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Judge sides with riverkeeper in federal lawsuit

Environmental groups on Wednesday scored a victory in a federal lawsuit against Duke Energy.

A federal judge ruled against Duke’s motion to dismiss or delay a lawsuit brought by the Yadkin Riverkeeper and alleging Clean Water Act violations at Buck Steam Station. In a 37-page ruling, U.S. District Judge Loretta Biggs focuses on: the riverkeeper’s right to make a complaint in court, the Coal Ash Management Act’s future and a lack of enforcement action by state government.

The Yadkin Riverkeeper, represented by the Southern Environmental Law Center, alleges Duke violates its state permit at Buck by discharging pollutants through seeps and groundwater. The Riverkeeper also claims Duke isn’t meeting dam safety requirements.

Biggs rejected Duke Energy’s motion to dismiss the case in its entirely. She expressed doubt that the state has been diligently enforcing Clean Water Act laws near Buck Steam Station.

“The court is unable to find that (the Department of Environmental Quality) was trying diligently or that its state enforcement action was calculated, in good faith, to require compliance with the Clean Water Act,” Biggs wrote while discussing the riverkeeper’s claim that Duke made unauthorized discharges into the Yadkin River. The Department of Environmental Quality’s “lack of diligence has been further confirmed in the year since the riverkeepers filed suit. (DEQ) has now been litigating its enforcement action for over two years.”

When discussing Duke’s request for a stay, Biggs said a delay would allow Duke’s alleged violations to persist, “resulting in the further alleged discharge of pollutants into the Yadkin River, High Rock Lake and their tributaries.”

One significant difference between the Yadkin Riverkeeper’s federal suit and other coal-ash-centered discussion at Buck Steam Station is the focal point of potential contamination. The federal suit focuses on how coal ash is affecting the Yadkin River. In recent months, the focal point has mostly been contaminated well water.

“These are ongoing violations that demand an immediate response,” said Yadkin Riverkeeper Will Scott. “We are pleased by the recognition that the Clean Water Act protects the Yadkin from groundwater contaminated by these unlined coal ash lagoons and from the potential catastrophic failure of the old, leaking dams that hold them back from the river.”

Biggs discusses items outside of court — legislation and enforcement by the Department of Environmental Quality. In her ruling, she considered how legislative and regulatory developments have changed how Duke manages its coal ash ponds.

Indeed, a significant amount of discussion and scientific testing regarding coal ash have taken place without declaratory judgements in court. Duke and the Department of Environmental Quality prefer it that way, according to statements issued by both groups after the ruling. State government and Duke agreed in September to a $7 million settlement that included all of its coal fired plants.

Sam Hayes, general counsel for the Department of Environmental Quality, called the Yadkin Riverkeeper’s lawsuit frivolous.

“In contrast to previous administrations who ignored the problem and issued policies that restricted enforcement, this administration is the first to address the 60-year-old coal ash issue,” Hayes said. “We are making significant progress in implementing the toughest coal ash law in the nation.”

Duke Energy spokeswoman Erin Culbert said environmental groups should drop lawsuits because the company has already committed to close all 32 ash basins.

“As we said last week, they need to take ‘yes’ for an answer, since we’ve already committed — and are required — to closing basins in a way that protects groundwater and communities,” Culbert said.

However, plans aren’t finalized. Duke has proposed excavating 20 of its 32 ash ponds in North Carolina, although Buck Steam Station isn’t one of them. Culbert said Buck remains on the list of potential facilities where coal ash ponds will be capped in place. All 32 have to be closed by 2029 under state law.

Culbert also called the Yadkin Riverkeeper’s federal lawsuit unnecessary. The federal lawsuit is similar to one in state court.

By not diligently pursuing court action, however, environmental groups allege state government is protecting Duke.

“We are continuing our efforts in court to protect clean water for the people of North Carolina from Duke Energy’s coal ash contamination leaking every day into our rivers, lakes and groundwater across our state,” said Frank Holleman, a senior attorney for the Southern Environmental Law Center.

 

 

 

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