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Duke Energy, state to settle ash lawsuit

By Bruce Henderson
bhenderson@charlotteobserver.com

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    E-mail lisa.palmer@ncdenr.gov or write N.C. DENR Division of Water Quality, attention Lisa Palmer, 1617 Mail Service Center, Raleigh NC 27699-1617, by Aug. 14.



North Carolina’s environmental agency and Duke Energy proposed a settlement Monday in a lawsuit that said coal ash stored at the Riverbend power plant threatens Charlotte’s water supply.

In a proposed order that will be open for public comment for 30 days, Duke agrees to assess the sources and extent of contamination at Riverbend and at its Asheville power plant. Duke would be fined $99,000 if the order becomes final.

The environmental groups that prodded the state to take legal action lambasted the agreement as toothless, saying it allows Duke to continue studying problems at Mountain Island Lake that have been known for years. The lake supplies drinking water to about 750,000 people.

But state officials say the order could make Duke take cleanup steps that are “scaled to the risk involved” – including closing the ash lagoons.

“We must know the extent of any contamination before a meaningful corrective action plan can be carried out,” said Jamie Kritzer, a spokesman for the N.C. Department of Environment and Natural Resources.

Frank Holleman, a senior attorney at the Southern Environmental Law Center, said the order could have forced Duke to take immediate steps to stop the contamination.

“It gives Duke amnesty for its past pollution in return for a token penalty that amounts to a parking ticket for contaminating Mountain Island Lake,” he said. “And it doesn’t stop one ounce of pollution from entering that lake in the future.”

Monday’s proposed settlement covers two state lawsuits filed on similar grounds.

In March, N.C. environmental regulators sued Duke over ash at a Duke Energy Progress power plant in Asheville. The state said ash contaminants from that plant flowed into the French Broad River.

In May, the state filed for an injunction against Duke Energy Carolinas over Riverbend. The state said the 2.7 million tons of ash in two unlined lagoons at the plant pose “a serious danger” to public health and the lake. Ash contains potentially toxic metals.

The lawsuit cited unpermitted seepage from Riverbend’s lagoon dams, as well as iron and manganese above state standards in groundwater near the lagoons.

New data show that the iron and manganese came from natural sources, Duke spokeswoman Erin Culbert said Monday, but that some likely came from the ash lagoons. There’s no evidence it has moved outside a roughly 500-foot perimeter around the lagoons, she said.

The Riverkeeper Foundation, Duke University and county officials have also found arsenic, a cancer-causing component of ash, in the lake near the lagoons’ discharge point upstream of Charlotte’s water intake.

Duke contends its ash has not harmed the lake’s overall water quality. It says seepage from the lagoons’ earthen dams, cited by the state, is normal and doesn’t indicate structural problems.

“We continue to believe Duke Energy has complied with its existing water discharge permits, and if regulators wish to amend those permits, that is a transparent and public process,” Culbert said.

Duke has reported groundwater monitoring data to the state since 2008 and measurements from its ash discharge into Mountain Island Lake for decades. Culbert said the state might also want Duke to learn how much water is seeping from the dams.

“All of us can benefit from the information outlined in the order,” Culbert said in an interview.

Riverbend closed on April 1 after operating for 84 years. The plant’s neighbors and environmental advocates want Duke to remove the ash.

In June the law center sued Duke Carolinas, on behalf of the Catawba Riverkeeper Foundation, in federal court over Riverbend’s coal ash. The proposed state settlement will not affect that action.

The Riverkeeper and law center settled a lawsuit last year in which S.C. Electric & Gas agreed to remove 2.4 million tons from lagoons at the Wateree Station power plant near Columbia.

Sam Perkins, announced as the new Catawba Riverkeeper on Monday, had not read the proposed order in detail late in the day. “At the very least I can say it’s inadequate,” he said.

The state will allow public comment on the proposed settlement “to be as open and forthright as possible, and give people the right to comment on a matter of great public interest,” Kritzer said. Holleman said the comment period is required by federal rules.

Henderson: 704-358-5051 Twitter: @bhender
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