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NC environmental advocates ready to file new ash lawsuits

North Carolina’s environmental agency said Thursday it won’t file further coal ash lawsuits against Duke Energy, as advocacy groups prepared to sue the utility next week.

The groups gave notice in July that they intended to sue Duke over federal clean-water violations at three power plants. The lawsuits can be filed as soon as Wednesday unless the state files its own lawsuits on similar grounds.

The N.C. Department of Environment and Natural Resources, which has come under criticism it regulates Duke too gently, said Thursday it won’t file those suits.

Litigation the state filed against Duke last year covered the ash violations the environmental groups claim, said DENR spokesman Drew Elliot.

In an 11-page letter to the Environmental Protection Agency, Duke and the Southern Environmental Law Center, DENR claimed credit for taking action on ash once Gov. Pat McCrory’s administration took office.

“As early as 2007 ... it was known there were exceedances of environmental standards at many of these coal ash sites,” it read. “However, until very recently, no serious action was taken by anyone, including citizens groups, to assess the situation or require remediation.”

Duke points out that it began voluntarily reporting groundwater data to the state in 2007, before the state filed its litigation in 2013. The state added groundwater monitoring as part of permits that were renewed in 2011 and outlined steps it would take in response to exceedances.

“We are moving as quickly as possible to close ash basins in a way that protects the environment and water,” spokeswoman Paige Sheehan said.

Legislation that gives Duke 15 years to drain its 33 ash ponds is now before the governor. McCrory issued an executive order on the issue Aug. 1.

The Southern Environmental Law Center, which plans to file the federal lawsuits Wednesday, takes a starkly different view of DENR.

The state filed its lawsuits against Duke last year only after the law center’s clients gave notice, as they did in July, that they would sue Duke over ash pollution.

The law center contends that the state actions were intended to block the environmental advocates, who might have won court orders or settlements making Duke clean up its 33 ash ponds.

A proposed state settlement with Duke – withdrawn after a Feb. 2 ash spill into the Dan River – required only further study of contamination and a fine of about $100,000.

“I think (the state) decided they’re not going to make the same mistake twice” in filing pre-emptive lawsuits, said SELC attorney Frank Holleman.

Once Duke dumped up to 39,000 tons of ash into the Dan River, Holleman added, DENR “began writing tickets as fast and furiously as a small town traffic policeman at the end of the month.”

DENR has cited Duke’s plants for multiple violations since the spill. Department employees have also been subpoenaed to testify before a federal grand jury probing the incident.

The law center has said it intends to file suit over ash pollution at Duke’s Buck power plant in Rowan County, Cape Fear plant in Chatham County and Lee plant in Wayne County.

This article was revised on Aug. 29 to include Duke Energy’s response to the state characterization of response to ash-related contamination.

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