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North Carolina asks to set aside deal with Duke on coal cleanup
SoVaNow.com / March 24, 2014Reversing course in the wake of the Feb. 2 coal ash spill on the Dan River, the state of North Carolina is seeking to abandon a consent order it negotiated with Duke Energy that would have required the utility to pay a $99,100 fine but avoid a requirement to clean up pollution at two coal ash sites in the state.
The North Carolina Department of Environment and Natural Resources (DENR) announced Friday it would ask a judge for permission to withdraw from the proposed settlement, which had drawn fire from environmental groups whose own lawsuits to force the cleanup of coal ash sites were cut short by the state’s enforcement action.
“We intend for our lawsuits against Duke Energy to move forward,” said John Skvarla, DENR secretary, in a statement released by the department. “We will continue to hold the utility accountable for the cleanup of its coal ash impoundments through the lawsuits, the reopening of the permits and our on-going investigation.”
The consent order, which arose from a 2013 state lawsuit against Duke Energy, addresses groundwater violations and wastewater discharges at the company’s Asheville Steam Electric Generating Plant in Buncombe County and the Riverbend Steam Station in Gaston County.
The settlement does not pertain to Duke Energy’s retired Dan River Steam Station near Eden, N.C. , where a Feb. 2 spill resulted in the release of an estimated 39,000 tons of coal ash and millions of gallons of wastewater into the Dan. The discharge briefly turned the river gray as far downstream as South Boston and left lava-like deposits of ash over a 70-mile span of river bottom.
North Carolina officials say the 2013 consent order reflected a long-standing interpretation of state groundwater rules governing pollution seepages at dump sites.
But the state’s position was overturned by a March 6 ruling by Wake County Superior Court Judge Paul Ridgeway, who sided with environmentalists in demanding that Duke take immediate action to clean up the coal ash.
On the same day that DENR vowed to reopen legal action against Duke, the agency also announced it would work jointly with the federal Environmental Protection Agency to resolve environmental issues associated with the Dan River spill and Clean Water Act violations at other Duke Energy facilities.
“The state’s goal is to clean up both the Dan River and to protect public health and the environment at the other Duke Energy facilities around the state, and we are pleased to announce that the EPA will join us as we address these important issues,” said Governor Pat McCrory. “Participation by the EPA will bring additional resources to help us resolve a difficult problem that spans more than six decades.”
The announcements by North Carolina were greeted favorably by environmental groups, although representatives criticized state officials for waiting until a disaster struck to take action.
“Both of these things we wished would’ve happened a year ago,” D.J. Gerken, a lawyer for the Southern Environmental Law Center, told the Asheville Citizen-Times.
“I think it’s driven by a few things: The Dan River ash spill, the intense media scrutiny and also by the judge’s order a few weeks ago directing that Duke must take immediate action to stop its contamination,” Gerkin told the newspaper.
Also this week, the Southern Environmental Law Center filed motions to allow four area conservation groups to join the state court enforcement action pertaining to the Dan spill.
Groups that would be included in court action are the Dan River Basin Association, the Roanoke River Basin Association, the Southern Alliance for Clean Energy, and Waterkeeper Alliance.
Frank Holleman, senior attorney for the SELC, said involvement by the groups is necessary in light of the State of North Carolina’s record of ignoring “numerous illegal discharges” at coal ash sites maintained by Duke Energy.
“The tragic Dan River spill and the revelations of uncomfortably close ties between Duke Energy and DENR make it all the more important that citizens and local conservation groups have a seat at the table,” said Holleman. “We will work to make sure that the Dan River is protected and that Duke Energy cleans up the Dan River site.”
SELC previously had brought suit on behalf of North Carolina conservation groups that sought to force Duke Energy to clean up four other coal ash containment sites in the state. That lawsuit, in 2012, was put on hold after DENR intervened with its own enforcement action against Duke. It was that intervention that led to the controversial consent order for the $50 billion utility to pay a $99,100 fine, which environmentalists have derided as a sweetheart deal.
Relying on data from groundwater monitoring wells operated by Duke Energy, SELC presented evidence of groundwater contamination at several of its sites, including the Mayo Steam Station on U.S. 501 outside of Halifax County and the Roxboro Steam Station in Semora, N.C., which lies upstream from the Hyco River flowing into Halifax. Duke Energy has 14 currently operating and decommissioned coal-fired plants in North Carolina, with a total of 33 ash pits.
Duke has pledged to remove its coal ash dump at the Dan River Steam Station in Eden, N.C. and store the toxic wastes in a lined landfill away from water.
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