NC Supreme Court mulls how Duke Energy must clean groundwater

A concrete pipe below this coal ash impoundment failed, releasing coal ash and ash pond water into the Dan River in February 2014.
A concrete pipe below this coal ash impoundment failed, releasing coal ash and ash pond water into the Dan River in February 2014. U.S. FISH AND WILDLIFE SERVICE

The North Carolina Supreme Court heard an appeal Monday of a lower-court judge’s ruling last year that Duke Energy take “immediate action” to clean up coal ash-contaminated groundwater.

The state Environmental Management Commission appealed the ruling, with Duke joining the case on its side. Four environmental groups are on the other side.

The EMC and Duke argue that coal ash legislation that became law last September makes the case moot.

The legislation, passed seven months after Duke spilled ash into the Dan River, orders Duke to close its 32 ash ponds in the state by 2029. It also requires cleanup plans for the contaminated groundwater that has been found at all 14 of its North Carolina coal-fired power plants.

The state Department of Environment and Natural Resources last week fined Duke $25.1 million for groundwater contamination at its Sutton power plant in Wilmington. DENR says fines for problems at other power plants are likely.

“The world is different now than it was in 2012,” when the case originated, Charlotte attorney James Cooney, representing Duke, told the court.

He later added: “I cannot think of a clearer case in which the General Assembly has said, ‘This is the way we want things done.’”

But the Southern Environmental Law Center argues that old, unused ash ponds including those recently revealed at three Duke power plants – Riverbend near Charlotte, Asheville and Sutton – are not covered by existing state permits and aren’t affected by the legislation.

“This case remains alive,” said law center attorney D.J. Gerken.

Duke argues that the coal ash law covers all ash deposits, including the old ones. Duke lists 15 ash ponds that are no longer in use, but says facility-wide state discharge permits cover all of them.

The law center says the law does not cover the older sites, making the high court’s action necessary.

At issue is how state groundwater rules are to be interpreted in cases where contamination has been found.

Environmental advocates argue that polluters are to stop the source of contamination before beginning work to restore groundwater. The EMC and Duke say assessment of the contamination, and plans to fix the damage, are needed before steps are taken to stop the source.

Wake County Superior Court Judge Paul Ridgeway, ruling in March 2014, sided with advocates in deciding that references to “immediate action” in the state rules apply to the source.

Correctly interpreted, Gerken said, the state rules mean Duke needs to take action now. “The option that we know works is removing the ash,” Gerken said.

Duke and the EMC argue last year’s coal ash law puts that action in motion. Under the law, Duke is assessing the extent and direction of flow of groundwater at its power plants, including whether neighboring private wells were harmed.

Spokesman Jeff Brooks said Duke will excavate all ash, including material stored in old, unused ponds, at four high-priority power plants identified by the legislation: Riverbend, Asheville, Sutton and Dan River.

It’s not clear how ash will be disposed of at the 10 other plants.

“Closing all the basins will address any problems that may exist,” Brooks said.

A ruling from the state’s high court could take weeks, or even months. The court could side with Duke and the Environmental Management Commission and essentially dismiss the case, which would allow Duke’s current cleanup plan to continue.

The court also could side with the environmental groups, causing Duke to shift its focus to more immediate groundwater cleanup.

Henderson: 704-358-5051;

Twitter: @bhender