Duke Energy to DEQ: Coal ash cleanup doesn’t have to be “most protective,” just protective enough

On the morning of Monday, April 1, hundreds, if not thousands of people were surprised — even astonished — but perhaps no one more than Duke Energy itself.

That day the NC Department of Environmental Quality announced that based on science, it would require Duke Energy to fully excavate the coal ash from nine unlined pits at six plants: Allen, Belews Creek, Cliffside/Rogers, Marshall, Mayo and Roxboro. And Duke Energy, according to court documents filed last Friday, had no advance notice. They were caught off-guard.

These six plants are the last of the 14 in North Carolina to be cleaned up. With DEQ’s proclamation, every coal ash pit  in North Carolina would now be dug up, its contents placed in a dry, lined, capped landfill. It is remedy the public has long clamored for, but the utility has staunchly opposed.

Duke Energy has now deployed its army of attorneys to fight the order. In documents filed with the Administrative Office of the Courts, the utility alleges that in issuing the order, DEQ was “arbitrary and capricious,” and violated not only the Coal Ash Management Act (CAMA) but the US Constitution’s due process clause. The requirement to fully excavate the pits, Duke says, is “unsupported by scientific evidence.”

No date has yet been set for the hearing.

DEQ Secretary Michael Regan issued a response to the filings: “DEQ continues to stand by its scientific determination that the best way to protect public health, communities and the environment is to excavate coal ash impoundments across the state. We expect DEQ’s decision will be upheld.”

Evidence of the utility’s hubris, CAMA’s weakness — or both —  is buried on Page 21 of the documents. (The filings are largely the same for all six sites.) Duke claims that state law doesn’t require it to clean up the sites to be “the most protective” of human health and the environment — just to be protective enough.

CAMA’s standard “is not an exercise in divining the most protective plan imaginable,” the court documents read.

Under CAMA, the unlined pits at the remaining six plants are classified as “low risk” because the utility has provided permanent water supplies for households within a half-mile of the plant’s compliance boundary. It also has complied with dam safety orders, including correcting any deficiencies.

Duke must close its low-risk impoundments by Dec. 31, 2024. The utility has proposed either leaving the ash in the unlined pit with a protective cap, or a hybrid of capping some ash in place and disposing the rest in an onsite lined landfill. While CAMA allows DEQ to call for a full excavation, the law doesn’t require it.

But low-risk doesn’t mean no-risk. The threat to groundwater, even with the 30 years’ of required monitoring, is a given. Duke acknowledges in the court documents that under all closure options, even full excavation, groundwater will be contaminated well beyond the respective plants’ property lines. “The area of the plume” to be cleaned up “is immense,” the documents read.

Addressing the groundwater contamination is an integral part of Duke’s closure plans. Since those closure plans are not yet due, Duke has not filed a plan to deal with the groundwater. Without the benefit of that information, Duke claims, DEQ “has prematurely selected a closure method.”

Duke has consistently cited the additional expense of full excavation — $4 billion to $5 billion — “without measurable environmental benefits” as a reason to choose a different method. “DEQ is required to consider whether the plan is protective of public welfare … and the definition of public welfare plainly includes cost.”

Coincidentally, just last week, Duke Energy enlisted lawmakers to sponsor its bill laying out a new complicated rate mechanism that only a utility lawyer could love. The upshot, though, is Duke could raise rates. Nowhere in the bill does it mention public welfare.