North Carolina Supreme Court Hears Arguments on Duke Coal-Ash Pollution

Lawyers for North Carolina environmental groups urged the North Carolina Supreme Court on Monday to force Duke Energy to immediately stop the groundwater contamination that’s been seeping for years from Duke’s coal-ash pits at 14 sites around the state.

The four organizations want the Supreme Court to uphold Wake County Superior Court Judge Paul Ridgeway’s 2014 ruling, which required Duke to act immediately to stop polluting groundwater beneath its coal-ash pits.

The hour-long Supreme Court arguments stemmed from Charlotte-based Duke’s appeal of Judge Ridgeway’s ruling. Duke’s lawyer, James Cooney III, told the court the case should be thrown out because last year’s pollution standards are no longer relevant.

Cooney noted that the state legislature passed a comprehensive law last year, creating a Coal Ash Management Commission that will prioritize the closure and cleanup of Duke’s coal-ash pits.

“The world is a different place now,” Cooney told the justices. “The entire regulatory framework has been rewritten.”

The Supreme Court can ask Judge Ridgeway to issue another ruling or it can send the matter to the North Carolina Environmental Management Commission. Or, the justices can simply issue their own decision on whether Duke should move ahead on an immediate timeline rather than a schedule imposed by the newly created Coal Ash Management Commission.

The Environmental Management Commission, which handles protection of water and air resources, joined Duke in the appeal. The EMC was represented by a lawyer from the North Carolina attorney general’s office.

Four groups — the Sierra Club, the Cape Fear Riverkeeper, the Waterkeeper Alliance and the Western North Carolina Alliance — have been fighting Duke’s coal-ash facilities for years.

Much of Monday’s legal arguments had to do with a definition of the word “immediate.” The lawyer for the Southern Environmental Law Center, D.J. Gerken, said Duke is required by law to move with urgency.

“These are large, unlined pits with ash buried below the groundwater table,” Geken said. “What the law requires is elimination of the source.”

The law center is representing the environmental groups in the case.

Since the legislature created the Coal Ash Management Commission and directed Duke to excavate ash from four sites, the North Carolina Supreme Court case is now largely over a subset of Duke’s coal-ash pits, ones that have been inactive for years, some grown over with forests.

It’s not clear how many of these sites exist, because some were in use decades ago and later bulldozed over before permitting was required, Gerken said. Some now are sites for buildings or other facilities.

The coal-ash sites are operated by Duke Energy’s two utilities subsidiaries: Charlotte-based Duke Energy Carolinas and Raleigh-based Duke Energy Progress.

Last year, the state sued Duke over groundwater pollution percolating from the coal-ash sites, alleging contamination at every one. Last week, the suing agency, the North Carolina Department of Environment and Natural Resources, fined Duke $25 million for groundwater contamination at Duke’s Sutton power plant in Wilmington, North Carolina, and the agency is planning further action at other sites.

In February, Duke agreed to pay a federal fine of $100 million for violations of the U.S. Clean Water Act, the consequence of a Duke coal-ash storage site spilling up to 39,000 tons of coal ash into the Dan River in February 2014.

On Monday, Duke’s lawyer told the justices that groundwater contamination will not necessarily cause harm to the public.

“The groundwater may or may not reach the river,” Cooney said. “We’re talking about pollutants that are measured in parts per million going into the French Broad River, which is measured in thousands of gallons of water per minute.”

This article appeared in print in the March 17th, 2015 edition of Hamodia.