Raleigh, N.C. — 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.
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.