Enviro groups appeal Duke’s ‘sweetheart’ coal ash settlement with North Carolina

In a legal challenge filed Oct. 13, conservation groups across North Carolina asked the state Superior Court to overturn approval of a settlement between Duke Energy (NYSE: DUK) and the North Carolina. Department of Environmental Quality over the utility’s coal ash pollution throughout the state.

Duke had initially appealed a monetary penalty at a single site, but the state’s resulting settlement agreement abandons enforcement of groundwater pollution laws at every one of Duke Energy’s fourteen leaking coal ash sites where lawsuits are pending and even provides immunity for future violations, the Southern Environmental Law Center said in an Oct. 13 statement.

“The administration twisted a simple penalty dispute into a bad settlement that reneges on its promise to clean up every leaking coal ash pit across North Carolina and does nothing to clean up groundwater at ten sites where coal ash threatens our waterways and communities,” said D.J. Gerken, managing attorney at the Southern Environmental Law Center, which represents the conservation groups in this challenge. “DEQ cut Duke Energy an amazing midnight deal—no real cleanup for the low, low price of $500,000 a power plant including multiple leaking coal ash pits, Duke Energy bought amnesty for all past, present and future violations of groundwater law across North Carolina, including at sites that were not even part of this case.”  

In September, the state drew criticism by asking the Superior Court to stop its own coal ash enforcement cases and not order cleanups at three Duke Energy sites. The court concluded that clean ups should proceed at those sites over DEQ’s objection and that the remaining cases would go forward, the center noted. Last year, the state was forced to abandon a widely criticized settlement proposal that would have allowed Duke Energy to study its coal ash pollution with no cleanup requirements.

“This latest sweetheart settlement shows what happens when Duke Energy and state bureaucrats get in a room together without public scrutiny,” said Frank Holleman, senior attorney at the Southern Environmental Law Center. “Citizen action has produced cleanup commitments at seven dangerous, polluting coal ash sites in North Carolina so far, in spite of the state and Duke trying for years to block citizens from protecting our rivers, lakes, and drinking water. That’s why we are asking the court to ensure those efforts can continue.”

Duke Energy said on Sept. 29 that it had reached a settlement with the North Carolina Department of Environmental Quality (NCDEQ) regarding alleged groundwater violations at the company’s retired L.V. Sutton Steam Electric Plant in Wilmington and the company’s other North Carolina facilities. In March 2015, NCDEQ levied an unprecedented $25.1 million fine against Duke Energy for alleged groundwater violations at Sutton. The company appealed the fine to the Office of Administrative Hearings, citing a number of instances where evidence demonstrates that the regulator acted contrary to state law, the agency’s own rules, policies and procedures and the longstanding interpretation of the regulations.

Under the terms of the agreement, Duke said that NCDEQ recognizes that it did not follow its own policy and procedure and did not allow the company the opportunity to perform groundwater assessments and corrective actions before issuing notices of violations and fines.

Duke Energy will pay $7 million to resolve all alleged groundwater violations at its 14 North Carolina facilities. In addition, the settlement reiterates the company’s June 2015 commitment to move forward with plans to remediate groundwater near the coal ash basins at Sutton.

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.