In pivotal decision, judge rules DEQ wrongly issued structural fill permits for coal ash disposal

Excavation of coal ash at Duke Energy’s Sutton plant in Wilmington, 2015 (Photo: Duke Energy)

Administrative Law Judge Melissa Lassiter on Friday reversed her earlier decision in a coal ash case, ruling that state environmental officials exceeded their authority when they allowed the ash to be disposed in unexcavated areas of the Brickhaven and Colon mines.

The mines are in Moncure, in Chatham County, and in rural Lee County.

The NC Department of Environmental Quality had granted permits on June 5, 2015, to Charah/Green Meadow for the purpose of using coal ash as structural fill. The permits allowed Charah to place the ash in lined cells not only in previously excavated pits, but also on top of land that, although within the mine boundary, was untouched.

EnvironmentaLee and the Blue Ridge Environmental Defense League had argued that since Charah was putting the material in unexcavated areas, those portions of the mine were tantamount to landfills. In that case, the groups said, the unexcavated areas should be considered solid waste landfills, which operate under stricter regulations.

Lassiter agreed, and voided the permits for areas that excavated after June 6, 2015. Areas excavated before that date are not affected, and the permits are valid.

In addition, the ruling requires DEQ to the modify the mining permits for unexcavated areas. These modifications are to allow for mine reclamation “using other means” than structural fill.

The Kentucky-based company had contracted with Duke Energy to use coal ash from the utility’s Riverbend and Sutton plants as structural fill. However, Duke Energy was not part of the lawsuit.

In its permits, Charah was allowed to deposit the ash as structural fill up to 50 feet high. However, according to court documents, the maximum elevations for the structural fill at Brickhaven ranged from 260 to 294 feet. At Colon, top of the structural fill could have been as high as 330 feet.

The reclaimed areas of the mine could ostensibly be redeveloped or put to other beneficial use. However, given those heights, redevelopment is unlikely. Lassiter wrote in her order that DEQ “failed to justify how reclaimed land at those heights was a ‘reasonable rehabilitation’ of the affected land.” She also questioned whether Charah was merely excavating new areas solely for coal ash disposal and not for “subsequent beneficial use of reclaimed land.”

BREDL organizer Therese Vick praised the decision and admonished the agency for issuing the permits. “DEQ knew what they did was wrong, yet they kept trying to defend the indefensible,” Vick wrote in a press statement. “No community should ever have to go through this again.”

DEQ spokeswoman Laura Leonard said the agency “is still reviewing the details of the ruling and will determine next steps.”

Charah issued a similar statement, adding that it does not believe “that the decision requires any excavation” of area where the work, not deemed unpermitted, has already been completed. “We do, however, disagree with some aspects of the ruling and are considering our options for proceeding.”

The work is finished at Brickhaven. Lassiter’s decision carries greater implications for the Colon mine because it has not yet received coal ash.  The ruling could also affect future disposal of the ash in the dozens of other old clay mines in the state. Duke Energy is scheduled to file a cleanup proposal for ash pits at six plants by the end of the year. DEQ has ordered those pits be fully excavated, with the ash placed either in landfills onsite or offsite. In separate legal case, Duke Energy has contested DEQ’s order, but no final ruling has been announced.

BREDL’s position on coal ash disposal is that it should be stored above ground, isolated from the environment, on utility company land. However, many communities, such as Mooresville, which is near the Marshall plant, want the ash excavated and hauled away.

The case began in 2015, when the environmental groups filed a contested the state permits. That year Lassiter ruled in favor of DEQ, which had maintained the permits were properly issued. She then dismissed the case.

Environmental groups then appealed to Chatham County Superior Court, where Judge Carl Fox ruled that DEQ had improperly issued permits allowing disposal in newly excavated areas.

In 2018, DEQ argued its case before the NC Court of Appeals, which ruled that both Lassiter and Fox had committed legal errors; the three-judge panel sent the case back to Lassiter.

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