SELC, N.C. conservation groups reach settlement on coal ash pollution near Wilmington

Duke Energy’s Sutton plant was the subject of a settlement agreement with conservation groups that secured $1.5 million for clean water and conservation in the lower Cape Fear Watershed near Wilmington, N.C. (© Kemp Burdette/Cape Fear Riverkeeper)

Conservation groups are giving thanks for reaching a settlement with Duke Energy that secures up to $1.5 million for water quality and conservation efforts in the lower Cape Fear Watershed near Wilmington.

Earlier this year, the N.C. Superior Court ordered that Duke Energy excavate all the coal ash from leaking, unlined pits at its Sutton plant, and that excavation is underway. However, that state court order did not resolve the claims of conservation groups regarding coal ash pollution of Sutton Lake and the Cape Fear River. Those claims were pending, until today, in a separate federal suit in the U.S. District Court for the Eastern District of North Carolina. Today’s settlement resolves that federal case, where SELC represents Cape Fear River Watch, Sierra Club, and Waterkeeper Alliance.

Under this settlement, Duke Energy will place $1 million in a fund to improve water quality and conserve watershed lands in the lower Cape Fear Basin at and below the Sutton plant. Duke Energy will provide up to $250,000 in additional funds as a dollar-for-dollar match for other money raised by conservation groups. The result is a $1.5 million investment in the waters and watershed lands of the lower Cape Fear Watershed that are used and enjoyed by local communities. The federal litigation regarding the Sutton facility will be dismissed.

“This settlement will benefit the waters, lands, and communities of the lower Cape Fear Watershed for years to come,” said SELC Senior Attorney Frank Holleman, who represents the conservation groups in the case. “With this settlement, the conservation groups have now achieved their goals to address Duke Energy’s coal ash storage at Sutton. The Sutton coal ash is being moved to safe dry, lined storage, the water from the Sutton coal ash lagoons is being treated, the Flemington community has gotten a waterline, and now the waters of the Cape Fear will be improved to compensate for the coal ash pollution of our waters.”

The funds will be administered and invested by an oversight board made up of representatives of Cape Fear River Watch, Waterkeeper Alliance, Duke Energy, the Department of Environmental Studies at the University of North Carolina at Wilmington, the National Oceanic and Atmospheric Association, and the Southeastern North Carolina Environmental Justice Coalition.

“The Cape Fear River and its watershed will benefit tremendously from this settlement,” said Kemp Burdette, the Cape Fear Riverkeeper.  “We’ve been fighting to protect the waters of the Cape Fear from coal ash pollution, and this settlement is a step forward in restoring the Cape Fear and its watershed.”

The litigation over Duke Energy’s coal ash storage at Sutton began with a 60-Day Notice under the Clean Water Act issued by SELC in 2013. Fifty-nine days later, a state court enforcement action was filed in N.C. Superior Court, and the court allowed conservation groups to intervene in that proceeding. SELC also filed a separate federal Clean Water Act suit addressing coal ash pollution of the Cape Fear River and Sutton Lake. After the Superior Court’s order requiring excavation of all coal ash at Sutton and this settlement redressing water pollution, all the litigation dealing with the Sutton site has concluded.

Litigation dealing with eight of Duke Energy’s 14 leaking, unlined coal ash sites in North Carolina has now been concluded. By court order or settlement, conservation groups have now resolved coal ash pollution litigation with Duke Energy at Riverbend, Asheville, Sutton, Dan River, Cape Fear, Lee, Weatherspoon, and Buck with requirements for excavation of all coal ash at those sites to dry, lined storage or recycling for concrete. Conservation groups represented by SELC continue to enforce the law in court at Duke Energy’s Mayo, Roxboro, Belew’s Creek, Cliffside (Rogers), Marshall, and Allen sites to obtain protections for communities and rivers across North Carolina.

“This is one more step to protect and restore North Carolina’s rivers and lakes from the effects of coal ash pollution,” said Pete Harrison, Waterkeeper Alliance’s attorney. “We want to see that the communities and rivers at Duke Energy’s other six sites are also protected from coal ash pollution.”

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