in North Carolina

The Duke Energy Carolinas LLC unit of Duke Energy (NYSE: DUK) on Jan. 6 asked a federal judge to dismiss a September 2014 lawsuit brought by environmental groups over coal ash issues on the contention that this is a matter being handled in the state of North Carolina’s legal system.

“This is a ‘citizen suit’ against Duke Energy involving its operations at the Buck Steam Station (‘Buck’) in Rowan County, North Carolina,” said the Jan. 6 filing at the U.S. District Court for the Middle District of North Carolina. “Duke Energy began operating Buck in 1926. Buck was Duke Energy’s first large capacity coal generating plant and was the plant that literally brought electricity to this part of North Carolina. The plant supplied electricity to area homes, businesses and government entities for nearly 90 years before its retirement in 2013.

“As part of Buck’s operation after the passage of the Clean Water Act (‘CWA’), Duke Energy consistently applied for and obtained from North Carolina’s Division of Water Resources (‘DWR’) National Pollutant Discharge Elimination System (‘NPDES’) permits under the CWA. The most recent NPDES permit for Buck was renewed and reissued to Duke Energy in 2012.

“The Yadkin Riverkeeper, Inc. and Waterkeeper Alliance, Inc. (the ‘Riverkeepers’) brought this federal action for alleged violations of the CWA and of Buck’s NPDES permit. This lawsuit is nothing more than a duplication of an enforcement suit filed by the North Carolina Department of Environment and Natural Resources (‘DENR’) on August 16, 2013 – more than a year before this case – and which has been pending in the courts of North Carolina; indeed, Plaintiffs intervened and are participating in this enforcement action. The enforcement action alleges both violations of the Clean Water Act, Buck’s NPDES permit and North Carolina groundwater standards.

“Citizen suits under the CWA are prohibited where a governmental enforcement agency is already diligently prosecuting the alleged violations. To maneuver around this jurisdictional bar, the Riverkeepers assert their claims seek compliance with different CWA and NPDES permit violations than DENR’s enforcement action and are therefore properly before the Court. The Riverkeepers do not contend that DENR’s enforcement action is not diligent; only that DENR is not bringing all of the claims that the Riverkeepers want. In fact, DENR’s enforcement action arguably requests even broader relief than the Riverkeepers’ Complaint. Furthermore, DENR has begun an aggressive administrative campaign to increase and strengthen Buck’s NPDES permit requirements, while North Carolina’s Governor and Legislature have likewise taken action addressing the allegations that form the basis of the Riverkeepers’ claims. The Riverkeepers’ case in this Court is a misuse of the CWA’s citizen suit power, procedurally improper, and is based upon a fundamental misunderstanding of how the CWA operates and applies to the Buck plant.”

DENR in its state action asserts claims for alleged violation of Buck’s NPDES permit and North Carolina law via unpermitted and unauthorized seeps or discharges from Buck’s coal ash disposal ponds.

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.