Conservation Groups Send Notice to Duke Energy of Clean Water Act Violations from Coal Ash Pollution

Chapel Hill, N.C. – On behalf of the Roanoke River Basin Association, the Southern Environmental Law Center today sent notice of its intent to sue Duke Energy to stop it from violating the federal Clean Water Act by capping in place millions of tons of leaking coal ash and to stop its illegal water pollution at its Mayo facility in Roxboro, North Carolina.  The N.C. Department of Environmental Quality (DEQ) has proposed a “Low Priority” classification for Duke’s Mayo facility that could allow Duke Energy to cap the ash in the unlined, leaking pit, burying 70 feet of groundwater and a stretch of Crutchfield Branch stream in coal ash forever.  At present, Duke Energy is also illegally polluting groundwater, Mayo Lake, Crutchfield Branch, and the Roanoke River Basin with coal ash pollution.

“Person County, Mayo Lake, and the Roanoke Basin deserve to be protected from Duke Energy’s coal ash pollution, both now and in the future,” said Frank Holleman, senior attorney for the Southern Environmental Law Center.  “By ‘capping in place,’ Duke Energy will obliterate part of the Roanoke River Basin and Person County groundwater with millions of tons of coal ash. Duke Energy’s current operation of the leaking Mayo coal ash pit and any plans to bury North Carolina’s water resources in coal ash violate the Clean Water Act.”

Duke Energy has 6.9 million tons of coal ash at Mayo, stored in an unlined, leaking pit on the banks of Mayo Lake and on top of Crutchfield Branch.  Crutchfield Branch flows out of the Mayo site into Virginia and the Hyco and Dan Rivers and back into North Carolina, as part of the Roanoke River Basin. Duke Energy’s operations are currently polluting Crutchfield Branch, and capping the ash in place would pollute Crutchfield Branch and the Roanoke River Basin forever.  Duke Energy has discharged coal ash, other flows of polluted water, and sewage into its Mayo coal ash lagoon.

In North Carolina’s Coal Ash Management Act process, DEQ has to date ranked the Mayo site as a “low” priority, which would allow Duke Energy to store the ash in an unlined polluting pit on the banks of Mayo Lake, rather than removing the sludge and coal ash to safe, dry lined storage.  At a recent public hearing, Person County citizens made it clear that the Mayo coal ash should be excavated from the unlined pit.  The federal Clean Water Act takes precedence over any DEQ rating and prohibits capping the ash in the groundwater and Crutchfield Branch.

“The Roanoke River Basin is a high priority natural resource for North Carolina and Virginia,” said Andrew Lester, Executive Director of the Roanoke River Basin Association.  “We cannot allow Duke Energy to bury our water resources in coal ash and sludge, and we cannot allow the Roanoke River Basin to be forever polluted by Duke Energy’s coal ash.”

Under the federal Clean Water Act, citizens groups must give the polluter, DEQ, and the United States Environmental Protection Agency notice of their intent to enforce the Clean Water Act.  After the passage of 60 days, the citizens group may file suit in United States District Court to stop the illegal pollution.  SELC has filed five other federal Clean Water Act suits against Duke Energy for its coal ash pollution in North Carolina.  For four of those sites, Duke Energy has agreed to excavate the ash and move it to dry, lined storage.  In 2015, Duke Energy companies pleaded guilty 18 times to nine coal ash Clean Water Act crimes committed across North Carolina and remain under criminal probation.

The Mayo site is also the subject of a state court enforcement action against Duke Energy, in which the Roanoke River Basin is a party.  In that suit, DEQ has taken no steps to require Duke Energy to remove the polluting coal ash from the Mayo unlined pit. In October of 2015, the United States District Court for the Middle District of North Carolina ruled that it could not conclude that DEQ was diligently prosecuting that suit or pursuing the suit in good faith to require compliance with the Clean Water Act.