State appeals coal ash cleanup order

State Attorney General Roy Cooper filed notice Monday that the state will appeal a ruling requiring Duke Energy to immediately stop contamination seeping from its coal ash pits.

Posted 11:09 p.m. Apr 7, 2014 — Updated 3:34 p.m. Apr 8, 2014

Laura Leslie

RALEIGH, N.C. — State Attorney General Roy Cooper filed notice Monday that the state will appeal a court ruling requiring Duke Energy to take immediate action to stop contamination seeping from its coal ash pits at 13 sites around the state.

Environmental advocates who filed the lawsuit say that's inconsistent with promises by state leaders to enforce state environmental laws against Duke.

The state's Department of Environment and Natural Resources has acknowledged it's known for years that many, if not all, of the unlined pits are leaching heavy metals and other contaminants into nearby groundwater but said it was working to determine the extent of the contamination and negotiate a clean-up plan with the utility.

In 2012, the state's Environmental Management Commission – a regulatory panel appointed by state lawmakers and the governor – ruled that North Carolina regulations for monitoring coal ash ponds do not require Duke to take any immediate action if tests of groundwater near ash ponds show contamination.

The Southern Environmental Law Center, representing the groups Cape Fear Riverwatch, French Broad Riverkeeper, Sierra Club and Waterkeepers Alliance, took the EMC ruling to court, arguing the panel had misinterpreted state law.

On March 6, Superior Court Judge Paul Ridgeway agreed with the environmentalists, ruling that the EMC had applied the wrong section of state regulations to the coal ash sites and ordering Duke to take immediate action to stop the contamination.

Duke asked Ridgeway to stay his ruling pending an appeal, but the judge refused in a March 20 ruling.

On Monday, Cooper filed noticethat the state would also appeal Ridgeway's ruling on behalf of the Environmental Management Commission.

It's hardly unusual for the Attorney General's Office to defend state regulatory bodies in legal cases. In fact, it's one of the office's primary functions.

However, SELC attorney D.J. Gerkin insists the appeal is inconsistent with the state's recent decision to abandon a controversial settlement with Duke over its coal ash pollution. The consent order would not have required Duke to stop its contamination, prompting critics of the deal to accuse DENR of allowing the utility to break the law.

DENR announced March 21 that it would drop the deal in the wake of Ridgeway's ruling.

"Just a week after the state publicly abandoned its sweetheart deal with Duke and promised to enforce the law, it has appealed a judicial ruling that confirmed the state's legal authority to enforce a real solution for coal ash contamination," Gerkin said in a statement. "We’re disappointed that this administration remains so determined to delay through litigation rather than move forward to stop ongoing pollution of North Carolina's rivers, lakes and groundwater."

DENR has required Duke to produce comprehensive emergency and clean-up plans for all 33 of its coal ash lagoons in North Carolina but has not given the utility a timeline.

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