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Cape Fear River Watch v. North Carolina Environmental Management Commission

Supreme Court of North Carolina

June 11, 2015

CAPE FEAR RIVER WATCH, SIERRA CLUB, WATERKEEPER ALLIANCE, and MOUNTAINTRUE (f/k/a WESTERN NORTH CAROLINA ALLIANCE), Petitioners
v.
NORTH CAROLINA ENVIRONMENTAL MANAGEMENT COMMISSION, Respondent, and DUKE ENERGY CAROLINAS, LLC and DUKE ENERGY PROGRESS, INC., Respondent-Intervenors

Heard March 16, 2015

Southern Environmental Law Center, by Austin D. Gerken Jr., Amelia Y. Burnette, J. Patrick Hunter, and Frank Holleman, for petitioner-appellees.

Roy Cooper, Attorney General, by Mary L. Lucasse and Jennie Wilhelm Hauser, Special Deputy Attorneys General, for respondent-appellant.

Womble Carlyle Sandridge & Rice, LLP, by James P. Cooney III; and Hunton & Williams LLP, by Charles D. Case, Matthew F. Hanchey, Frank E. Emory, Jr., and Brent A. Rosser, for respondent-intervenor-appellants.

OPINION

Page 446

Appeal pursuant to N.C.G.S. § § 7A-27(b)(1) and 150B-52 from an order on petition for judicial review entered on 6 March 2014 by Judge Paul C. Ridgeway in Superior Court, Wake County. On 10 October 2014, pursuant to N.C.G.S. § 7A-31(a) and (b)(2) and Rule 15(e)(2) of the North Carolina Rules of Appellate Procedure, the Supreme Court on its own initiative certified the case for review prior to determination in the Court of Appeals. Heard in the Supreme Court on 16 March 2015.

ERVIN, Justice.

The substantive issue before us in this case is whether the trial court erred by reversing a portion of a declaratory ruling issued by the North Carolina Environmental Management Commission (Commission) on 18 December 2012 relating to the application of the Commission's groundwater protection rules codified at Title 15A, Subchapter 2L, " Groundwater Classification and Standards," of the North Carolina Administrative Code, to coal ash lagoons. See 15A NCAC 2L .0101-.0417 (June 2014) [hereinafter Groundwater Rules]. In view of our conclusion that the General Assembly's enactment of Chapter 122 of the 2014 North Carolina Session Laws[1] supersedes the rule at issue in this appeal with respect to coal ash lagoons located at facilities with active permits, see Act of Aug. 20, 2014, ch. 122, 2014 5 N.C. Adv. Legis. Serv. 77 (LexisNexis) [hereinafter Chapter 122], we vacate the trial court's order and remand this case to the trial court with instructions to dismiss petitioners' appeal from the Commission's declaratory ruling on mootness grounds.

The present case stems from a dispute over the manner in which certain regulatory requirements should be applied to coal ash lagoons that received operating permits before 30 December 1983.[2] At the time at which the present proceeding was commenced, unlined coal ash lagoons existed at fourteen coal-fired electric generating facilities located in North Carolina. These coal ash lagoons contained the residue from the combustion of coal used to generate electricity. These residual materials consisted of a mixture of water, coal combustion by-products, and other waste.[3] All fourteen of the power generation facilities at issue in this case operate subject to National Pollutant Discharge Elimination System (" NPDES" ) permits that were originally issued by the North Carolina Department of Environment and Natural Resources (" DENR" ) and are subject to Groundwater Rules that have been adopted by the Commission. According to groundwater samples taken from monitoring wells located on the properties on which the coal ash lagoons are located, levels of contamination that exceed the relevant groundwater standards have been reported near some lagoons associated with the coal-fired generating facilities at issue in this proceeding.

Section .0106 of Title 15A, Subchapter 2L of the North Carolina Administrative Code

Page 447

describes the corrective actions required when " groundwater quality has been degraded." 15A NCAC 2L .0106 [hereinafter Rule .0106]. According to Rule .0106(c), which applies to sites that are either unpermitted or " deemed not permitted" pursuant to Rule .0106(e)(4) at which groundwater contamination exceeds authorized levels:

Any person conducting or controlling an activity which has not been permitted by the Division and which results in an increase in the concentration of a substance in excess of the ...

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