U.S. District Court rejects Duke Energy's motion to dismiss a pending coal ash case | News

U.S. District Court rejects Duke Energy's motion to dismiss a pending coal ash case


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The N.C. Department of Environmental Quality, formerly the DENR, may have settled their legal battle with Duke Energy over coal ash contamination—to quite a bit of consternation, might I add—but the fight goes on with citizen groups.  

Yesterday, U.S. District Court Judge Loretta Biggs issued a key ruling in one citizen case against the billion-dollar energy company, ruling against the company's motion to dismiss environmentalists' claims that Duke violated federal water protection laws. 

The case stems from alleged contamination at the company's Buck facility located on the Yadkin River in Rowan County. The Yadkin Riverkeeper and Waterkeeper Alliance are claiming the company has violated the Clean Water Act of 1972 due to seepage at its coal ash facility. 

Duke has already pleaded guilty nine times over for violating the act in its coal ash handling after last year's 39,000-ton spill in Eden's Dan River, a charge that led a federal judge to issue $102 million in fines and five years probation for the company. However, following their settlement with DEQ, it seemed as if the company would use its deal with the state to attempt to block any future claims filed by citizen groups relating to coal ash contamination.

Yesterday's ruling, which had more than one criticism of state regulators buried within, found that this particular environmental group could proceed with its case, including claims related to coal ash contamination, leaks into the groundwater and Yadkin River and dam safety violations. 

“The Court is unable to find that DENR was trying diligently or that its state enforcement action was calculated, in good faith, to require compliance with the [Clean Water] Act," the ruling stated. "Accordingly, DENR’s state enforcement action does not bar the Riverkeepers from pursuing their Seep Claim and Hydrological Connection Claim in this citizen suit.” 

Judge Biggs also declined Duke's motion to stay in the case, finding that delaying the proceedings "has the potential to substantially harm the environment and the individuals who live near the Buck plant and draw their daily supply of water from allegedly contaminated wells.”

The Southern Environmental Law Center represents the environmental groups in this case. In a statement, SELC attorney Frank Holleman said the ruling "upholds citizens’ right to enforce the law against polluters like Duke Energy to protect clean water when DENR/DEQ fails to do so. In dismissing Duke Energy’s attempt to block citizens from protecting clean water against its pollution, the court found that DENR/DEQ had not been diligently pursuing enforcement against Duke Energy’s still leaking coal ash. Instead, DENR/DEQ has been diligently protecting Duke Energy."

As soon as we have a response from Duke and the DEQ, we will post it.


"We continue to work to resolve legal issues so we can focus our full attention on closing ash basins in ways that protect people and the environment.

It is curious that SELC continues to pursue legal fights when we have already agreed to close all 32 ash basins. As we said last week in relation to another SELC legal issue, they need to take "yes" for an answer.
The same issues in this case are being addressed and resolved in state proceedings. This is duplicative and unnecessary and driven by SELC.

Also, NC has an aggressive new state law that lays out a framework, schedule, public input process and strong regulation regarding the closure of ash basins. Let that process work rather than continue in the legal arena."

Paige Sheehan, APR
Duke Energy Corporate Communications

"It's unfortunate that some parties prefer to file frivolous lawsuits rather than focusing on closing coal ash ponds, cleaning up groundwater, and protecting our environment.

The claim that we have not been diligent is not only incorrect, it is an affront to the dedicated DEQ employees who are working to expedite the cleanup and closure of coal ash facilities. In contrast to previous administrations who ignored the problem and issued policies that restricted enforcement, this administration is the first to address the 60 year-old coal ash issue. We are making significant progress in implementing the toughest coal ash law in the nation.

Coal ash is already being moved from two high-priority sites under DEQ's direction and we have issued approvals to begin cleanup at two additional sites. An open mine site in Chatham County is expected to receive its first delivery of coal ash tomorrow. We have tested more than 400 private wells, provided important health information to citizens, and we are evaluating comprehensive scientific data about drinking water near coal sites. DEQ also continues to work with the Environmental Protection Agency to secure its approval of the federal permits that Duke Energy needs to close coal ash ponds."

Sam Hayes, general counsel for the N.C. Department of Environmental Quality

Here is a copy of yesterday's ruling in its entirety.

See related PDF show_temp.pdf

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