Court rules in favor of citizens’ rights in N.C. coal ash case

Homeowners living near Duke Energy’s Buck power plant, pictured above, have found elevated levels of contaminants in their drinking water. (© Waterkeeper Alliance)

A ruling late yesterday questioned the North Carolina Department of Environmental Quality for failing to enforce water protections and approved citizen involvement in a coal ash case against Duke Energy.

The ruling from the U.S. District Court for the Middle District of North Carolina came down against Duke’s Motion to Dismiss and Motion to Stay in a Clean Water Act case filed by SELC on behalf of the Yadkin Riverkeeper and Waterkeeper Alliance. The case seeks cleanup of leaking coal ash at Duke Energy’s Buck facility near the Yadkin River in North Carolina.

The court rejected Duke Energy’s motion to dismiss “in its entirety,” ruling that the Riverkeepers could proceed with their enforcement of all claims, including claims related to unlawful coal ash seepage, prohibited leaks into the groundwater and river, and dam safety violations. 

“The Court is unable to find that DENR was trying diligently or that its state enforcement action was calculated, in good faith, to require compliance with the [Clean Water] Act,” reads the ruling. “Accordingly, DENR’s state enforcement action does not bar the Riverkeepers from pursuing their Seep Claim and Hydrological Connection Claim in this citizen suit. 

“In addition, the Court notes that its determination of DENR’s lack of diligence has been further confirmed in the year since the Riverkeepers filed suit,” the ruling continued. Here the court is referring to the agreement between the Department of Environmental Quality (DEQ, formerly DENR) and Duke Energy to stop the DEQ’s investigation in the state enforcement action, as well as to DEQ’s attempt to put the brakes on its own enforcement action altogether.

The court also rejected Duke Energy’s motion to stay, finding that further delay “has the potential to substantially harm the environment and the individuals who live near the Buck plant and draw their daily supply of water from allegedly contaminated wells.”

Frank Holleman, senior attorney at SELC who represents the Riverkeepers in court, shared the following statement after the decision.

“This court ruling upholds citizens’ right to enforce the law against polluters like Duke Energy to protect clean water when DENR/DEQ fails to do so. In dismissing Duke Energy’s attempt to block citizens from protecting clean water against its pollution, the court found that DENR/DEQ had not been diligently pursuing enforcement against Duke Energy’s still leaking coal ash. Instead, DENR/DEQ has been diligently protecting Duke Energy. 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.”

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