DENR opposes closing coal ash lawsuits

U.S. Fish and Wildlife Service officials collect samples following Duke Energy’s spill of coal ash into the Dan River in February 2014.
U.S. Fish and Wildlife Service officials collect samples following Duke Energy’s spill of coal ash into the Dan River in February 2014. U.S. Fish and Wildlife Service

North Carolina regulators accused Duke Energy and environmental advocates of a “cozy relationship” in opposing motions to close lawsuits filed by the state over coal ash at seven power plants.

Duke has been ordered to excavate ash from four of the plants, including Riverbend near Charlotte. Duke has voluntarily agreed to remove ash at three other plants.

That resolved differences between Duke and advocates represented by the Southern Environmental Law Center, who asked a judge last month to close the cases.

But the Department of Environment and Natural Resources filed briefs Wednesday opposing the move. DENR said closing the lawsuits would short-circuit the public input and scientific analysis promised by the state’s coal ash law.

“The seemingly cozy relationship between Duke Energy and the SELC takes away the voice of the citizens who have to live with Duke Energy’s decisions long after the process is over,” the department said in a release.

Following last year’s spill of ash into the Dan River, environmental groups had accused Duke and DENR of chummy connections meant to protect the utility from harsh penalties. Both denied the claim.

Since then, DENR has fined Duke $25 million for ash contamination at its power plant in Wilmington. Duke and the Southern Environmental Law Center, representing advocates, continue to spar over ash-related lawsuits filed in federal courts.

State law enacted last year places Duke on a 15-year timetable to close its 32 ash ponds, based on hazard rankings due in December.

High-priority sites, including the four designated by the law, have to remove ash by 2019. Ash at low-priority sites may be capped in place – an option DENR appears to want to keep.

“Duke would like to make a unilateral decision to bypass the law, scientific analysis and public input,” DENR spokeswoman Stephanie Hawco said.

Duke says its motions to close the lawsuits don’t do that. The motions say Duke will abide by the coal ash law and the state process for setting priority rankings.

“Science and engineering drove us to make the recommendations about those three plants, so we’re not seeking to avoid it,” spokeswoman Paige Sheehan said.

Duke hasn’t claimed that the three power plants it volunteered to excavate – Lee in Sanford, Cape Fear in Moncure and Weatherspoon in Lumberton – were high-priority sites, Sheehan said, only that “we believe excavation is appropriate and the Coal Ash Management Act process will take it from there.”

The Southern Environmental Law Center said DENR appears to be blocking cleanups that the public has demanded.

“These sites have serious leaks into neighboring waters, dangerous dams, and groundwater contamination,” attorney Frank Holleman said. “DENR would allow this pollution to continue and these dangers to continue, putting bureaucracy ahead of the safety of communities and clean water.”

Wake County Superior Court Judge Paul Ridgeway will hear arguments on the motions on Sept. 14.

Bruce Henderson: 704-358-5051, @bhender