State Supreme Court to dictate Duke Energy’s next move

Coal ash comes to the state Supreme Court on Monday for an answer to what should be a relatively simple question.

Do North Carolina’s groundwater rules require Duke Energy to immediately eliminate confirmed sources of contamination at its coal ash plants?

That the answer could be anything other than a resounding “yes” speaks directly to the morass that the unraveling of the state’s coal ash mess has become.

Plenty has happened since 39,000 tons of coal ash from a Duke plant spilled into the Dan River last February.

By then, conservation groups had already been pushing regulators to pursue the company for groundwater contamination at its plants. In the year that followed, the state finally filed enforcement actions against Duke. Conservation groups also filed separate lawsuits alleging violations of the federal Clean Water Act.

The company announced a proposed $100 million settlement of criminal charges with the U.S. Attorney a few weeks ago, and just yesterday the state Department of Environment and Natural Resources announced a $25 million fine imposed on Duke for contamination at its Sutton Plant in Wilmington.

But still, nothing’s been done to stop contaminants from seeping into the groundwater.

That’s because environmental groups, state regulators and Duke Energy can’t agree on what the law requires.

The groups say that the law and logic dictate that contamination — once identified – must be immediately stopped at its source.

The state and Duke say that they need time, though, and read the law to allow them to develop a clean-up plan before actually having to stop the pollution.

Together they’ll make their arguments before the state’s highest court Monday, and the ruling that follows will set the pace and the process by which Duke will have to abide in finally cleaning up coal ash at its 14 plants.

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The case before the court, Cape Fear River Watch v. North Carolina Environmental Management Commission, began in 2012 with a request by Cape Fear River Watch and other conservation groups for a simple determination of what state groundwater rules required when contamination from coal ash lagoons had been confirmed.

By that time, regulators had been monitoring groundwater at Duke plants and obtained samples confirming contamination but did little more, saying that was all the law required while the company developed a long-range plan.

In response, the groups asked the state Emergency Management Commission to construe groundwater rules exactly as written – namely, that companies facing confirmed pollution must “take immediate action to eliminate the source” of contamination.

But the Commission rejected that request in December 2012, holding instead that the state’s groundwater rules did not require “immediate action” in the ordinary sense when it came to the sources of contamination in coal ash lagoons. Rather, EMC said, such action should occur within the framework of a broader plan that includes a prescribed series of clean-up steps.

On review, Superior Court Judge Paul C. Ridgeway disagreed, holding just a month after the Dan River spill that the law meant what it said: immediate elimination of contamination at the source.

Ridgeway’s ruling left little doubt “that Duke Energy was past due on its obligation to eliminate the sources of groundwater contamination at its unlined coal ash pits and that the State had both the authority and duty to require action,” D.J. Gerken, a senior attorney at the Southern Environmental Law Center representing the conservation groups said at the time.

Duke Energy and the Commission then sought review in the Court of Appeals, but before the case could be heard there the Supreme Court took the unusual step of removing it for direct review by the justices.

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The court’s direct taking of the case along with a handful of others — private school vouchers, for example — prompted conjecture that at least some of the justices might disagree with the Ridgeway ruling, particularly in light of the fact that the court takes only a fraction of the cases brought up for their review.

It also raised the specter that politics might be at play. As pointed out in reports by both the Center for American Progress and the Institute for Southern Studies, Duke Energy contributed millions during the 2012 and 2014 elections to support candidates in North Carolina.

That included monies the company funneled through the Washington, D.C.-based Republican State Leadership Committee to support Supreme Court candidates who might ultimately resolve lawsuits in which Duke was a party — in 2012 to help re-elect Justice Paul Newby, and in 2014 to help Justice Mark Martin become Chief Justice and support challengers to sitting Justices Robin Hudson and Cheri Beasley.

Martin, Newby and the other justices will now decide what immediate action Duke Energy must take, if any, to abate groundwater contamination at its plants – a ruling that will bear directly upon the 14 DENR enforcement actions pending across the state.

What that includes may be dictated in part by the legislature’s passage of the Coal Ash Management Act in 2014.

“The Act contemplates a phased approach to assessment and corrective action and a proposed schedule for clean-up instead of the immediate response required by the Superior Court,” EMC said in its brief on appeal.

Should the justices accept that argument, coal ash contaminants will continue to seep into the groundwater while Duke Energy comes up with a plan.

That’s a result that defies logic, SELC attorney Gerken said at the time of the Ridgeway ruling.

“[The judge’s 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.”

(Note: This article has been updated with a correction to the number of tons of coal ash spilled into the Dan River in February 2014. That number is 39,000 tons, according to the EPA.)

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