A North Carolina judge says a coalition of environmental groups can participate in the state’s enforcement action against Duke Energy for groundwater pollution leaching from the company’s coal ash dumps.
The ruling was praised Tuesday by environmentalists who tried to use the Clean Water Act last year to force Duke to clean up all of its 33 ash pits across the state.
“This means that local conservations groups in communities across North Carolina will have a direct say and play a direct role in determining what will happen in the state enforcement action against Duke’s coal pollution and coal ash storage,” said Frank Holleman, senior attorney for the Southern Environmental Law Center, which represents the coalition. Without the groups’ participation, only Duke and state regulators would have been parties to the case – and that would have spelled trouble, he said.
“We have seen that if only Duke and DENR are there, the community and clean water are not protected,” Holleman said.
Superior Court Judge Paul Ridgeway’s ruling allowing the coalition to participate fully in the proceedings also means they will have access to Duke and state Department of Environment and Natural Resources documents.
Duke spokesman Thomas William said the company doesn’t plan to appeal Ridgeway’s ruling.
Drew Elliot, a spokesman for the state environmental agency, said the judge has the right to decide which entities should participate in the lawsuit, and that his agency has already shared critical documents with environmental groups.
“We continue to pursue cleanup of the state’s coal ash ponds through litigation, existing regulatory authority, our enforcement partnership with the EPA, and the governor’s proposed coal ash action plan,” he said.
Elliot was referring to Gov. Pat McCrory, who has made a proposal he said would strengthen government oversight of the state’s coal ash dumps.
McCrory, a Republican who worked at Duke for more than 28 years before retiring, said his plan would result in the “conversion or closure” of the dumps and close legal loopholes that allowed Duke to avoid cleaning up groundwater contamination spreading from unlined ash pits.
All of Duke’s ash pits are along the state’s rivers and lakes – and the governor’s plan doesn’t force the company to move them. Instead, his plan allows Duke to study the issue and set a timetable for how to eventually close the waste dumps.
Environmentalists have sharply criticized McCrory’s plan, saying it doesn’t go far enough.
This is the latest development in the state’s enforcement case that began after the environmental groups moved last year to sue Duke under the federal Clean Water Act over its groundwater pollution.
After state officials met with the company’s chief lobbyist, the state environmental agency used its authority to file environmental violations against all of Duke’s coal ash pits in North Carolina.
The agency, represented in court by the office of Democratic Attorney General Roy Cooper, then quickly proposed a settlement that would have fined Duke $99,111 over pollution at two of its plants with no requirement that the $50 billion company take action to clean up its pollution.
Environmentalists criticized the deal, which they contend was intended to shield the company from harsher penalties it would have likely faced in federal court.
The state agency withdrew from its proposed agreement with Duke following increased public scrutiny in the wake of the Feb. 2 massive coal ash spill at Duke Eden plant that coated 70 miles of the Dan River.
In January and March, the environmental law group filed motions to intervene in the enforcement cases, but Duke opposed the groups’ intervention, Holleman said.
Now the coalition, which includes Appalachian Voices, Waterkeeper Alliance and Southern Alliance for Clean Energy, will have access to the same documents as the state and Duke.
But more importantly, they will have “equal footing to make arguments and present the evidence and present the view of the local community so that those voices will be heard every bit as much as Duke’s and DENR’s,” he said.
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