Lawsuit filed over HF Lee contamination
By Ethan Smith
Published in News on August 30, 2014 11:36 PM
The Southern Environmental Law Center is planning to sue Duke Energy on behalf of Matthew Starr and the Neuse Riverkeeper Foundation over alleged contamination of the Neuse River by the recently closed H.F. Lee Plant coal ash facility.
James Torrey, a staff attorney at the SELC's Chapel Hill office, confirmed Friday that the lawsuit would be filed within the next week.
"It is to our understanding that DENR (Department of Natural and Environmental Resources) won't block a citizen-grouped lawsuit this time like they have in the past," Torrey said. "So we plan to move forward with the suit and enforce the Clean Water Act."
Torrey said the SELC is required to give 60 days notice to the agencies involved that the lawsuit is being filed. The 60-day period runs out in the coming week, and if Duke does not respond, "We plan to move forward with enforcing the law," Torrey said.
The attorney said there are serious violations of safety and contamination codes at the H.F. Lee facility, and many problems that need to be addressed.
"The biggest and most dramatic threat is a collapse of the dam and a spill into the river," Torrey said. "But the everyday threat is that leaks at the site are likely discharging contamination into public waters every day."
The Clean Water Act establishes regulations for discharging contaminants into waters and allows citizen groups to file federal lawsuits.
"We're filing this lawsuit over arsenic levels and other contaminants detected at the site flowing into the river," Torrey said.
Evidence of contamination was provided by Upper Neuse Riverkeeper Matthew Starr, who took several samples from sites along the Neuse River near the H.F. Lee facility. The samples were sent to be tested for contaminants at Pace Analytical Services in Asheville, an independent, state-certified lab.
Starr said Pace Analytics was used because the results from the testing would be thrown out by the state in a lawsuit if they did not come from a state-certified lab.
Results from the testing showed arsenic detected at all but one of the sampling sites, and also the presence of mercury and lead in the samples. Other substances that were found include boron, barium, manganese, iron, chromium and selenium.
Three sampling locations were described by Starr as being on the same side of the river as the coal ash ponds, but one location was on the opposite side of the river, where the bank borders Quaker Neck Lake.
On the Quaker Neck Lake side, iron, manganese, boron, barium, chromium and lead were all detected in the sample.
"There's no arsenic on that side, but we can tell from the composition of the contaminants that it's coming from coal ash," Starr said.
North Carolina soils along the Neuse are naturally high in iron and manganese levels.
"The iron isn't important because there are all these other contaminants," Starr said.
In areas where arsenic was detected, levels ranged from 31 ug/L to 139 ug/L. The measurement of ug/L stands for micrograms per liter.
By the Environmental Protection Agency's measurements, the acceptable level of arsenic contamination is 0.010 parts per million. When the lowest level of arsenic detected in the above samples -- 31 ug/L -- is converted to parts per million, it comes to 0.031 parts per million, more than 0.02 parts per million over acceptable EPA standards.
"We are hoping that Duke (Energy) will agree with us that the site needs to be cleaned up," Torrey said.
Jeff Brooks, a media spokesperson with Duke Energy, responded to the impending lawsuit.
"We can't speculate on potential actions that other groups might take," Brooks said. "Duke Energy continues to be committed to closing its North Carolina ash basins in a way that's fact-based and environmentally sound."
The drinking water supply is threatened by the issues cited by the SELC, Torrey said.
"There is absolutely a threat to the drinking water supply," he said. "Many rural residents in North Carolina draw their drinking water from the ground."
Starr said the state has the right to command Duke Energy to clean up coal ash sites, but has not thus far because the state says lawsuits aren't necessary and that action has been taken to correct the problems.
"This isn't only an environmental issue," Starr said. "This is a failing of North Carolina citizens issue. It is a complete mishandling and failure to not do anything to protect citizens of North Carolina and Wayne County."