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Duke must act on ash contamination, judge rules

Advocates hope to use a judge’s order Thursday to force Duke Energy to remove ash from its unlined ponds across North Carolina.

The ruling, which reversed a decision by the state Environmental Management Commission, said Duke has to take “immediate action” when groundwater contamination exceeds state standards.

North Carolina’s environmental agency has filed four lawsuits against Duke over ash contamination, including groundwater and dam seeps. Advocates lined up against Duke hope to apply Thursday’s order to resolving those cases.

The same Wake County judge who ruled Thursday is also presiding over the lawsuits.

“It means (Duke) has to do whatever is necessary to stop these ash ponds from continuing to act as a source of contamination,” said D.J. Gerken, a Southern Environmental Law Center attorney representing environmental groups in the case.

“The only solution we know that works is to move the ash to lined landfills.”

The N.C. Department of Environment and Natural Resources and Duke had little to say about the ruling.

DENR said it “is carefully reviewing the court’s decision.”

In response, Duke said, “We are considering this ruling as we take another look at our management of coal ash basins.”

Thursday’s court ruling follows a dramatic spill last month of up to 39,000 tons of ash from Duke’s retired Dan River plant in Eden. A federal grand jury is investigating possible criminal violations.

North Carolina’s environmental regulators, meanwhile, hint that they might reverse a relationship with Duke that critics have called chummy.

DENR has cited Duke for violations at Dan River and, Thursday, at its Cliffside power plant about 60 miles west of Charlotte. Last week the department said it might force Duke to remove the ash from its Dan River ponds and possibly extend similar orders to other power plants.

Superior Court Judge Paul Ridgeway ruled Thursday in an appeal of a decision by the rule-making Environmental Management Commission.

The EMC had rejected a request by four environmental groups that it interpret state rules to order “immediate action to eliminate” contamination from ash ponds that violates state standards.

The commission instead referred to taking corrective actions that “require a reasonable amount of time to accomplish.” DENR has said it can’t take action against Duke before the extent of contamination is known.

Ridgeway saw it differently. State rules, he said, “must take immediate action to eliminate sources of contamination that cause a concentration of a substance in excess of groundwater quality standards.”

That standard applies to both active and retired ash ponds, Ridgeway wrote. Duke stores 84 million tons of ash in 31 ash ponds in North Carolina.

Groundwater is tainted around ash ponds at all 14 of Duke’s active and retired coal-fired power plants in the state. Some of the contamination may come from natural sources, but certain elements signal the presence of ash.

“This ruling is particularly important because it covers inactive ponds that have been left behind,” said Catawba Riverkeeper Sam Perkins. Those include ponds at the retired Riverbend power plant on Mountain Island Lake, Charlotte’s water source, and the Allen plant on Lake Wylie.

The law center represents Cape Fear River Watch, the Sierra Club, Waterkeeper Alliance and Western North Carolina Alliance in the case.

Ridgeway refused to reverse the Environmental Management Commission on what constitutes a groundwater violation.

State legislators last year passed a measure that says corrective action isn’t required for contamination inside a “compliance boundary” around pollution sources. The legislation rendered that issue moot, Ridgeway said.

DENR said Thursday it has cited Duke for problems at dams for two ash ponds at the Cliffside plant, and ordered repairs.

The problems to be corrected include a corroded metal spillway pipe and trees and bushes growing on dams, possibly causing internal erosion.

Henderson: 704-358-5051; Twitter: @bhender
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