Judge lets Duke Energy ash lawsuit continue

A federal judge on Friday overruled a recommendation that a lawsuit against Duke Energy over coal ash contamination on Charlotte’s water source be dismissed.

The Catawba Riverkeeper Foundation sued Duke last June over contamination from the now-retired Riverbend power plant on Mountain Island Lake.

Such “citizen suits” are allowed under the federal Clean Water Act unless state authorities are taking enforcement actions on the same grounds.

A federal magistrate judge recommended the Riverkeeper lawsuit be dismissed. The N.C. Department of Environment and Natural Resources has also sued Duke over ash pollution from Riverbend and 13 other power plants in North Carolina.

U.S. District Judge Max Cogburn Jr. overruled that recommendation Friday.

The Riverkeeper’s attorneys from the Southern Environmental Law Center argued that the foundation’s claims are different from those brought by the state.

The state lawsuit claims Riverbend contaminated groundwater and Mountain Island Lake, Charlotte’s primary water source, through illegal seeps from ash pond dams. The Riverkeeper, more specifically, says Duke illegally allowed contaminants removed during treatment of the ash in the ponds to reach the lake.

“While the court does not disagree with the magistrate judge’s conclusion that the state is diligently pursuing a substantial action, the court is not yet certain” that the two lawsuits make similar claims, Cogburn wrote.

DENR has asked the Environmental Protection Agency to join its investigation of Duke’s coal ash, which was prompted by a Feb. 2 ash spill into the Dan River.

Cogburn added that the Riverkeeper’s lawsuit should be dismissed “if, as (Duke) claims, the state and the EPA have joined forces in the state action to enforce the same Clean Water Act standards which (the Riverkeeper) seeks to enforce here.”

Cogburn denied Duke’s motion to dismiss the case.