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Environmental groups and federal regulators had been concerned for years about problems at Duke’s 31 coal-ash waste ponds in North Carolina. Those concerns intensified after a 2008 disaster in Kingston, Tenn., where 5 million cubic yards of ash burst out of a basin, covering 300 acres and devastating a nearby river. The cleanup has cost $1.2 billion.

After Kingston, the Southern Environmental Law Center began examining the issue with conservationist groups and targeted a coal ash lagoon along the Wateree River in South Carolina.

On behalf of the Catawba Riverkeeper Foundation, the legal group filed a lawsuit against South Carolina Electric & Gas for violating state environmental laws. They reached an agreement that requires the utility to empty its lagoons and move the ash to a lined landfill licensed to handle hazardous waste.

Next, the environmental groups turned their attention to Duke’s coal ash ponds in North Carolina. The groups had long shared water samples from lakes and rivers near the waste ponds with state regulators that showed contamination, but no fines were issued.

So in January 2013, the SELC filed a notice of intent to sue Duke in federal court over coal ash pollution at the company’s Asheville Steam Generating Plant.

The Clean Water Act allows citizen groups to file lawsuits over environmental violations, but it requires them to give 60-days’ notice to state regulators to take enforcement action before the case can proceed. On the 58th day after the notice, DENR filed notice it would assert its jurisdiction.

On March 26, the SELC sent another notice for contamination from coal-ash lagoons at the Riverbend Steam Station in Gaston County. On the 60th day, state regulators again intervened.

On June 19, the legal group once again sent a 60-days’ notice to sue Duke over coal ash pollution leaking from Duke’s Sutton Power Plant near Wilmington.

“The Sutton site is scary bad,” said Frank Holleman, a senior attorney at the Southern Environmental Law Center. “They’ve got significant groundwater contamination on one side headed toward the drinking water wells of a poor community. On the other side, you have a popular public fishing lake where they had significant fish die offs, and fish contamination.”

Once again, state regulators filed an enforcement action against Duke on the very last day. This time, however, the state also filed enforcement actions for all of Duke’s remaining coal ash sites in North Carolina, which effectively blocks environmentalists from pursuing action against them under the Clean Water Act.

Meanwhile, the state announced a deal with Duke to settle the litigation involving the Asheville and Riverbend sites.

The state proposed that Duke pay $99,111 to settle the environmental violations at Asheville and Riverbend. Environmentalists criticize the proposed fines as couch-cushion change for a company valued at nearly $50 billion.

“This is a common technique of regulators who are friendly with the law-breaking regulated entities,” Holleman said. “They will come in and file at the very last minute and then quickly propose a favorable settlement to the lawbreaker to prevent the citizens group from leading the litigation.”

Lacy Presnell, DENR’s general counsel, confirmed that the proposed settlement doesn’t require Duke to move its coal ash.

“The proposed consent order sets forth a number of steps which would be necessary to lead to a decision for appropriate remedial action,” the state lawyer said. Prior to joining DENR last year, Presnell took leave from his partnership in a small Raleigh law firm that represents utility companies.

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