July 1, 2014

Advocates plan to sue Duke Energy over ash

Environmental groups filed notice Tuesday of their intention to sue Duke Energy over coal ash problems at three power plants, including Buck in Rowan County.

Environmental groups filed notice Tuesday of their intention to sue Duke Energy over coal ash problems at three power plants, including Buck in Rowan County.

The Southern Environmental Law Center, which represents the groups, said contamination at the plants violates the federal Clean Water Act. The notices went out as the N.C. House took up ash legislation.

Lawsuits will be filed in federal court in 60 days, it said, if Duke doesn’t agree to fix the problems or state environmental regulators don’t file similar actions on the same grounds.

“The conservation groups believe that a negotiated settlement of these violations ... would be preferable to protracted litigation,” the filings say.

Duke said it would review the filings and had little immediate response.

“Duke Energy continues to be committed to closing its North Carolina ash basins in a way that’s fact-based and environmentally sound,” said spokeswoman Paige Sheehan.

Federal lawsuits, if they’re filed, would be separate from the state-court actions the N.C. Department of Environment and Natural Resources filed against Duke’s coal-fired power plants last year.

DENR had no comment on the notices as it reviewed them.

None of the three retired plants the groups targeted – Buck, Cape Fear in Chatham County and Lee in Wayne County – are among the four power plants scheduled for high-priority cleanups under legislation the N.C. Senate passed June 25.

The notices claim federal violations at Buck including groundwater contamination within 300 feet of private wells and seeps from pond dams of contaminants including lead and chromium.

Ponds at the Lee plant, the notices say, leak contaminants into wetlands and have contaminated groundwater with high levels of arsenic, which causes cancer.

The notices cite a history of dam problems at Cape Fear, where the state says Duke pumped millions of gallons of wastewater into the river without approval in March. Seeps have released contaminants including arsenic, cobalt and aluminum, the notices say.

The advocacy groups must show federal judges that their litigation would be based on grounds the state lawsuits did not raise. Among the differences between the two are the groups’ claim that Duke released contaminated sludge from its ash ponds, one not made by the state.

The law center has filed previous federal lawsuits over the Riverbend power plant west of Charlotte and the Sutton plant in Wilmington. In June, a federal court rejected Duke’s motion to dismiss the Sutton case. No final ruling has been made in the Riverbend case.

The N.C. House took up ash legislation on Tuesday. Environmental advocates have criticized the Senate version of the bill because it doesn’t require that ash be removed from sites near water at all 14 of Duke’s coal plants in the state.

“Once we gathered all the information (on the plants) we did want to let everyone – DENR, Duke, the public and elected officials – know the magnitude of the problems at these three sites and that we are prepared to take federal actions” if they’re not corrected, said law center senior attorney Frank Holleman.

The notices were filed on behalf of the Waterkeeper Alliance, a national group, and three regional groups: the Yadkin Riverkeeper, Neuse Riverkeeper and Cape Fear River Watch.

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