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Yadkin Riverkeeper, Inc. v. Duke Energy Carolinas, LLC

ELR Citation: 45 ELR 20199
Nos. 1:14-cv-753, (M.D.N.C., 10/20/2015) (Biggs, J.)

A district court denied motions to dismiss environmental groups' CWA citizen suit against an energy company for alleged NPDES permit violations at a retired coal-fired power plant. The groups alleged that the company unlawfully discharged pollutants through engineered seeps, non-engineered seeps, and an unpermitted pipe as well as through hydrologically connected groundwater to surface waters of the United States. The groups also alleged that the company violated the terms of its permit by allowing and causing "removed" substances—coal ash waste—to enter waters of the state and the United States. Because the state environmental agency had already filed a civil enforcement action against the company, the company argued that these claims should be dismissed due to the agency's diligent prosecution in state court. But the state agency appears to have done little, if anything, to move the case forward with respect to the unpermitted discharge claims. And the state's groundwater claim is not aimed at requiring the company to comply with the permit's "removed substances" provision. The company also argued that the court lacks jurisdiction to hear the hydrologically connected groundwater claim because neither the coal ash lagoons nor the groundwater beneath the lagoons fall within the definition of a "point source." Again, the court disagreed, concluding that it has jurisdiction under the CWA to adjudicate claims where, as alleged here, pollutants travel from a point source to navigable waters through hydrologically connected groundwater serving as a conduit between the point source and the navigable waters. Likewise, the groups have standing to move forward on their claim that the company violated dam safety provisions of the permit. Because the safety provisions are a condition of the NPDES permit, they are enforceable through a citizen suit. The court also denied the company's motion for a stay.