Duke Energy to DEQ: See you in court

Duke Energy announced yesterday that it would appeal to the Administrative Office of the Courts the state’s order to excavate all of the coal ash from the utility’s nine remaining unlined pits, also known as basins.

In a prepared statement, Duke Energy spokeswoman Paige Sheehan said the order, which was issued on April 1, “would impose a financial burden on our customers and the economy of the Carolinas through the most expensive and disruptive closure option possible, despite that these basins are rated ‘low risk’ by NCDEQ.”

Duke has stated full excavation would add $4 billion to $5 billion to the existing $5.6 billion in costs to clean up all of its ash in the Carolinas — a number that, given the history of other utilities’ estimates for full excavation, could be inflated.

The nine basins are spread over six plants:

Belews Creek (Stokes County ) 1
Marshall (Catawba County) 1
Mayo (Person County) 1
Allen (Gaston County) 2
Roxboro  (Person County) 2
Cliffside/Rogers (Cleveland/Rutherford counties) 2

In 2016, under the a different administration of Gov. Pat McCrory and DEQ Secretary Donald van der Vaart, the state reclassified several of Duke Energy’s basins from high risk to intermediate risk, based on several factors, including groundwater flow. Low risk basins were not required to be cleaned up until 2029. Environmental groups immediate criticized the reclassification, charging politics, not science guided the reclassifications.

For the “low risk” basins, Duke had proposed to either cap the material in the unlined pits — or to develop a “hybrid” of excavation and cap-in-place. At public meetings across the state, residents demanded that DEQ force the utility to fully excavate all of the material and place it in a lined landfill.

In its order, DEQ said its science determined excavation was the clean up method that would be the most protective of health and the environment.

“The process by which NCDEQ arrived at its decision lacked full consideration of the science and engineering, and we will provide those details when we file an appeal before the North Carolina Office of Administrative Hearings in the near future” Sheehan said.

“DEQ stands by its assessment and conclusions that all coal ash in North Carolina must be excavated,” said Megan Thorpe, DEQ’s director of Public Affairs, in response.

Duke Energy’s claims that full excavation would impose “financial burdens” on its customers and the economy. It’s likely that the state Utilities Commission would pass along some of the costs to ratepayers, but the commission told Duke in the last rate case that it would evaluate those on a “case-by-case” basis. Duke gave no rationale for its claim that full excavation would harm  the economies of North and South Carolina. There is no evidence that full excavation has had similar effects in other states where that method has been used.

Frank Holleman is a senior attorney at the Southern Environmental Law Center. The SELC successfully sued the utility to force it to fully excavate its ash at the other eight plants in North Carolina. “Duke Energy’s refusal to accept responsibility for cleaning up its dangerous coal ash pits is a slap in the face to the communities in North Carolina living with the pollution from Duke’s leaking, unlined pits,” Holleman said in a prepared statement. “Duke Energy’s decision to fight these cleanups ignores the science confirming that its sites have been polluting our water for decades and will continue to do so for centuries. And it places the public and our rivers and lakes at continued risk of another coal ash catastrophe from the next hurricane or structural failure.”