Efforts to Stop Duke Energy’s Coal Ash Pollution of Mountain Island Lake Move to Federal Court

The Southern Environmental Law Center has filed suit in Federal Court against Duke Energy for its pollution of Mountain Island Lake, the source of drinking water for over 750,000 people in the greater Charlotte area.  The suit details how Duke Energy has discharged toxic metals and other harmful substances from coal ash in unlined lagoons into Mountain Island Lake, the Catawba River, and groundwater at its Riverbend facility for years, in violation of its water pollution elimination permit and state and federal laws.

This suit, filed in United States District Court in Charlotte on behalf of the Catawba Riverkeeper Foundation, follows a suit brought in Mecklenburg County state court by North Carolina against Duke Energy.  That suit was filed on May 24, in response to a 60-day Notice filed in March by the Southern Environmental Law Center and the Catawba Riverkeeper Foundation setting out their intent to bring suit against Duke Energy for its illegal pollution of Mountain Island Lake.

The Federal Clean Water Act allows citizens to sue a polluter when the state has filed suit but has failed to enforce a standard or limitation that restricts water pollution.  In the state court proceeding, North Carolina did not enforce a provision of Duke Energy’s water pollution elimination permit that forbids Duke Energy from allowing substances removed by its coal ash lagoons to enter groundwater or Mountain Island Lake.  North Carolina also did not enforce the provisions of the permit and the Clean Water Act that prohibit coal ash pollution from the facility entering Mountain Island Lake through contaminated ground water.

“North Carolina has not sought to enforce two of the strongest legal grounds for stopping Duke Energy’s pollution of Mountain Island Lake,” said Frank Holleman, senior attorney for the Southern Environmental Law Center.  “We have brought this suit to make sure that the people who drink the water from the Lake, live near the Lake, and enjoy the Lake have the strongest legal protection from Duke Energy’s pollution.”

In addition to the federal court lawsuit, on June 6 the Southern Environmental Law Center and the Catawba Riverkeeper Foundation filed to intervene in North Carolina’s state court lawsuit, in order to ensure that enforcement action is fully prosecuted at the state level.

“The Catawba River and the communities that depend upon Mountain Island Lake deserve the strongest protection from toxic pollution of the region’s drinking water reservoir,” said Rick Gaskins, executive director of the Catawba Riverkeeper Foundation.

Only a leaking 80-foot tall earthen berm on a peninsula into the lake separates millions of tons of coal ash in unlined lagoons from the drinking water reservoir. The berm is leaking numerous streams of contaminated water into the lake.  In fact, Duke Energy even constructed channels to illegally assist some contaminated flows into the drinking water reservoir.

Monitoring data show Riverbend’s unlined lagoons have contaminated the groundwater at the site and flowing into Mountain Island Lake for years.  The pollution includes arsenic, cobalt, boron, barium, strontium, manganese, zinc, and iron. Testing by the Catawba Riverkeeper Foundation indicates that Duke Energy is discharging arsenic into Mountain Island Lake in concentrations at least twice the applicable standard, cobalt at 52 times the standard, manganese at 128 times the standard, and iron at 27 times the standard.

At its new Cliffside facility in Rutherford County, Duke Energy now stores coal ash in a dry state in double lined landfills.   At Mountain Island Lake, the coal ash is stored in a wet state in unlined lagoons.

Downstream on the Catawba/Wateree River in South Carolina, a similar lawsuit by the Catawba Riverkeeper Foundation and SELC against SCE&G for coal ash pollution in the Catawba/Wateree watershed was settled last year when the utility agreed to move all 2.4 million tons of coal ash from its unlined Wateree Station lagoons to be stored dry in a lined landfill.