Coal Ash Gets Its Day In Court

Guest Blog | March 28, 2014 | Coal, Energy Policy
On March 22 community members gathered in Eden North Carolina to celebrate World Water Day and call for clean up of the Dan River.

As predicted in our last blog post on the Dan River coal ash disaster, the repercussions of this tragic event continue to make daily news. While environmental and community advocacy groups have been warning about the dangers of coal ash impoundments for years, it has taken another coal ash catastrophe to spur the State of North Carolina to take action on dangerous coal ash dumpsites.

Until recently, North Carolina’s Department of Environment and Natural Resources (DENR) has allowed Duke Energy’s coal ash dumps to contaminate ground and surface waters and even intervened to stop environmental groups’ legal actions to make Duke clean up its ash. Thankfully, there are other routes to hold Duke Energy responsible for their coal ash dumpsites  and several actions are brewing in the courts that will hopefully have far-reaching impacts to protect our communities and waterways from this toxic threat.

One week after 140,000 tons of coal ash and contaminated wastewater fouled the Dan River, NC DENR began to budge on their long-term approach to Duke’s coal ash by putting on hold the “sweetheart deal” settlement they’d previously proposed with Duke.

Soon after, federal authorities launched a criminal investigation into Duke Energy and DENR for their handling of  the Dan River spill.

The investigation quickly widened to include all North Carolina coal ash dumpsites, additional Duke and DENR staff and records from the NC Utilities Commission (NCUC), raising more questions about inappropriately close ties between the utility and those charged with protecting North Carolina’s public and environment. It’s hard not to wonder about the disturbingly cozy associations between regulators and industry as internal emails and records have become public and more scrutiny given to NCUC and DENR appointments. In another interesting twist, the lawyer hired to represent North Carolina in the federal investigation previously represented Duke Energy in a separate criminal probe. A federal grand jury convened on March 18, however no information on these closed proceedings has been made public to date.

Simultaneously, four environmental groups sought a court review of a 2012 state Environmental Management Commission ruling that Duke Energy didn’t have to take any action to address coal ash groundwater pollution. On March 6, a Superior Court judge overturned that ruling stating that Duke Energy must take immediate action to eliminate the sources of groundwater contamination. The ruling leaves little doubt that Duke energy is obliged to remove it’s unlined and leaking coal ash dumpsites and that NC DENR does, in fact, have the authority and duty to require such action. On March 20 the same judge ruled against Duke, refusing to delay the impact of his ruling until April 7.

Also on March 20th SACE and other groups, represented by SELC, filed a motion to intervene in the state court enforcement against Duke Energy for the Dan River disaster. This motion seeks to ensure that local citizens in the Dan River Basin have a voice in the cleanup of Duke Energy’s pollution and calls for the complete removal of ash from the Dan River’s banks.

An aerial photo taken by Riverkeeper Rick Cove on March 10, 2014 show personnel pumping coal ash wastewater from impoundments at Duke Energy's Cape Fear plant. Photo Source: Rick Dove, Waterkeeper Alliance

The Dan River disaster triggered close scrutiny of all of Duke’s dumpsites, revealing alarming examples of inadequate coal ash management and outright disregard for public health and safety. Here are the important developments:

  • Duke found eight more stormwater pipes buried beneath their ash impoundments at several NC facilities after initially claiming that the Dan River pipes were the only ones that existed. 
  • Contaminated wastewater is also now known to be leaking from the Cliffside Steam Station in Rutherford County near the Broad River. 
  • Waterkeeper Alliance spotted suspicious activity at Duke’s Cape Fear plant and NC DENR confirmed Duke had illegally pumped at least 61 million gallons of coal ash contaminated wastewater into a tributary that feeds the Cape Fear River. 
  • large crack was then found in the Cape Fear plant’s impoundments, threatening another coal ash disaster. 

It took NC DENR over a month to cite Duke for breaking clean water regulations for the Dan River disaster, but the agency has recently picked up the pace of writing citations for these obvious violations. As of March 2o Duke had received eight citations in several counties and is facing millions of dollars in fines. Additionally, DENR officially abandoned their proposed (sweetheart) settlement with Duke Energy on March 21, and requested assistance from EPA to help force the utility to clean up its ash pollution.

Coal ash impoundments at Duke Energy's Asheville plant loom over the French Broad River.

Duke Energy is now exploring permanent solutions for coal ash remediation and is rethinking the future of their fleet of coal-fired power plants. In her March 14 letter to Gov. McCrory and NC DENR, Duke Energy CEO Lynn Good suggested the utility may close down 940 megawatts of coal capacity at the Asheville and Cliffside plants. These proposals go beyond previously planned retirements and would be first time that Duke shuts down more modern coal units already upgraded with advanced pollution controls. The letter says Duke will consider two alternatives for all its retired coal ash impoundments: removing ash to modern, lined, dry landfills away from waterways or simply capping the old, leaking ash impoundments and leaving them in place. SACE and other groups working on the issue maintain that complete removal from outdated impoundments to new, lined, dry, well-monitored landfills away from waterways is the best way to prevent future coal ash contamination.

With such an active state of play both in and outside of the courtroom, the future of North Carolina’s coal ash remains uncertain, though the Dan River disaster and subsequent public outcry has moved things far ahead of where they were before the spill.

You can help keep pressure on Duke to clean up their ash by visiting our take action page,, and call on the utility, state and federal regulators and your representatives to take meaningful steps to ensure that the Dan River is the Southeast’s last coal ash disaster.


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