Charah/Green Meadow could lose tens of millions of dollars and its reputation “irreparably damaged,” if it is forced to reduce the amount of coal ash it disposes in the Brickhaven mine near Moncure in Chatham County.
In court documents filed last week, Charah, a Kentucky-based coal ash disposal company, asked a Chatham County court to allow the company to continue dumping the material in areas of the Brickhaven mine — even though a judge has ruled the environmental permits were improper.
If granted, the stay would allow Charah to continue to dispose of tons of coal ash from Duke Energy into newly excavated areas of the Brickhaven clay mine while a legal case winds its way through the appellate court.
A hearing on the stay request is scheduled for Monday at 2 p.m. in Chatham County Superior Court.
The Blue Ridge Environmental Defense League, Environmentalee and Chatham Citizens Against Coal Ash Dump had filed a civil suit against the NC Department of Environmental Quality and Charah. They alleged that DEQ had wrongly granted permits for disposing coal ash in two newly excavated areas of the mine. Since they are not part of the original mine, those cells are tantamount to a landfill, the groups argued.
In late March Chatham County Superior Court Judge Carl Fox agreed. He ruled that DEQ had improperly granted permits for disposing coal ash in those two new areas of the mine. While two lined cells in the mine itself can receive coal ash, Fox ruled, digging new pits, even lined, for that material constitutes a landfill, with separate and more rigorous permitting requirements.
Earlier this week, DEQ and the state attorney general’s office filed legal documents taking the case to the state Court of Appeals.
The case has not yet been listed on the appellate court’s calendar for oral arguments.
According to an affidavit by Scott Sewell, Charah’s chief operating officer, if the stay is not granted, the company could not dispose of 4.5 million tons of coal ash at Brickhaven. Since Duke Energy pays Charah by the ton to excavate, transport and dispose of the ash, the company would lose “a substantial” amount of money.
“Charah has a long relationship with Duke, which will suffer irreparable harm if the order is not stayed,” Sewell testified.
The Coal Ash Management Act of 2014 and an updated version in 2016, establish deadlines for the coal ash disposal, depending on the risk of the impoundments at the Duke Energy sites. Riverbend and Sutton, designated high-risk, must be excavated and closed by December 2019. Brickhaven receives ash from both those sites.
It can take months for an appellate court to rule on a case; even then, the losing party could petition the state Supreme Court to make the final decision.
If the local court doesn’t grant the stay, Sewell claims, by the time a final legal ruling is announced, the December 2019 deadline could pass. “As a result, Charah will miss significant revenue and business-growth opportunities.”
Chatham County, which reluctantly struck a $19 million deal with Duke Energy to accept the ash at Brickhaven, could also have its payments reduced.