GREENSBORO — A new lawsuit against Duke Energy is not a contested case likely to end in dramatic closing arguments, but rather a sign of progress in recovering from the company’s coal ash calamity on the Dan River more than five years ago.
The federal government, North Carolina and Virginia jointly filed a civil complaint against the utility Thursday in the Greensboro-based U.S. District Court for the Middle District of North Carolina.
But the filing was a pro-forma document that simply sets the stage for finishing a series of Dan River restoration projects and giving the public a chance to comment, said Duke Energy spokesman Bill Norton.
“This was a procedural move. We knew five years ago that the restoration process would ultimately culminate in this step,” Norton said Friday of the civil complaint. He called Thursday’s filing “just a required legal step to get to the finish line.”
The complaint was accompanied by a consent agreement between Duke and all three governments, which aims to settle the case without legal fireworks after a pair of public meetings and additional court review.
The public meeting dates have not been formally announced, but are likely to be in the near future in Eden and Danville, Va. — the two communities most directly affected by the Feb. 2, 2014 spill.
Trustees from the two states and the U.S. Department of the Interior have spent the years since the disastrous spill studying the damage that resulted, gathering suggestions for how to make amends and then starting the restoration process as outlined in a draft settlement.
Environmental lawyer Frank Holleman characterized the federal filing as a reminder “of the harm that Duke Energy inflicted upon North Carolina and Virginia when it illegally dumped thousands of tons of coal ash into the Dan River.”
“This suit shows again that Duke Energy must remove all its coal ash from its unlined riverfront pits in North Carolina so that we will never again have an ongoing tragedy like the Dan River catastrophe,” said Holleman, a senior attorney at the Southern Environmental Law Center in Chapel Hill.
Duke Energy pleaded guilty in May 2015 to criminal misdemeanor charges linked to the spill. The Charlotte-based utility ultimately paid $102 million in fines and restitution for nine counts of corporate negligence involving its handling of coal ash.
The recovery effort that led to Thursday’s filing in the Middle District was not related to the criminal plea, except for the 2014 spill being their shared trigger point.
The recovery plan, still in draft form, took shape as a civil matter under the federal government’s Natural Resource Damage Assessment and Restoration initiative. The program aims to speed the healing process after spills or other releases of harmful substances.
The process so far has been a “cooperative” venture between Duke Energy and trustees from the state and federal governments, according to the draft restoration plan and environmental assessment included in Thursday’s court filing.
The most recent hallmark in that effort occurred July 11 when the Piedmont Land Conservancy and Duke Energy unveiled a 64-acre addition to North Carolina’s fledgling Mayo River State Park.
Adding to the park was among several projects that rose to the top when federal and state trustees initially asked the public for recovery suggestions shortly after the spill.
Duke Energy recently contributed $363,000 to help the Greensboro-based conservancy buy the riverfront acreage, which will be conveyed to state government as part of the park.
The spill occurred on Super Bowl Sunday 2014 after a stormwater pipe broke under the main coal ash pond at the retired Dan River Steam Station, spewing out an estimated 27 million gallons of tainted water and up to 39,000 tons of coal ash.
Coal ash is the waste byproduct of coal-fired power, a grainy material that contains trace elements of such potentially harmful metals as arsenic, boron, cadmium, chromium and mercury.
Other pieces of the draft restoration plan highlighted in Thursday’s court filing include:
- Removal of a hydroelectric dam on the Pigg River in Virginia to restore fish passage and lost habitat.
- Continuing negotiations with property owners aimed at buying land for a trio of boat launches along the Dan River.
- Already completed improvements to Danville’s Abreu Grogan Park that had been closed for four months after the spill while it was used as a staging area for efforts to remove nearby deposits of coal ash.
Norton said Duke Energy wasted no time in beginning the recovery effort that led to Thursday’s court filing.
“We proactively started implementing environmental and recreational priorities years ago, after everyone’s input but before the plan was deemed official,” he said.