Judge Rules Duke Must Clean Up Coal Ash Ponds

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CRF's lawsuits remain active but ruling will aid case. The court decision overrules an Environmental Management Commission denial of a petition by North Carolina Waterkeepers to require the State to enforce the groundwater standards against Duke. Duke Energy must take immediate action to eliminate the sources of groundwater contamination that are currently violating water quality standards at all 14 of its coal-fired power plants in North Carolina, including the three coal ash sites along a 29-mile span of the Catawba River around Charlotte.

Judge Rules Duke Must Clean Up Coal Ash Ponds

Map showing major seepage around Riverbend, which sits on Mountain Island Lake, the drinking water reservoir for 860,000 people around Charlotte. Click to enlarge.

A Wake County Judge today ruled that Duke Energy must take immediate action to eliminate the sources of groundwater contamination that are currently violating water quality standards at all 14 of its coal-fired power plants in North Carolina, including the three coal ash sites along a 29-mile span of the Catawba River around Charlotte.

The ruling comes in the wake of recent claims by the Department of Environment and Natural Resources (DENR) that it lacks the legal authority to require cleanup of the ash ponds, which hold tens of billions of gallons of toxic coal ash. DENR’s comments were made in response to the February 2014 coal ash spill that dumped as much as 35,000 tons of coal ash into the Dan River.

“Duke Energy has demonstrated at all 14 sites – especially at Dan River – that it is unable to keep its own mess on its own property, neither safely nor at all, and this ruling recognizes that,” said Catawba Riverkeeper Sam Perkins. “For years, we have known that these sites are potent sources of groundwater contamination, and this ruling finally provides a long-needed directive to enforce the law.”

“We don’t need more information or studies. Duke and DENR have contaminant data exceeding state standards from groundwater wells at all 14 coal ash sites across North Carolina. These unlined sites are free-flowing into groundwater and drinking water reservoirs. To continue to delay a cleanup after this ruling would exhibit an arrogance that particularly with recent events should be of grave concern for the people of North Carolina and bordering states who drink the water downstream of these sites,” Perkins said.

All 14 Duke Energy coal ash sites, including those around Charlotte, have contaminated groundwater because the coal ash storage lacks liners. The Charlotte area has at least five billion gallons of coal ash stored at three sites waterfront on the three local lakes of the Catawba River. The Riverbend site on Mountain Island Lake are of particular concern because it is propped up 80 feet above Mountain Island Lake, the drinking water for 860,000 people in Charlotte-Mecklenburg, Gastonia, and Mount Holly. Through a state-certified lab, the Catawba Riverkeeper has also tested coal ash ponds seepage and contaminated groundwater from the ponds as the contaminated liquid flows into the river and its lakes. Tests, including for regulated contaminants not tested for by Duke Energy, revealed exceedences of state standards for elements known to cause health problems at high levels, including arsenic, boron, cobalt, and manganese.

“The ruling leaves no doubt, Duke Energy is past due on its obligation to eliminate the sources of groundwater contamination, its unlined coal ash pits, and the State has both the authority and a duty to require action now,” said D.J. Gerken, senior attorney at the Southern Environmental Law Center who represented the conservation groups in the case. “This ruling enforces a common-sense requirement in existing law – before you can clean up contaminated groundwater, you first must stop the source of the contamination – in this case, Duke’s unlined coal ash pits.”  

Data collected by DENR over several years indicates that many of Duke’s coal-fired power plants are causing groundwater contamination by storing hazardous coal ash in unlined pits often adjacent to major bodies of water, including drinking water reservoirs. The state has asserted however that it can take no action without first determining how far contamination has spread and that it lacks the legal power to require Duke to remove ash from the ponds. Today’s ruling clarifies the State’s authority under the North Carolina groundwater protection law to require Duke to stop the ponds from further contaminating groundwater, before it tackles the long term challenge of cleaning up the groundwater it has already polluted.

Perkins added, “This ruling is particularly important because it covers inactive ponds that have been left behind. Dan River is one example of such ponds. The 71 acres at Riverbend are no longer being utilized. Allen Steam Station on Lake Wylie has at least 62 retired acres of coal ash storage in addition to its 172 active acres. Duke Energy has unlined coal ash storage scattered throughout the state, and all of these areas need to be moved away from water and to lined areas. Otherwise, they will continue to leak and inevitably have a catastrophic failure.”

Lawsuits filed by DENR earlier this year against each coal-fired power plant in the state allege that Duke Energy is violating state groundwater standards with contamination at several of its plants. Duke has already been forced to buy out neighboring property because of contaminated groundwater and to supply alternate drinking sources to nearby homeowners at several of its plants – but has not yet stopped the source of the contamination.

Although almost all of the unlined coal ash ponds in the state have been in operation for decades – some for more than 50 years – the ponds went largely unregulated until December 22, 2008, when a dam burst at the TVA Kingston Fossil Plant causing the largest coal ash spill in the history of the United States. The February 2014 spill on the Dan River was reportedly the nation’s third largest coal ash spill, coating the Dan River with some 70 miles of toxic ash.

Conservation groups are hopeful that the ruling will move the state to use its authority to require that the ash be removed from the ponds and stored in dry, lined landfills. The ruling comes as Duke ceases coal-burning operations at several plants and prepares closure plans for the aging coal ash ponds. Duke and DENR have both indicated that leaving the coal ah in place is very much an option.

Contact Riverkeeper Sam Perkins at Sam@CatawbaRiverkeeper.org or 704-651-5974.

Link to PDF of press release.

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