Duke Energy Seeks Dismissal of Environmentalist’s Lawsuit

(CN) – Duke Energy, the nation’s largest utility, claims in court that a lawsuit filed by environmentalists should be tossed because they misidentified an alleged source of toxic wastewater emanating from a North Carolina power plant.

In 2016, Duke Energy and North Carolina reached a $6 million settlement related to the 2014 coal ash spill at the utility’s Dan River plan in Eden, North Carolina.

In this case, however, the utility says the Roanoke River Basin Association misidentified the outflow of wastewater from Duke’s 6,000-acre Roxboro Steam Electric Station, and then misinterpreted the Clean Water Act when the nonprofit filed a lawsuit against it in March.

The environmentalists claim the Roxboro plant is unlawfully discharging toxins into “waters of the United States.”

But Duke Energy says in a Federal lawsuit filed in Danville, Virginia on May 11, the association is mistaken and the discharges they are complaining about are actually components of the plant’s wastewater treatment system and comply with all regulatory permits for the facility.

Duke says the all discharges from the Roxboro plant have occurred with the “full knowledge and approval of the State of North Carolina, for the treatment of wastewater prior to discharge to jurisdictional waters.”

Additionally, Duke Energy says the environmentalist’s lawsuit must fail on its face because the plaintiffs failed to identify any specific body of allegedly receiving the toxic outflow.

It also argues the Clean Water Act “does not regulate the migration of pollutants into groundwater, even if that groundwater has some ‘hydrological connection’ to a water of the United States.”

Duke Energy seeks declaratory relief in the form of a determination that it is lawfully conducting business at the Roxboro plant.

It is represented by Timothy Heaphy of Hunton & Williams LLP in Richmond, Virginia.

“Duke has filed suit in Virginia in an obvious attempt to avoid North Carolina federal courts that have ruled against Duke Energy repeatedly,” said Mike Pucci, president of the Roanoke River Basin Association.

In a emailed statement to Courthouse News, Pucci said that Duke Energy needs to take responsibility for cleaning up its coal ash and that it should “move the problem to a lined facility to protect surface and ground water, not hide behind baseless legal maneuvers.”

“It’s Ironic that they would file in Danville, which had so many problems with their drinking water supply after the Dan River spill, for which Duke was negligent.  And they left all that coal Ash in the Dan River, never cleaned it up. Not sure they have many friends in Danville,” he said.

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