Judge Fox: DEQ acted improperly in allowing coal ash to be buried in unmined land in Chatham County

Trucks carry tons of coal ash to the Brickhaven Mine in Chatham County. (Photo: Duke Energy)

A fter two years, North Carolinians now know the legal distinction between a mine and a landfill. That makes all the difference to residents of Chatham and Lee counties, where millions of tons of coal ash from Duke Energy are being stored in both abandoned mines and new, gigantic holes in the ground.

In a judicial order issued March 31, Chatham County Superior Court Judge Carl Fox ruled that the NC Department of Environmental Quality should revoke two of the four mine reclamation permits it had issued to the Charah/ Green Meadow company.

Coal ash can be stored in old slate and clay mines in Chatham and Lee counties, Fox ruled. However, the material can’t be placed in newly excavated areas. Those are effectively landfills and subject to more stringent waste disposal regulations.

Therese Vick of the Blue Ridge Environmental Defense League, one of the groups that petitioned the court, said Fox’s decision is the first step in protecting human health and the environment. “The DEQ is under new leadership,” Vick said. “It is time for Secretary Michael Regan to right this injustice, and stop trying to defend the indefensible.”

Jamie Kritzer, DEQ acting deputy secretary for public affairs, said state environmental and justice department officials are reviewing the order “to determine its implications.”

In July 2015, three environmental and citizens’ groups — BREDL, Environmentalee and Chatham Citizens Against Coal Ash Dump — had filed for a contested case hearing over the permits.

In May 2016, Administrative Law Judge Melissa Owens Lassiter had ruled that DEQ’s Division of Energy, Mineral and Land Resources legally permitted Charah/Green Meadow to dispose of coal ash not only in the former Brickhaven and Colon mines, but also in newly excavated areas.

Last November, the three groups filed for a judicial review of Lassiter’s order. Their attorney, John Runkle, had argued that DEQ had “conflated” solid waste and mining permits, “creating a hybrid regulatory scheme in order to expedite the permitting process.”

In his ruling, Judge Fox cites the Mining Act of 1971, which excludes certain activities from the definition of mining: “excavation or grading when conducted solely in aid of on-site farming or on-site construction for purposes other than mining.”

DEQ “improperly” issued permits for that unmined land, Fox wrote.

Fox did agree with the original ruling that Charah/ Green Meadow can legally store coal ash in old mines. To store the coal ash, those former mines must have liners, leachate collection systems, caps and groundwater monitoring systems.

The coal ash originates from impoundments at Duke Energy’s coal-fired power plants in North Carolina. As part of the Coal Ash Management Act, high-risk impoundments at three plants — Dan River, Sutton and Riverbend — must be excavated and closed by Dec. 31, 2019. A fourth plant, Asheville, had an original deadline of 2019, but following the Mountain Energy Act, it was extended until 2022 to allow a natural gas plant to come online.

A Kentucky-based firm, Charah, formed a separate company, Green Meadow, to transport and bury the coal ash as “structural fill” in Chatham and Lee counties. At some point, the ash could be reused in concrete and other building materials.

About 8 million tons of coal ash would be dumped in the Colon Mine, five miles north of Sanford in Lee County.The Brickhaven mine is located four and a half miles southeast of Moncure, in Chatham County. It will receive roughly 12 million tons of coal ash.

Scott Sewell, chief operating officer of Charah, issued a statement, saying the company is  “determining what impact this order has for operations and are examining the next steps to take to support DEQ in efforts to uphold all permits for these projects.”

The structural fill projects, Sewell wrote,  “provide for safe, beneficial use of coal ash and are designed to restore the land to be suitable for development.”

Duke Energy spokesman Jeff Brooks said via email that the Brickhaven and Colon mine projects “are an important part” of the utility’s strategy to dispose of its coal ash by the state’s deadline. “We are hopeful that this matter can be resolved quickly and we can continue our work to safely close ash basins in ways that protect the public, the environment and the costs our customers pay,” Brooks said.

Order on Judicial Review by LisaSorg on Scribd

Petition for Judicial Review 1 by LisaSorg on Scribd

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