A Superior Court judge on Thursday ruled in favor of conservation groups requesting that Duke Energy stop contaminating groundwater at its 14 coal-fired power plants statewide, including the Belews Creek Steam Station in Stokes County.
The judge ruled that Duke Energy must “take immediate action to eliminate sources" of contamination, such as ash ponds that allow sludge-like coal waste to leach into the ground. The utility company must do so regardless of the continuing negotiations it has pending with the N.C. Department of Environment and Natural Resources over past groundwater contamination or future clean-up efforts.
Removing coal waste from the ponds is the best way to eliminate the source of contamination, conservationists say.
"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 D.J. Gerken, senior attorney at the Southern Environmental Law Center, who represented several conservation groups in the case.
At Belews Creek, Duke Energy is drying coal waste and storing it in landfills equipped with a protective lining. The layer is designed to keep coal waste toxins from seeping through the ground and into groundwater, a storage method widely supported by conservation groups.
But the power plant also has a massive, unlined ash pond filled with the waste of spent coal.
These ponds typically host potential contaminants such as arsenic, cadmium, lead, mercury, chromium and selenium. Health risks posed by these elements include cancer and neurological damage. Conservation groups have warned for years that these unlined pits contaminate groundwater – a risk, they say, that should raise red flags in Stokes, where many households use well water.
Some monitoring wells at the Belews power plant show that groundwater has levels of chromium, iron and manganese above the state’s maximum allowable limit, according to DENR.
The ruling further protects that groundwater, not only at Belews Creek but also at the company’s 13 other power plants, regardless of whether the coal-waste ponds are being actively used, conservation groups say.
The lawsuit was filed by Cape Fear River Watch, Sierra Club, Waterkeeper Alliance and Western North Carolina Alliance seeking clarification on state clean-water laws – after the N.C. Environment Management Commission said that utilities such as Duke Energy did not have to immediately remove sources of contamination.
Duke Energy has the option of filing an appeal.
"We're considering this ruling as we take another look at our management of coal ash basins," the utility company said in a news release.
Company officials have tried to leave open the option of leaving the coal waste in the ponds and capping them. While that method may keep out storm water, it does little to stop coal waste from leaching from the unlined ponds and into groundwater, conservationists say.
DENR officials said they were “carefully reviewing” the decision, highlighting that the ruling stems from decisions made under former Gov. Bev Perdue’s administration.
“Today’s action addresses a decision made in 2012 by the Environmental Management Commission based on interpretations made under the Perdue administration,” DENR said in a news release.
Under Gov. Pat McCrory’s administration, DENR was partnering with Duke Energy in requesting that the court uphold the EMC's ruling.
The judge found that interpretation "plainly erroneous."
Last year, prodded by conservationists, DENR filed four lawsuits against Duke Energy citing violations of state and federal clean-water laws. The ruling handed down Thursday was based on a separate lawsuit, in which the conservation groups requested clarification on state clean-water laws. But it may have an impact on the other four lawsuits, as they have led to no immediate action to eliminate sources of contamination.
DENR officials have been hesitant to use the full force of the agency’s regulatory muscle to force Duke Energy to immediately stop contaminating groundwater. Rather, DENR Secretary John Skvarla has said that efforts to eliminate sources of contamination must be negotiated. Otherwise, Skvarla said, Duke Energy may tie up harsh mandates in court.
“What happens in court? Five years? Six years? How long do things get tied up in court? Instead, we chose a process that said, ‘Let’s agree to a monitoring process … let’s hold your feet to the fire during that process. … And let’s get to the end game of cleaning up these coal ash ponds as quickly as possible,’” Skvarla said in a news conference two weeks ago.
Other environmental catastrophes such as the contamination of the Dan River last month could be averted if DENR acts more aggressively, conservationists say.
"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."