Duke Energy Attempts to Avoid Consequences of Illegal Coal Ash Pollution in North Carolina

Chapel Hill, N.C.—In a desperate attempt to avoid the consequences of its illegal coal ash water pollution in North Carolina, Duke Energy filed a baseless law suit in Virginia against the Roanoke River Basin Association.  Duke Energy’s unprecedented legal maneuver attempts to avoid having North Carolina’s federal courts address Duke Energy’s violations of the Clean Water Act at its Roxboro coal ash lagoons in Person County, North Carolina.  Duke Energy’s coal ash pollution is dumped directly into two water bodies located in North Carolina – Hyco Lake and Sargents River – not in Virginia, and its coal-fired Roxboro plant is located in North Carolina, not Virginia.

Under the Clean Water Act, next week the Roanoke River Basin Association will be able to file a Clean Water Act suit against Duke Energy in North Carolina.  In March, the Southern Environmental Law Center, on behalf of the association, gave Duke Energy notice of its intent to enforce the Clean Water Act against Duke Energy’s illegal North Carolina Roxboro coal ash pollution in the North Carolina federal courts.  The Clean Water Act gives Duke Energy 60 days to stop its pollution, after which the Southern Environmental Law Center may file suit on behalf of the Association in federal court in North Carolina.  Duke Energy’s Virginia suit is an obvious attempt to avoid justice in the North Carolina federal courts.

“Duke Energy is scared that it will be held responsible in North Carolina for its coal ash pollution, so it has fled across the state line,” said Frank Holleman, senior attorney at the Southern Environmental Law Center.  “Duke Energy needs to clean up its coal ash mess, and not create a legal mess by bringing a childish lawsuit.”

The Clean Water Act specifically requires any lawsuit regarding a Clean Water Act violation to be brought where the source of the pollution is located.   (see 33 U.S.C. Section 1365 (c))  The Roxboro coal ash pollution is discharged in Person County, N.C., in the District of the United States District Court for the Middle District of North Carolina.  That United States District Court rejected previous attempts by Duke Energy to dismiss Clean Water Act suits against its illegal pollution at its Mayo facility, also in Person County, North Carolina, and its Buck facility, in Salisbury, North Carolina. After Duke Energy lost motions before the United States District Court for the Middle District of North Carolina, the Southern Environmental Law Center, on behalf of the Yadkin Riverkeeper and the Waterkeeper Alliance, subsequently negotiated a settlement agreement with Duke Energy requiring Duke Energy to remove all its coal ash from its Buck coal ash lagoons.

“Duke Energy cannot run to another state, because it knows that it will be held accountable for its coal ash pollution in the courts of North Carolina,” said Mike Pucci, President of the Roanoke River Basin Association.  “The people of North Carolina and Virginia expect Duke Energy to act like a responsible adult, not like a law breaker desperately trying to avoid facing up to the consequences of its wrongful activities.”

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The Southern Environmental Law Center is celebrating its 30th anniversary this year. With nine offices across the region (Charlottesville, VA; Chapel Hill, NC; Atlanta, GA; Charleston, SC; Washington, DC; Birmingham, AL; Nashville, TN; Asheville, NC; and Richmond, VA), SELC is widely recognized as the Southeast’s foremost environmental organization and regional leader. SELC works on a full range of environmental issues to protect the South’s natural resources and the health and well-being of all the people in our region. www.SouthernEnvironment.org