Court allows N.C. citizens’ coal ash suit to proceed

North Carolina community groups with members near Duke Energy’s Belews Creek power plant can continue to press their citizen suit against coal ash pollution, a federal court ruled Monday. The U.S. District Court for the Middle District of North Carolina denied Duke Energy’s motion to dismiss some of the groups’ claims made under the Clean Water Act, letting the lawsuit move forward to discovery and possible trial.

Representing Appalachian Voices, the Stokes County Branch of the NAACP, and the North Carolina State Conference of the NAACP, SELC filed the suit in the Middle District of North Carolina in December 2017.

In the decision, the court disagreed with Duke Energy’s claim that the community groups had not set out the facts necessary to allege a violation, stating that “this argument simply misses the mark.”

The court also rejected arguments—which Duke Energy already had raised without success in coal ash pollution lawsuits against its Buck and Mayo sites—that the North Carolina Department of Environmental Quality is diligently prosecuting the same permit violations in state court that the community groups have raised, and that Duke Energy’s Clean Water Act permit “shielded” it from this citizen enforcement.

The suit alleges that Duke Energy is violating the Clean Water Act by polluting Little Belews Creek and the groundwater surrounding the site, and by using Little Belews Creek as a channel to dump its wastewater into the Dan River. In the past, there have been fish kills in Belews Lake from coal ash pollution. Duke Energy’s coal ash pollution has also contaminated the Dan River with high levels of bromides, which have been linked to carcinogens in downstream drinking water supplies for the towns of Eden and Madison.