Conservation groups, residents challenge NC settlement with Duke Energy

Environmental regulators "gave away the store" to Duke Energy with a settlement that indemnifies the company for past and future coal ash pollution., conservation groups say.

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Goldsboro coal ash pond
Mark Binker
RALEIGH, N.C. — A Superior Court judge should do away with the state's $7 million settlement that "gave away the store" to Duke Energy, conservation groups and neighbors of electricity plants said Tuesday.

The Neuse Riverkeeper Foundation and seven other groups represented by the Southern Environmental Law Center asked the court to review and reject an agreement they say removes incentives for Duke to quickly clean up 14 ash basins and other coal ash dumping grounds around the state.

"I've never seen anything like this," SELC lawyer D.J. Gerkin said of the agreement, which he said grants the company "amnesty for all past, present and future violations of groundwater law across this state," including violations that have yet to be discovered.

Gerkin said the deal, announced to much fanfare last month, would slow the rate of coal ash cleanup.

"This settlement, which was based on the advice of legal counsel, including the Attorney General's Office, is the largest in state history and gets the state out of the courtroom and Duke into the field to clean up coal ash," Department of Environmental Quality spokeswoman Crystal Feldman said in an email to WRAL News.

Duke spokeswoman Paige Sheehan said that SELC "needs to take 'yes' for an answer," saying the company has already agreed to close its coal ash pits.

"It’s puzzling that SELC would mischaracterize the impressive progress North Carolina has made in closing ash basins," Sheehan said.

Both recently passed laws and the settlement, she said, would "ensure groundwater is protected and that the public has opportunities to provide input." The company, she said, is only protected from further fines if it does what it supposed to under state water quality regulations.

The settlement in question cuts by more than 70 percent a record $25.1 million fine DEQ levied in March for leaks from the ash ponds at the L.V. Sutton Steam Plant near Wilmington and expands its scope to cover all of Duke's coal ash ponds in North Carolina. When they announced the settlement, state officials argued it would speed the cleanup at sites across the state.

SELC, Duke and the state have been engaged in legal sparring over coal ash pollution for years. The issue landed front and center in February 2014, when a breach at a coal ash basin in Rockingham County spilled thousands of tons of the toxin-laced ash into the Dan River. Since then, the state has passed a law that proponents say will lead to the pollution being cleaned up.

Critics, including SELC lawyers, say that law does not force Duke to move quickly enough and could allow for cap-in-place solutions, in which the water is drained and the pits are sealed rather than having the material removed.

Duke argues the state's Coal Ash Management Act requires some of the quickest action for coal ash sites in the country. That's not quick enough for some residents who live near the plants.

"We have been living on bottled water since April 18," said Deborah Graham of Salisbury, who has been told by the state not to use her well water.

Despite living near a Duke coal ash pond at the Buck Steam Station for 28 years, Graham said the company claims it is unlikely to be the source of pollution in her water supply. She accused state regulators of being too "cozy" with the company.

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