Press Release | March 6, 2014

NC coal ash, court rules

Chapel Hill, NC – A Wake County Judge today ruled that Duke Energy must take immediate action to eliminate the sources of groundwater contamination that are currently violating water quality standards at all 14 of its coal-fired power plants in North Carolina.

The ruling comes in the wake of recent claims by the Department of Environment and Natural Resources (DENR) that it lacks the legal authority to require cleanup of the ash ponds which hold millions of gallons of toxic coal ash. DENR’s comments were made in response to the February 2014 coal ash spill that dumped up to 35,000 tons of coal ash into the Dan River.

“The ruling leaves no doubt, Duke Energy is past due on its obligation to eliminate the sources of groundwater contamination, its unlined coal ash pits, and the State has both the authority and a duty to require action now,” said DJ Gerken, senior attorney at the Southern Environmental Law Center who represented the conservation groups in the case. “This ruling enforces a common-sense requirement in existing law – before you can clean up contaminated groundwater, you first must stop the source of the contamination- in this case, Duke’s unlined coal ash pits.”

Data collected by DENR over several years indicates that many of Duke’s coal-fired power plants are causing groundwater contamination by storing hazardous coal ash in unlined pits often adjacent to major bodies of water, including drinking water reservoirs. The state has asserted however that it can take no action without first determining how far contamination has spread and that it lacks the legal power to require Duke to remove ash from the ponds. Today’s ruling clarifies the State’s authority under the North Carolina groundwater protection law to require Duke to stop the ponds from further contaminating groundwater, before it tackles the long term challenge of cleaning up the groundwater it has already polluted.

“Duke’s toxic legacy in North Carolina needs to end, and the North Carolina Department of Environment and Natural Resources won’t do its part to protect our water,” said Kelly Martin, senior campaign representative with Sierra Club’s Beyond Coal campaign. “Clean water is our right, and if Duke Energy won’t do the right thing even after the Dan River coal ash spill, we’ll keep fighting to hold them accountable.”

Although almost all of the unlined coal ash ponds in the state have been in operation for decades, some for as many as fifty years, the ponds went largely unregulated until December 22, 2008 when a dam burst at the TVA Kingston Fossil Plant causing the largest coal ash spill in the history of the United States. The February 2014 spill on the Dan River was reportedly the nation’s third largest coal ash spill, coating the Dan River with some 70 miles of toxic ash.

“Arsenic has been detected at levels exceeding legal standards in the groundwater at the Dan River plant at every sampling event since January 2011,” said Pete Harrison with the Waterkeeper Alliance.  “If the state had exercised its authority to require cleanup of those ponds previously, the catastrophic February 2014 coal ash spill could have been prevented. The time to use this authority to require cleanup at other plants around the state is now, before another disaster occurs.”

Lawsuits filed by DENR earlier this year against each coal-fired power plant in the state allege that Duke Energy is violating state groundwater standards with contamination at several of its plants. Those violations include thallium at the Asheville plant near the French Broad River and arsenic and selenium at the L.V. Sutton plant on the Cape Fear river. Groundwater contamination at both facilities has been shown to be spreading towards local communities and water resources. Duke has already been forced to buy out neighboring property because of contaminated groundwater and to supply alternate drinking sources to nearby homeowners at several of its plants – but has not yet stopped the source of the contamination.

“To effectively address contamination, you have to address the cause of that contamination,” said French Broad Riverkeeper Hartwell Carson. “Bailing water out of a boat with a hole in it doesn’t do you any good; you’ve got to fix the hole first. Today’s ruling means Duke will have to address the source of the thallium contamination in Asheville that is spreading toward our neighborhoods and river.”

Conservation groups are hopeful that the ruling will move the state to use its authority to require that the ash be removed from the ponds and stored in dry, lined landfills. The ruling comes as Duke ceases coal-burning operations at several plants and prepares closure plans for the aging coal ash ponds. The L.V. Sutton plant in Wilmington is among those plants which has converted to natural gas in lieu of coal.

“It would be a disaster to allow Duke to leave the coal ash ponds at the Sutton plant in place as it converts to natural gas,” said Cape Fear Riverkeeper Kemp Burdette. “The ponds have already caused decades of contamination, leaching selenium and other dangerous contaminants into our groundwater and river to the point the community can no longer utilize the groundwater resources in a 17-square mile area because it is too contaminated. If Duke closes the Sutton plant and leaves the ash in place it is the citizens that will bear the cost – it’s time for the state to require Duke to remove the ash.”

About Sierra Club
The Sierra Club is America’s largest and most influential grassroots environmental organization, with more than 1.4 million members and supporters nationwide. The Sierra Club works to to safeguard the health of our communities, protect wildlife, and preserve our remaining wild places through grassroots activism, public education, lobbying and litigation.
Visit us on the web at and follow us on Twitter at @sierra_club.

About Waterkeeper Alliance
Waterkeeper Alliance unites more than 200 Waterkeeper organizations that are on the front lines of the global water crisis patrolling and protecting more than 1.5 million square miles of rivers, lakes and coastlines in the Americas, Europe, Australia, Asia and Africa. Waterkeepers emphasize citizen advocacy to defend the fundamental human right to swimmable, drinkable, and fishable waters, and combine firsthand knowledge of their waterways with an unwavering commitment to the rights of their communities and to the rule of law.

About WNCA
For more than 30 years, the Western North Carolina Alliance has been a trusted community partner, marshaling grassroots support to keep our forests healthy, our air and water clean, and our communities vibrant. WNCA empowers citizens to be advocates for livable communities and the natural environment of Western North Carolina.

About the Cape Fear Riverkeeper
Cape Fear River Watch was founded in 1993 and began as a nonprofit organization, open to everyone, dedicated to the improvement and preservation of the health, beauty, cleanliness, and heritage of the Cape Fear River Basin. CFRW’s mission is to “protect and improve the water quality of the Lower Cape Fear River Basin through education, advocacy and action.” CFRW supports the work of the Cape Fear RIVERKEEPER, a member of the WATERKEEPER ALLIANCE.

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