NC Supreme Court vacates ‘immediate action’ order on coal ash

The first excavated coal ash left Duke Energy’s retired Riverbend power plant near Charlotte in May. The ash was moved to a lined landfill.
The first excavated coal ash left Duke Energy’s retired Riverbend power plant near Charlotte in May. The ash was moved to a lined landfill.

North Carolina’s Supreme Court vacated Thursday a lower-court ruling that said state regulators could force “immediate action” to clean up the sources of groundwater contaminated by coal ash.

Coal ash legislation adopted last year superseded that ruling, the court ruled in a victory for Duke Energy and state regulators.

“We think the court’s ruling is appropriate, and we are pleased to close this issue so we can continue moving ahead with safely and permanently closing ash basins,” spokeswoman Erin Culbert said.

At issue in the lower-court case was how state groundwater rules are to be interpreted in cases where contamination has been found. The case, filed in 2012, took on added significance after Duke’s January 2014 spill of ash into the Dan River.

Contaminated groundwater has been found at all 14 of Duke’s North Carolina coal plants. Contaminants at levels above state groundwater or interim standards have been found in 224 of the 242 private wells tested near those power plants, the state reported Thursday.

Environmental advocates argued that polluters are required to stop the source of contamination before beginning work to restore groundwater.

The state Environmental Management Commission and Duke said assessment of the contamination, and plans to fix the damage, are needed before steps are taken at 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.

But later that year, legislators passed new standards for coal ash.

The legislation ordered 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.

In arguments before the Supreme Court in March, Duke and the EMC argued that the legislation takes precedence.

The Southern Environmental Law Center, representing four advocacy groups, countered that some old, unused ash ponds are not covered by existing state permits and aren’t covered by the legislation.

The Supreme Court disagreed, saying Ridgeway found there is no evidence of unpermitted ponds.

The court also noted legislators’ interest in coal ash following the Dan River spill. In light of that, it ruled, “we believe that we should refrain from issuing what amounts to an advisory opinion concerning any impact of the applicable regulation on any non-permitted coal ash lagoons that may, contrary to the record evidence, actually exist.”

The Southern Environmental Law Center charged that the state “joined hand-in-hand” with Duke to appeal Ridgeway’s order, followed by the legislation that effectively blocked the order.

“This decision confirms that Duke Energy successfully worked the politics of the North Carolina General Assembly to win changes in the law giving it a pass from complying with the same laws North Carolina has long enforced against small businesses and land owners,” attorney D.J. Gerken said in a statement.

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