Court clears Duke Energy plan to clean more coal-ash pits

A judge on Monday rejected a bid by North Carolina's environment agency to block Duke Energy, the country’s largest energy company, from removing toxic coal ash from more plants than required under a new state law.

Duke Energy has asked to add three power plants to the list of four plants where they will begin scooping the ash, which is leaking arsenic, lead and other pollutants into waterways. In May, the company plead guilty to environmental crimes over a North Carolina power plant's coal ash spill into a river and management of coal ash basins in the state.

Superior Court Judge Paul Ridgeway announced the order after the state Department of Environment and Natural Resources sought to stop Duke Energy from going beyond a new state law requiring it to excavate pits at four plants.

The state agency argued Duke Energy doesn't have infinite money and time to clean out the problem sites. The company shouldn't decide which get top priority without public input, agency attorney Anita LeVeaux said. The agency also is trying to limit costs that Duke Energy later could seek to pass along to electricity customers, agency spokeswoman Crystal Feldman said.

The state stepped up its regulations last year after coal ash collected at the utility's Eden power plant spilled into the Dan River, coating 70 miles of the waterway in toxic, gray sludge that turned it into “toxic soup,” according to environmentalist. The state law requires Duke Energy to stop pollution leaking from all 14 of its North Carolina coal ash dumps by 2029.

The law orders excavation at four power plants the state has deemed high priority: Asheville; Riverbend in Mount Holly; Sutton in Wilmington; and Dan River in Eden. The rest could be capped with plastic and the ash left in place.

Duke Energy now wants to scoop coal ash out from seven plants. Environmental groups asked the judge to approve the plan. The three additional power plants — Cape Fear in Moncure, H.F Lee in Goldsboro and Weatherspoon near Lumberton — have ash pits that are either in flood plains, close to riverbanks or are held back by dangerously unstable dams, said Southern Environmental Law Center attorney Frank Holleman.

"This is where the engineering inexorably led the company," Duke Energy attorney James Cooney said. "This is the only environmentally sound, cost-efficient way to close these places because of the site characteristics."

Lawsuits seeking to enforce clean-water laws were filed months before the February 2014 Dan River spill.

"We have seen in this case the serious consequences of delay" by the state environment agency, Holleman said.

Environmental lawyers allege that Duke Energy's coal ash pits are contaminating rivers and groundwater used as sources of drinking water by hundreds of thousands of people. Coal ash, the residue left after coal is burned to generate electricity, contains toxic chemicals including arsenic, lead, chromium and thallium.

Environmental groups also contend the state environment agency has a long history of lax enforcement of clean water regulations that should have required Duke to clean up its mess years ago. Before the Dan River spill occurred, the agency proposed settling the lawsuit if the company paid a $99,100 fine, but wouldn't have required that Duke remove any coal ash. The offer was retracted after the spill.

Al Jazeera and The Associated Press