Press Release | September 12, 2013

Conservation Groups in Federal Court over Duke Energy Progress’s Coal Ash Pollution of Sutton Lake and Groundwater near Wilmington

Conservation groups today filed suit in federal court against Duke Energy Progress, Inc., to clean up the company’s toxic coal ash pollution of Sutton Lake near Wilmington, N.C, and coal ash pollution of groundwater at its Sutton Plant.  The coal ash pollution threatens to destroy the fishery of Sutton Lake, a popular regional fishing lake, and is moving toward the groundwater wells that supply drinking water for the nearby Flemington community, a diverse low-income neighborhood.  The Southern Environmental Law Center filed the Clean Water Act suit in United States District Court on behalf of Cape Fear River Watch, the Sierra Club, and the Waterkeeper Alliance.

“Duke Energy Progress’s toxic coal ash pollution is killing a regional fishing lake and is threatening a community’s drinking water,” said Frank Holleman, senior attorney for the Southern Environmental Law Center.  “It is long past time to take strong, effective action to clean up this pollution of the Wilmington community.”

For years, Duke Energy Progress has dumped coal ash at Sutton in pits with no liners, and for years it has discharged untreated polluted water from its coal ash storage pits into Sutton Lake.  In response to an official notice from the conservation groups, the North Carolina Department of the Environment and Natural Resources recently brought an enforcement action in state court against Duke Energy Progress, citing groundwater pollution from Arsenic, Selenium, Thallium, Lead, Antimony, Boron, Manganese, Iron and other pollutants, as well as specific “Risk Factors” for the drinking water wells for the Flemington community.  DENR stated under oath that Duke Energy Progress’s pollution “poses a serious danger to the health, safety, and welfare of the people of the State of North Carolina and serious harm to the water resources of the State.”

However, the DENR state enforcement action did not seek to clean up Sutton Lake and did not enforce permit and Clean Water Act standards against the groundwater pollution at Sutton.   Today’s new action from SELC, Cape Fear River Watch, the Sierra Club and the Waterkeeper Alliance seek action to enforce these critical standards and ensure Duke Energy Progress stops polluting groundwater.

“Sutton Lake means a great deal to the people who live nearby and to the Wilmington community.  It is a natural and a tourism resource,” said Kemp Burdette, the Cape Fear Riverkeeper.  “We need to save Sutton Lake from Progress’s toxic coal ash pollution.”

The plume of contaminated groundwater is migrating towards wells that provide drinking water to the neighborhood around Flemington Road, off Highway 421, east of the Sutton facility. The North Carolina Division of Environmental Health has acknowledged the risks of contamination to drinking water wells in the area, and, in its state enforcement suit, DENR confirmed the Sutton groundwater contamination flows towards the Flemington wells. A recent “Source Water Assessment Program Report” prepared by the North Carolina Division of Environmental Health, Public Water Supply Section assigned these drinking water wells’ “Inherent Vulnerability Rating,” “Contaminant Rating,” and “Susceptibility Rating” the highest risk ratings and listed the Sutton facility as a “Potential Contaminant Source” for these wells.

“With today’s new legal action, we are asking the United States Environmental Protection Agency to enforce the Clean Water Act and ensure North Carolinians have access to clean, safe drinking water,” said Kelly Martin, with Sierra Club’s Beyond Coal campaign. “The Sierra Club and our partners in this case are working to ensure Duke Energy Progress is held accountable and will clean up their pollution. North Carolinians must be guaranteed access to clean, safe drinking water, and that means holding Duke Energy Progress to the standards of the Clean Water Act now.”
Progress has polluted Sutton Lake with Selenium and other pollutants from its coal ash.  DENR has determined that Progress’s Selenium pollution represents a “High” hazard for reproductive failure of fish and waterfowl.  DENR’s most recent published assessment noted that largemouth bass in Sutton Lake were in poor condition, and that from 2008 to 2010, the largemouth bass population declined by 50 percent.  In 2009, DENR staff stated that “multiple requests for updated selenium concentrations [to Progress] have not been responded to” and that “once selenium levels reach a certain point, there will no longer be fishery issues with which to be concerned.”

“Our communities and our natural resources must be protected from the toxic threat of coal ash pollution,” said Donna Lisenby, global coal coordinator for the Waterkeeper Alliance. “We are taking action to protect one of the region’s favorite fishing lakes and a community’s drinking water.”

About Cape Fear River Watch
Founded in 1993, Cape Fear River Watch works to protect and improve the water quality of the Lower Cape Fear River Basin through education, advocacy, and action.

About the Sierra Club
Sierra Club is America’s largest and most influential grassroots environmental organization. Inspired by nature, we are 2.1 million of your friends and neighbors, working together to protect our communities and the planet. Read more at

About the Waterkeeper Alliance
Founded in 1999 by environmental attorney and activist Robert F. Kennedy, Jr. and several veteran Waterkeeper Organizations, Waterkeeper Alliance is a global movement of on-the-water advocates who patrol and protect over 100,000 miles of rivers, streams and coastlines in North and South America, Europe, Australia, Asia and Africa.

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Press Contacts

Frank Holleman

Senior Attorney with a focus on litigation

Phone: 919-967-1450