Federal judge won’t dismiss coal ash lawsuit

A federal judge has denied Duke Energy’s motions to dismiss or delay a lawsuit over coal ash contamination filed by environmental advocates.

U.S. District Judge Loretta Biggs said the advocates’ lawsuit, which focuses on Duke’s Buck power plant near Salisbury, should continue in part because of slow enforcement by state regulators.

Federal law bars so-called citizen suits unless state regulators are not “diligently prosecuting” their own cases against environmental violators.

The state Department of Environmental Quality, as it is now known, sued Duke over groundwater contamination and illegal seeps from coal ash dams at Buck in 2013.

The next year, the Yadkin Riverkeeper and Waterkeeper Alliance filed its own lawsuit against Duke on different grounds.

Duke asked Biggs to dismiss the advocates’ case, arguing DEQ was already aggressively policing the utility. Advocates, in contrast, maintain the department has collaborated with Duke to avoid heavy penalties.

Biggs disagreed with Duke, noting that after two years DEQ had yet to conduct depositions in its case or a pretrial exchange of records, and had asked a judge to put on hold its own lawsuits against the company.

Duke and DEQ agreed last month to a $7 million settlement of state groundwater contamination claims involving all 14 of its North Carolina coal-fired power plants. Advocates have asked that that settlement be set aside.

The judge also denied Duke’s second argument that the advocates’ case should be delayed until state officials rate the risks of Duke’s ash ponds and the state lawsuits are resolved.

Delaying the advocates’ lawsuit, Biggs wrote, could hurt local waters from a continued flow of pollutants and hurt local residents who rely on groundwater. More than 80 families who live near Buck have received state don’t-drink advisories because of contaminated wells, although the source of pollution is unclear.

DEQ’s “prosecution does not inspire confidence that its state court action will move expeditiously to a final resolution,” Biggs wrote.

“We are pleased by the recognition that the Clean Water Act protects the Yadkin from groundwater contaminated by these unlined coal ash lagoons and from the potential catastrophic failure of the old, leaking dams that hold them back from the river,” Yadkin Riverkeeper Will Scott said.

Despite “frivolous lawsuits,” DEQ claimed credit for being the first North Carolina administration to address coal ash.

“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,” general counsel Sam Hayes said in a statement.

Duke spokeswoman Paige Sheehan questioned why citizen lawsuits over Buck and several other Duke power plants are continuing after Duke has proposed excavating 20 of its 32 ash ponds in North Carolina. All 32 have to be closed by 2029 under state law.

“Our focus is on clearing up these continuing legal matters so we can focus on closing our ash basins in a way that is safe for people and the environment,” she said.

This article was amended Oct. 22 to clarify that federal law bars citizen suits unless state regulators are not “diligently prosecuting” their own cases against environmental violators.

This story was originally published October 21, 2015 at 1:20 PM with the headline "Federal judge won’t dismiss coal ash lawsuit."