Judge: Duke Energy must halt coal ash pond contamination

Posted March 6, 2014

— Duke Energy must take "immediate action" to stop toxins leaking from coal ash ponds at its North Carolina power plants and develop a plan to clean up contaminated groundwater at the sites, a Superior Court judge ruled Thursday.

Environmental groups hailed the ruling as a first step toward possibly cleaning up the 31 ash ponds at Duke's 14 current or retired coal-fired power plants across the state.

"The ruling leaves no doubt: Duke Energy is past due on its obligation to eliminate the sources of groundwater contamination – its unlined coal ash pits – and the state has both the authority and a duty to require action now,” D.J. Gerken, senior attorney at the Southern Environmental Law Center, which represented the four environmental groups in the case, said in a statement. “This ruling enforces a common-sense requirement in existing law. Before you can clean up contaminated groundwater, you first must stop the source of the contamination – in this case, Duke’s unlined coal ash pits.”

Duke spokeswoman Paige Sheehan said the company is "considering this ruling as we take another look at our management of coal ash basins."

Likewise, the state Department of Environment and Natural Resources is "carefully reviewing the court's decision," spokesman Jamie Kritzer said.

Meanwhile, DENR on Thursday ordered Duke to repair the earthen dams around two coal ash ponds in Rutherford County that inspectors said didn't meet state requirements.

The Attorney General's Office said it's too early to say whether the state would appeal the ruling.

The legal action by Cape Fear River Watch, the Sierra Club, Waterkeeper Alliance and Western North Carolina Alliance started more than a year before a Feb. 2 coal ash spill at a defunct Duke plant in Eden fouled up to 70 miles of the Dan River.

Coal ash Coal ash ponds located across NC

Since the spill, Duke's operations have come under intense scrutiny, as has DENR's oversight of the Charlotte-based utility. Environmentalists have charged that the state has failed to enforce regulations on Duke and has hindered outside efforts to force the company to clean up its ash ponds. A federal grand jury meeting in Raleigh in two weeks is expected to examine any ties between DENR staffers and Duke.

In the case decided Thursday, the four environmental groups sought a court review of a 2012 state Environmental Management Commission interpretation of coal ash pond monitoring regulations. The commission had ruled that Duke didn't need to take any immediate action if tests of groundwater near ash ponds showed contamination.

Judge Paul Ridgeway, in a highly technical 17-page ruling, reversed the EMC's findings, saying that the commission and Duke were applying a more general section of a statute regarding contamination cleanup instead of a more specific provision that addressed groundwater contamination.

"The Court concludes that it is plainly erroneous and inconsistent with the regulation for the EMC to interpret the 2L Rule to require or permit anything other than 'immediate action to eliminate the source or sources of contamination,'” Ridgeway wrote.

DENR has acknowledged that some of Duke's ash ponds are leaking toxic chemicals into nearby groundwater, but the agency has waited to act while it determines the extent of the contamination and negotiates with the utility on a plan to clean up the ponds.

"Duke's toxic legacy in North Carolina needs to end, and the North Carolina Department of Environment and Natural Resources won’t do its part to protect our water,” Kelly Martin of the Sierra Club said in a statement. “Clean water is our right, and if Duke Energy won’t do the right thing even after the Dan River coal ash spill, we’ll keep fighting to hold them accountable.”

State lawmakers have said they plan to introduce legislation this year requiring Duke to clean up its coal ash ponds, but a similar effort failed five years ago.

Rep. Pricey Harrison, D-Guilford, who sponsored the 2009 bill, said Duke and the former Progress Energy – now a Duke subisidiary – killed the proposal by telling lawmakers that spending money on ash ponds would lead to higher energy prices.

"They are the power industry, and that sort of hits the pocketbooks of our constituents back home, and (Duke) can rally them immediately," Harrison said, adding "there's a significant amount of campaign money that's going into my colleagues' coffers from this industry."

Duke is a major political donor – to both parties. It wrote off a $10 million loan for the 2012 Democratic National Convention in Charlotte and has provided more than $1 million directly and indirectly to the campaign of Republican Gov. Pat McCrory, who used to work at Duke.

Republican legislative leaders say Duke's clout won't be enough this time around. Rep. Chuck McGrady, R-Henderson, said plans to set a deadline to get rid of the ponds is quickly gaining support.

"Coal ash is just a byproduct. It's a cost of doing business, and for too long we have not addressed that cost," McGrady said. "I'm pretty optimistic that we can get on the same page and come up with a solution."

In addition to requiring steps to halt the groundwater contamination, Ridgeway's ruling also said Duke would have to devise a plan to clean the tainted groundwater.

The judge, however, upheld the EMC's determination that no action was needed unless contamination had spread beyond the designated boundaries of the ash ponds.


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  • Jackson Smith Mar 7, 2014
    user avatar

    Did Judge Ridgeway mean they need to stop their former pollution or the pollution that is happening now. Amazing that they need to be told this.

  • Greg Boop Mar 7, 2014
    user avatar

    View quoted thread

    They are a REGULATED MONOPOLY - Duke Energy is required to provide power to the state. In return they have no competition in their operating areas, and must agree to state oversight on rates, etc.

  • Jeremy Gilchrist Mar 7, 2014
    user avatar

    DENR is a corporate lapdog with McCrory and his cronies at the helm. This is why it took a judge to act. As for environmental terror, I believe Duke is the one guilty of that with their pollution.

  • rcherry132004 Mar 7, 2014

    dragonslayer Mar 6, 10:00 p.m.
    If I owned Duke Energy I would shut off all the power plants in North Carolina for 30 days. Maybe a month with no electricity could show the public what these enviro terrorist really want us to live like

    Last time I checked, In the 17 and 1800's people did live without electricity. BUT NO ONE CAN LIVE WITHOUT CLEAN WATER. Your argument makes no sense because no one has asked them to turn their power off, only to clean up the mess they have made.

  • Lisa Marie Fields Mar 7, 2014
    user avatar

    And guess who is going to pay for this....

  • Michael Iantosca Mar 7, 2014
    user avatar

    Look, our fine State government is protecting the people - you know, the only 'persons' they recognize - 'Corporate Persons' that the US Supreme Court recognized in epic 1886 case of Santa Clara RR - we lost our democratic republic with that ruling and became a plutocracy - yet the average citizen hasn't a clue about that fact.

  • Glenda Hightower Mar 6, 2014
    user avatar

    Don't understand what Duke is talking about when their rep. says they will "consider" a Superior Court judge's ruling. What's to consider. And the State doesn't know whether it's going to fight this ruling? What is going on? Duke made/is making this mess. Why would the State want to fight a ruling that says, Duke, clean up your mess. And as far as rate hikes, don't we have a utilities commission who would have to approve such hikes? It looks like the State and Duke are about to stick it to "us" for "their" inept, illegal management of their waste products.

  • dragonslayer Mar 6, 2014

    If I owned Duke Energy I would shut off all the power plants in North Carolina for 30 days. Maybe a month with no electricity could show the public what these enviro terrorist really want us to live like

  • Rebelyell55 Mar 6, 2014

    "The Attorney General's Office said it's too early to say whether the state would appeal the ruling.".....What is this? Did the state sue or was the state being sued? Was the DENR part of the sue? I missed that if it was. No order by the Judge for DENR to do anything from what I've read, who would been represented by the State. Is someone trying to throw out AG into this?

  • rcherry132004 Mar 6, 2014

    It's been over a month since the spill!
    1. I guess they are waiting until it washes away?
    2. How exactly do you remove arsenic, chromium, etc. from the river water? It's pretty much in there forever now.
    3. Wait until the fracking starts, then you will really see what the reduction of our environmental laws has really done! But hey, we can rely on businesses to regulate themselves, right?
    4. Is there anyone in our government who hasn't accepted money from Duke? Guess it's the only way to afford to run for office.