On behalf of the Roanoke River Basin Association, the Southern Environmental Law Center said April 11 that it sent notice that day of its intent to sue Duke Energy (NYSE: DUK) to stop it from allegedly violating the federal Clean Water Act by capping in place millions of tons of leaking coal ash and to stop its ostensibly illegal water pollution at its Mayo facility in Roxboro, North Carolina.
The North Carolina Department of Environmental Quality (DEQ) has proposed a “Low Priority” classification for Duke’s Mayo facility that could allow Duke Energy to cap the ash in the unlined, leaking pit, burying 70 feet of groundwater and a stretch of Crutchfield Branch stream in coal ash forever, said the center. At present, Duke Energy is also illegally polluting groundwater, Mayo Lake, Crutchfield Branch, and the Roanoke River Basin with coal ash pollution, it added.
“Person County, Mayo Lake, and the Roanoke Basin deserve to be protected from Duke Energy’s coal ash pollution, both now and in the future,” said Frank Holleman, senior attorney for the Southern Environmental Law Center. “By ‘capping in place,’ Duke Energy will obliterate part of the Roanoke River Basin and Person County groundwater with millions of tons of coal ash. Duke Energy’s current operation of the leaking Mayo coal ash pit and any plans to bury North Carolina’s water resources in coal ash violate the Clean Water Act.”
Duke Energy has 6.9 million tons of coal ash at Mayo, stored in an unlined, leaking pit on the banks of Mayo Lake and on top of Crutchfield Branch, said the center. It added that Duke Energy’s operations are currently polluting Crutchfield Branch, and capping the ash in place would pollute Crutchfield Branch and the Roanoke River Basin forever.
At a recent public hearing, Person County citizens made it clear that the Mayo coal ash should be excavated from the unlined pit. The federal Clean Water Act takes precedence over any DEQ rating and prohibits capping the ash in the groundwater and Crutchfield Branch, said the center.
Under the federal Clean Water Act, citizens groups must give the polluter, DEQ, and the U.S. Environmental Protection Agency 60 days of notice of their intent to enforce the Clean Water Act. After the passage of 60 days, the citizens group may file suit in U.S. District Court.
SELC noted that it has filed five other federal Clean Water Act suits against Duke Energy for its coal ash pollution in North Carolina. For four of those sites, Duke Energy has agreed to excavate the ash and move it to dry, lined storage.
The Mayo site is also the subject of a state court enforcement action against Duke Energy, in which the Roanoke River Basin Association is a party. In that suit, DEQ has taken no steps to require Duke Energy to remove the polluting coal ash from the Mayo unlined pit, the center said. In October 2015, the U.S. District Court for the Middle District of North Carolina ruled that it could not conclude that DEQ was diligently prosecuting that suit or pursuing the suit in good faith to require compliance with the Clean Water Act.
The single-unit, 727-MW Mayo Plant is located near Roxboro, N.C. It began commercial operation in 1983. Various citizen upates posted to the Duke website for Mayo say that testing shows no issues with leakage from the site, with levels of pollutants found in nearby water wells being at about the same levels as is normally found with local geology.