Duke Energy asks federal judge to dismiss ash lawsuit

Two neighbors look toward Duke Energy’s Buck power plant near Salisbury.
Two neighbors look toward Duke Energy’s Buck power plant near Salisbury. AP

Duke Energy asked a federal judge Wednesday to dismiss or delay a lawsuit by environmental advocates over coal ash contamination at the Buck power plant in Salisbury.

The Yadkin Riverkeeper and Waterkeeper Alliance filed the lawsuit in September, more than a year after the state’s environmental agency also sued Duke over its ash handling at Buck.

U.S. District Judge Loretta Biggs did not immediately rule on Duke’s request after a two-hour hearing in which advocates attacked the role of state regulators in policing Duke.

The federal Clean Water Act allows so-called “citizen suits” if state regulators fail to aggressively do their job.

Environmental advocates argue the state Department of Environment and Natural Resources has tried to protect Duke from strict sanctions for ash-contaminated leaks and groundwater at its coal-fired power plants.

But Duke’s lawyers told the judge that the state lawsuits against 14 Duke plants, and coal-ash legislation last year that sets timetables for ash cleanup, are likely to also resolve the federal case over Buck.

Duke and environmental advocates have both asked that state lawsuits over seven power plants be closed because the utility has agreed or been ordered by the ash legislation to remove ash.

DENR has not filed responses but fined Duke $25 million in March over groundwater contamination at a power plant in Wilmington. Duke has appealed the fine.

Charlotte attorney Jim Cooney, representing Duke, told Biggs that engineering analysis for Buck’s ash hasn’t been completed.

“We do not know what the final solution is going to be for Buck,” Cooney said. “It makes sense to let us finish our engineering.”

DENR is required to finish hazard rankings for all 32 of Duke’s ash ponds by the end of December. Those deemed of high hazard have to excavate ash by 2019, and Buck could be among them.

Attorneys from the Southern Environmental Law Center, representing the advocates, said it would be risky to dismiss or delay the Buck case in federal court.

The law center said it pushed the state for enforcement action against Duke for six months before a Duke power plant dumped up to 39,000 tons of ash into the Dan River in February 2014. The spill prompted state legislation and a $102 million settlement of federal criminal charges against Duke.

“Nothing happened to prevent what easily could have been prevented,” attorney Frank Holleman told Biggs. “What they’re asking us to do today is to do the same thing again.”

Duke will submit a groundwater assessment of Buck to the state on Aug. 21, the company said. The assessments show the flow and direction of groundwater from the ash ponds.

Duke filed the first of those assessments – for the Lee power plant in Goldsboro, Sutton in Wilmington and Weatherspoon in Lumberton – on Wednesday.

Duke said groundwater at Lee and Weatherspoon is flowing away from private wells. At Sutton, Duke agreed in 2013 to pay for a new water line for a community in the expected path of contamination and to install a dozen new wells to intercept pollutants. Contaminants in private wells occur naturally, it said.

The federal court arguments also focused on the legal claims brought by advocates in federal court, which can’t be the same as those in the state cases.

DENR’s case focuses on unpermitted, engineered seeps and groundwater contamination from Buck’s ash ponds.

The environmental groups took aim at non-engineered seeps, the release of contaminated sediments from ash ponds, the release of contaminated groundwater to surface water and dam safety violations.

Bruce Henderson: 704-358-5051, @bhender