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NC judge closes lawsuit involving three Duke Energy coal ash sites

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NC judge closes lawsuit involving three Duke Energy coal ash sites

ANorth Carolina judge has closed a lawsuit filed against a subsidiary relatedto coal ash management at three power plants because of the company'scommitment to clean up the sites.

WakeCounty Superior Court Judge Paul Ridgeway on April 4 approved a Duke Energy reachedlast year with environmental groups tied to closing the basins at itsH.F. Lee,Cape Fear andW.H. Weatherspoonplants in the eastern part of North Carolina. The order grants 's motion forpartial summary judgment in the case.

InJuly 2015, Duke Energy filed motions for summary judgments and proposed ordersasking the court to dismiss civil enforcement actions brought by stateregulators and environmental groups related to coal ash cleanup. Duke Energyargued that state law enactedin September 2014, known as the Coal Ash Management Act, already requires thecompany to close coal ash basins at the plants involved in the litigation withina specified time frame.

DukeEnergy gained the supportof the Southern Environmental Law Center as part of its plan to "clean up"seven sites through excavating the coal ash and placing it in dry, lined storageaway from waterways.

TheNorth Carolina Department of Environmental Quality, formerly the Department ofEnvironment and Natural Resources, filedtwo lawsuits in August 2013 against Duke Energy subsidiariesDuke Energy Carolinas LLCand Duke Energy Progress related to the discharge of wastewater from coal ashbasins in the state. The SELC was granted permission to the lawsuits that allege permitviolations at ash ponds at all 14 of Duke Energy's coal plants in the state.

Whilethe SELC then agreed to join Duke Energy's push to close and dismiss the suitstied to coal ash storage and unpermitted discharge of wastewater at seven powerplants, the state contestedthe move.

"Itis not as simple as [Duke Energy] deciding which impoundments it will closefirst," the state's environmental regulator said in its response to DukeEnergy's motions. "CAMA shifted that decision from the owners of theimpoundments to the regulatory agencies. Entering an order that directs that[Duke Energy] proceed with the closure of impoundments outside of this processwould undermine the express requirements and purpose of CAMA."

Environmentalgroups, however, sought "firm deadlines" for completion of coal ashremoval at the Cape Fear, H.F. Lee and Weatherspoon sites — 10 years for CapeFear and 12 years for the other two sites. The court largely approved thisrecommendation, which includes dewatering and excavating the basins, andplacing the coal combustion residuals in lined landfills. Duke Energy may alsouse the ash as structural fill or other approved beneficial reuse, such as minereclamation.

DukeEnergy, in June 2015, recommendedfull excavation of the coal ash basins at the Cape Fear, H.F. Leeand W.H. Weatherspoon sites. These sites were classified as "" impoundmentsby the state at the end of last year.

Thecompany must provide the court with routine reports on its ash excavation.

"NorthCarolina's Department of Environmental Quality actually the order requiring cleanup ofthese three polluted sites, even though both Duke Energy and conservationgroups agree that the cleanups are required to protect North Carolina's riversand communities," SELC senior attorney Frank Holleman said April 4 in anews release. "We can only hope that North Carolina's environmentalprotection agency will begin to actually protect North Carolina's environment,and require a total cleanup of the remaining polluted coal ash sites across thestate."

TheSELC said it expects the court to issue a separate order dealing with fouradditional sites involved in the settlement with Duke Energy. These sites —Asheville,Riverbend,L.V. Sutton andDan River — havealready been deemed "high-risk" impoundments that must be to complywith state law.