North Carolina High Court Rules Duke Energy Has ‘Years’ to Cleanup Coal Ash

By | June 16, 2015

North Carolina’s highest court ruled June 11 that Duke Energy has years to clean up leaking coal ash dumps as outlined by a new state law.

The state Supreme Court overruled a lower court judge’s decision that the country’s largest electric company must take “immediate action” to eliminate groundwater pollution at its unlined ash pits. The ash is the residue of coal burned for electricity and contains toxic heavy metals.

The court agreed with Duke Energy’s attorneys that the issue is moot since legislators passed a law after last year’s massive Dan River spill requiring the company to cap or remove all of its dumps by 2029. Four high-priority sites must close by 2019.

In adopting the law, “the General Assembly sought to address the public’s understandable concern about the effect of the operation of coal ash lagoons on the ground and surface waters in North Carolina,” Justice Sam Ervin IV wrote for the court. Justice Robert Edmunds did not participate in the seven-judge high court’s consideration of the case.

Cape Fear River Watch, the Waterkeeper Alliance and other groups sued after the state Environmental Management Commission determined in 2012 that Duke Energy could satisfy the legal requirement for immediate action by taking steps to develop a plan for stopping its pollution in the future. Superior Court Judge Paul Ridgeway ruled in favor of the environmentalists last year.

A company spokeswoman called the court ruling appropriate.

“We are pleased to close this issue so we can continue moving ahead with safely and permanently closing ash basins,” Duke Energy spokeswoman Erin Culbert said in an email.

The case represents Duke Energy’s extraordinary influence over North Carolina government, from legislators who make the rules to regulators responsible for enforcing them, said Pete Harrison, an attorney for the Waterkeeper Alliance.

“For years, regulators simply didn’t enforce rules against Duke that other citizens and small businesses had to comply with,” Harrison wrote in an email. Eventually, “the government responded by simply changing the law to accommodate Duke’s groundwater contamination, excusing the criminally negligent company from preexisting requirements for immediate cleanup.”

The company pleaded guilty last month to nine criminal violations of the federal Clean Water Act and agreed to pay $102 million in fines, restitution and community service. After hearing federal prosecutors allege that Duke Energy ignored repeated warnings about problems at its coal ash pits as far back as 2010, U.S. District Court Judge Malcolm Howard approved what he called the largest federal criminal fine in North Carolina history.

Admitting to criminal wrongdoing was tough, but Duke Energy CEO Lynn Good promised the lessons learned since the spill would mark a turning point.

“You eventually get to what you think is the right decision for your company and you move forward, and that’s where we are,” Good said in an interview.

After years of denials, Duke Energy in December conceded in regulatory filings that it identified about 200 leaks and seeps at its 32 coal ash dumps statewide that together ooze out more than 3 million gallons of contaminated wastewater each day.

The company is challenging as excessive a $25 million fine imposed by the state Department of Environment and Natural Resources over pollution that has been seeping for years from a Duke Energy power plant near Wilmington.

AP Energy Writer Jon Fahey in New York contributed to this report.