Duke Energy, North Carolina Appeal Coal Ash Ruling

North Carolina’s environmental regulator joined Duke Energy Corp. in appealing a court order that the company clean up groundwater pollution from coal ash dumps, a ruling made in case that began before one of the utility’s plants spewed toxic sludge into the Dan River.

Superior Court Judge Paul Ridgeway on March 6 ruled that Duke must take immediate action to stop chemicals from fouling groundwater. He also said the state’s Environmental Management Commission illegally failed to require the company to move quickly on pollution from coal ash ponds.

Duke, the largest U.S. utility, filed a notice of appeal in Wake County Superior Court in Raleigh on April 3 and the commission, which sets state environmental regulations, followed with a notice yesterday.

While the rigor of North Carolina’s regulation of the coal ash lagoons had been a source of concern to regional environmental groups for years, it came under national scrutiny Feb. 2 after one of Duke’s facilities spilled as much as 39,000 tons of ash into the Dan River near Eden.

The spill triggered a federal grand jury investigation of the state’s oversight of Duke’s coal ash storage.

Subpoenaed Documents

U.S. Attorney Thomas Walker has subpoenaed state documents on inspections, leaks and discharges from Duke’s coal ash ponds, as well as current and former officials of Duke and of state agencies.

The case that spawned Ridgeway’s ruling and three other state suits dealing with conditions at Duke’s 33 coal ash ponds were filed in 2013 or earlier, according to D.J. Gerken, senior attorney for the Southern Environmental Law Center, which is providing legal services to several groups bringing the lawsuits.

Duke has done everything it can “to avoid enforcement, to avoid cleanup for as many years as possible,” Gerken said in an interview. “That’s why we had to go to court.”

Monitoring wells at coal ash sites found unacceptable levels of substances including arsenic, sulfate, thallium and selenium, according to Ridgeway’s ruling.

Paige Sheehan, a spokeswoman for Charlotte-based Duke, declined to comment on the appeal. Regarding criticism of Duke’s approach to coal-ash storage, Sheehan cited an April 2 summary of remarks by Duke Chief Executive Officer Lynn Good posted on the company’s website.

Ash Basins

Good said the company has been storing ash for nine decades and there are 650 ash basins at utility plants nationally.

“When you talk about something of that magnitude, effectively dealing with it is going to take science, it’s going to take time, it’s going to take engineering,” she said in the remarks.

Duke operates seven coal-burning power plants in North Carolina. It owns seven other sites, including the one at Eden, where ash ponds remain after plants were retired or replaced with generators burning natural gas.

The case is Cape Fear River Watch v. North Carolina Environmental Management Commission, 13-cv-00093, North Carolina Superior Court Division, Wake County (Raleigh).

Before it's here, it's on the Bloomberg Terminal.