In a decision released late yesterday, U.S. District Judge Loretta C. Biggs denied Duke Energy’s request for a dismissal of the case filed by the Yadkin Riverkeeper and the Waterkeeper Alliance, seeking coal ash cleanup at the company’s Buck plant on the Yadkin River.
“The Court is unable to find that DENR was trying diligently or that its state enforcement action was calculated, in good faith, to require compliance with the [Clean Water] Act,” Biggs wrote in her decision.
“Accordingly, DENR’s state enforcement action does not bar the Riverkeepers from pursuing their Seep Claim and Hydrological Connection Claim in this citizen suit.”
Biggs added that agreements between DENR (now DEQ) and Duke Energy to stop investigation and enforcement in the pending state action evidenced a lack of due diligence on the part of the agency.
“DENR’s prosecution does not inspire confidence that its state court action will move expeditiously to a final resolution,” she wrote.
The judge also refused to stay the case, finding that further delay “has the potential to substantially harm the environment and the individuals who live near the Buck plant and draw their daily supply of water from allegedly contaminated wells.”
Instead, the groups will be able to proceed with all claims, including those related to unlawful coal ash seepage, prohibited leaks into the groundwater and river, and dam safety violations.
“This court ruling upholds citizens’ right to enforce the law against polluters like Duke Energy to protect clean water when DENR/DEQ fails to do so,” Frank Holleman, senior attorney at the Southern Environmental Law Center representing the Riverkeepers, said in a statement. “The court found that DENR/DEQ had not been diligently pursuing enforcement against Duke Energy’s still leaking coal ash. Instead, DENR/DEQ has been diligently protecting Duke Energy.”