DENR May Reinstate Suspended Coal Ash Settlement

Chapel Hill, NC – The North Carolina Department of Environment and Natural Resources told the North Carolina Superior Court that it may reinstate the proposed settlement it brokered with Duke Energy over its illegal pollution at its coal ash lagoons in Asheville and on Mountain Island Lake near Charlotte.  Negotiated privately between DENR and Duke Energy, the deal does not require Duke Energy to actually stop polluting or to move its coal ash to safe, dry storage in lined landfills. Last summer, the settlement was roundly condemned by nearly all of the 5,000 people and organizations who submitted comments after the proposed deal became public.

In a letter to the court dated February 20, 2014, DENR reported that it may again seek approval of the settlement, which only days earlier it had withdrawn. The letter came only 10 days after DENR asked the court to suspend consideration of the settlement on February 10, following intense media scrutiny of DENR’s deal with Duke Energy in the aftermath of the Dan River catastrophe.

DENR also indicated that it may add other Duke Energy coal ash sites or propose other modifications to the settlement.  The agency stated that it will reach a decision by March 21, 2014.
The Southern Environmental Law Center represents the Sierra Club, Western North Carolina Alliance, and Waterkeeper Alliance in the enforcement action on Duke Energy’s Asheville facility and represents the Catawba Riverkeeper Foundation in the enforcement action on Duke Energy’s Riverbend facility on Mountain Island Lake.

“After the Dan River disaster, the convening of a federal criminal grand jury, and widespread calls for the cleanup of Duke Energy’s illegally polluting coal ash lagoons, it’s hard to believe that DENR is now telling the court that it may bring this discredited proposal back up,” said Frank Holleman, senior attorney for the Southern Environmental Law Center who represents the Catawba Riverkeeper Foundation.  “It’s time to clean up the pollution and put this do-nothing proposal behind us.”
The latest subpoena from the federal criminal grand jury served on DENR inquires into the settlement DENR reached with Duke Energy and seeks all documents concerning the settlement and the litigation that DENR and Duke Energy try to end through the settlement.  Additional subpoenas seek any evidence that Duke Energy has provided anything of value to a number of DENR officials and employees.

“DENR is apparently considering the possibility of shielding more Duke Energy coal ash pits under its do-nothing settlement deal with Duke, which requires no real action to clean up of those coal ash lagoons,” said DJ Gerken, senior attorney at Southern Environmental Law Center who represents conservation groups calling for a cleanup of Duke Energy’s Asheville coal ash pollution.  “It’s past time for DENR to come to its senses and require Duke to stop coal ash pollution – Duke may prefer to delay cleaning up the pollution caused by these dangerous coal ash lagoons, but the people of North Carolina deserve better.”

“While state regulators continue playing shell games, Duke’s ash dumps continue to leak toxic waste into North Carolina’s rivers, lakes, and reservoirs,” said Waterkeeper Alliance attorney Peter Harrison. “The public is demanding an end to Duke’s ash pollution, but once again, DENR is failing to pursue a path to ensure effective, common-sense cleanup at these sites.”

“More delay and endless study from DENR means more risk and more pollution from Duke Energy’s toxic coal ash waste,” said Kelly Martin, senior campaign representative with Sierra Club. “We can’t afford more pollution and more spills. It’s time for Duke Energy to clean up all of its risky coal ash sites in North Carolina.”

“Seven months after this settlement was proposed, we’ve had almost 5,000 objections and practically no support for it,” said Sam Perkins, Catawba Riverkeeper. “The Dan River spill demonstrated that the people who objected were right – leaving these toxic mounds waterfront is a bad idea. We need to move the coal ash away from water, and Duke’s denial of this simple fact is extremely concerning for the millions of people whose drinking water lies below these sites.”

The Superior Court plans to hold a hearing on April 4, 2014, on pending motions in the civil enforcement cases against Duke Energy’s coal ash pollutions.  These suits were brought by DENR after the Southern Environmental Law Center notified DENR and Duke Energy that it would enforce the Clean Water Act against Duke Energy for coal ash pollution.