Judge wants to review scope of Duke Energy pollution deal

AP News
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Posted: Feb 12, 2016 6:26 PM

RALEIGH, N.C. (AP) — A North Carolina judge said Friday he wants to review a surprise deal settling decades of groundwater pollution at Duke Energy's coal ash pits because he questioned the motives behind the company's deal with state environmental regulators.

The deal reduced the $25 million fine at a Wilmington power plant that state regulators had promoted as the largest penalty for environmental damage in state history. The agreement cut the fine to $7 million but also sought to resolve groundwater pollution claims at all 14 of the company's power plants storing toxic coal ash, not just one.

The judge who signed off on the settlement last fall went too far with his order that seemed to close lawsuits involving conservation groups, Superior Court Judge Paul Ridgeway said.

"It is a bit surprising that in a penalty case over one plant, it developed into as comprehensive a settlement as this," Ridgeway said.

The Department of Environmental Quality could decide the appropriate fine for Duke Energy polluting the groundwater at its Sutton power plant, Ridgeway said. But because Administrative Law Judge Phil Berger Jr. wasn't asked to rewrite the scope of his order approving the deal, Ridgeway said he suspected the settlement's language was designed to close the courtroom door to environmental groups or others.

"I have to suspect that there is some ulterior motive," he said.

The parties later agreed to ask Berger to revise his order, Duke Energy spokeswoman Erin Culbert said.

Berger is the son of state Senate leader Phil Berger. The Republican's district includes Eden, site of a 2014 spill of toxic coal ash that prompted a new law requiring Duke Energy to clean up its coal ash holding pits by 2029.

State water quality officials knew for years about the contamination at Sutton's unlined ash pits but took no enforcement action until August 2013 — after a citizens groups tried to sue Duke Energy. Monitoring wells near Duke's dumps at Sutton showed readings exceeding state groundwater standards for chemicals including boron and thallium, which was used in rat poison until it was banned because it is highly toxic.

The hearing came on the day DEQ signed off for the first time on plans to drain the water off the top of basins where coal ash is collected, a needed step to closing, excavating or covering them.

The state permit for work at Duke Energy's Riverbend power plant in Mount Holly is intended to be a model for documents needed to close coal ash pits around the state. It allows water to be diverted to rivers and streams until 3 feet of water remains above the ash. Duke Energy will be required to test fish near the discharge site to see whether their bodies contain collected mercury or lead, and twice a year test the waterway for those heavy metals and arsenic, chromium and cadmium.

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