Courts and Law

Flurry of filings by Duke and state officials spell lengthy delays for coal ash clean up

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In just a little over a year, from lawsuit to settlement in 2012, citizen and conservation groups in South Carolina pushed South Carolina Electric & Gas to begin cleaning up coal ash contamination at its sites there.

State environmental regulators stayed out and the utility stepped up, coming up with a plan to remove the ash from lagoons and either re-use it if possible or move it to lined storage elsewhere.

A similar push was afoot in North Carolina as groups investigated contamination at Duke Energy plants across the state, asked the state’s Environmental Management Commission for a ruling on how groundwater contaminations rules applied to coal ash sites here, and prepared for lawsuits against the company for contamination at its Asheville and Riverbend plants.

But unlike what happened in South Carolina, the state here stepped in and the utility pushed back. Now, nearly two years later, multiple lawsuits involving 14 plants are pending, a grand jury investigation is underway and the state is facing a major environmental management crisis for which no one has a plan.

Plagued by infighting and litigation delay tactics, North Carolina’s coal ash crisis has grown into more than just an environmental disaster. It’s now a political and legal nightmare, the bill for which the state and its residents will be paying for many years to come.

The latest example came late Monday, when Attorney General Roy Cooper filed a notice of appeal of a court ruling that would require Duke Energy to immediately eliminate the source of groundwater contamination at its coal ash pits — in advance of any clean-up plans it might later adopt.

(Duke Energy had already filed its own notice of appeal of that ruling a week before.)

The state’s appeal of that ruling left many scratching their heads, wondering why regulators would contest an order requiring compliance with the state’s own environmental regulations – a task they themselves are charged to do.

The Attorney General offered little explanation other than to say it was just doing its job.

It’s the duty of this office to represent state agencies and commissions, including the Environmental Management Commission, in legal matters,” Noelle Talley said in a statement. “The EMC voted to appeal, and attorneys with our office filed the attached notice of appeal at their request.

But the environmental groups trying to push coal ash clean-up called the appeal just another litigation tactic in cases framed by two themes: eliminate the watchdogs and delay the clean-up.

“Just a week after the state publicly abandoned its sweetheart deal with Duke and promised to ‘enforce’ the law, it has appealed a judicial ruling that confirmed the state’s legal authority to enforce a real solution for coal ash contamination,” said D.J. Gerken, an attorney from the Southern Environmental Law Center representing the groups suing over contamination at the Asheville plant.

Delay, deny, dismiss

Accusations that the state and Duke Energy are more interested in stretching out the lawsuits than addressing the coal ash situation may sound like just chatter from lawyers deep in a legal dispute, but the facts lend credence to those claims.

When the Sierra Club, the Waterkeeper Alliance and the Western North Carolina Alliance notified regulators in January 2013 that they intended to sue Duke Energy over contamination at its Asheville plant if the state would not, North Carolina’s Department of Environment and Natural Resources waited until the last day it had under the law to file suit in place of the groups.

The same thing happened in March of that year when the Catawba Riverkeeper Foundation told regulators it planned on suing Duke for contamination at the company’s Riverbend Plant on Mountain Island Lake.

The state again jumped in on the last day to file suit against Duke.

Over the next several months, rather than aggressively pursuing a clean-up plan, Duke Energy and DENR negotiated a sweetheart deal to settle the cases which included a penalty of less than $100,000 for contamination by a company worth billions and lacked any plan for removal of the coal ash at the two sites.

Despite widespread public objection, Duke and DENR then submitted the proposed settlement to the court for approval in October 2013.

The settlement was still pending In the court in early February when the coal ash disaster at the Dan River occurred, an event that should have changed the tenor of both DENR and Duke Energy’s approach to coal ash contamination across the state.

But despite public overtures by state officials and pronouncements of a need to act quickly, delays continued.

Since the Dan River spill, DENR has diddled around with the proposed settlement –asking the court to suspend consideration of that deal while DENR empaneled a “task force,” then advising the court that it was reconsidering the deal, and finally, in late March, backing off once again.

Duke Energy has sought to use the grand jury investigation opened by the United States Attorney after the Dan River spill as an excuse for not producing documents in the lawsuits, asking the court for a protective order allowing the company to minimize its obligation to disclose information and shield documents from public view.

The court denied that request last week.

And at each step of the way, Duke Energy and DENR have sought to cut out the private groups that have persisted in pushing for coal ash clean-up across the state. They excluded them from settlement negotiations and objected to their participation in the lawsuits.

Despite an order previously entered by court including the groups as parties in the cases, Duke Energy has once again asked the court to cut them out.

Unlike South Carolina’s response, D.J. Gerken said, the state and Duke Energy “have done anything and everything they can to manage the problem with lawyers, rather than come up with an engineering solution.”

We’ve seen two motions for protective orders, two motions for a stay, a delay of filing requirements, objections to discovery – they’re using every tool in their lawyer’s toolbox to delay cleaning up their mess.“

Acting quickly, or not

The recent appeals of the clean-up order entered by Wake County Superior Court Judge Paul Ridgeway could extend those delays for a year or more, ironically over a dispute about how quickly Duke Energy should act in the face of known contamination.

That order arose in a separate case filed before the state sued Duke Energy, in which the environmental groups had asked the state’s Environmental Management Commission for a ruling regarding what actions are required once groundwater contamination is found at coal ash sites.

The groups argued that the law, as stated and as DENR had been interpreting it in enforcement efforts against businesses and landowners other than Duke Energy, required immediate action to control the source of contamination, separate and apart from any obligation to develop and implement a comprehensive clean-up plan.

But DENR argued that that “immediate” obligation does not and cannot apply to coal ash ponds.

The commission agreed, but on review Judge Ridgeway reversed.

Nothing in the Rule suggests that the requirement for “immediate” action means anything other than its customary definition,” he wrote in his March 6 ruling.

Despite Duke’s requests, Ridgeway has refused to stay his ruling, but moving the dispute to the Court of Appeals – where Duke has likewise asked for a stay of the order requiring immediate action — may nonetheless provide that relief.

The appeals by both Duke Energy and the state are disheartening but not surprising, Gerken said.

“We’re disappointed that this administration remains so determined to delay through litigation rather than move forward to stop ongoing pollution of North Carolina’s rivers, lakes and groundwater.”

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