Environment

Charah appeals judge’s ruling on coal ash disposal in Chatham County

A court case about the practice of burying coal ash in old clay mines is dragging on into its fifth year, raising questions about where Duke will deposit some of its 80 million tons of the material.

Charah/Green Meadow is asking a Mecklenburg Superior Court judge to reverse a decision issued last month by the Office of Administrative Hearings that prohibits coal ash from being deposited in unexcavated areas of old clay mines.

In court documents filed on Dec. 27, Charah attorneys argued that Administrative Law Judge Melissa Lassiter wrongly invalidated state permits that had allowed the company to deposit coal ash in these areas of the old Brickhaven Mine. The 7.2 million tons of ash — encompassing 5.1 million cubic yards — were used as structural fill in both the excavated areas and in new portions of the mine, which is near Moncure in Chatham County.

The NC Department of Environmental Quality had issued the permits to the Kentucky-based company in 2015. The ash came from Duke Energy’s Sutton and Riverbend plants as part of the utility’s full excavation of unlined ash basins. However, Duke Energy is not part of Charah’s lawsuit. DEQ has not filed an appeal.

Lassiter’s ruling also covered the Colon Mine in Lee County, but no ash has been deposited there.

Charah disputed Lassiter’s interpretation of the Coal Ash Management Act. State lawmakers passed CAMA, as it’s known, in 2014, after the Dan River disaster, and amended it in 2016. CAMA was intended to prevent Duke or any public utility from building new — or expanding the existing — unlined coal ash basins or impoundments in North Carolina. Since the structural fill is in a lined cell, and Charah is not a public utility, the company argued that its activities at Brickhaven are not violating the act.

Charah also objected to Lassiter’s analysis of the Brickhaven engineering plans. Lassiter wrote in her ruling that the height of the ash could reach 260 to 320 feet. Charah “failed to justify how the reclaimed land at those heights was a reasonable rehabilitation of the land,” Lassiter wrote.

But that elevation, Charah said, is not above the surface of the ground, but above mean sea level. Although mean sea level varies within the counties, in Sanford it is 358 feet. Moncure lies 217 feet above mean sea level.

The fill sites are lined, although groundwater monitoring from last summer indicated that several contaminants exceeded state standards: barium, chloride, chromium, cobalt, vanadium and total dissolved solids. Known as TDS, total dissolved solids are a general indicator of water quality.

Seven of the eight monitoring wells detected exceedances. Levels of chromium peaked at 17 times the state groundwater standard; cobalt levels were more than six times higher. Vanadium concentrations ranged from 25 to 45 times higher than state standards.

The case began shortly after DEQ issued the permits, in June 2015. Within a month, the Blue Ridge Environmental Defense League, Chatham Citizens Against Coal Ash Dump and Environmentalee had filed a contested case with the Office of Administrative Hearings against the NC Department of Environmental Quality over the permits.

The groups 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.

Originally Lassiter dismissed the case. But since then, DEQ, Charah and environmental groups have filed a series of appeals, culminating in the state Appellate Court sending the case back to the OAH. This time, Lassiter reversed herself.

Therese Vick, research director for the Blue Ridge Environmental Defense League, told Policy Watch that Duke should not move its ash offsite, but place it instead in above-ground storage on utility property. “Charah needs to leave these communities alone,” she said, adding she’s still waiting for additional information from state regulators. “DEQ needs to answer the questions we’ve asked regarding keeping the Brickhaven permit open, and any proposed permit modifications.”

While the ruling focused on Brickhaven and Colon, it could have far-reaching ramifications in Duke’s massive coal ash cleanup. If unexcavated areas of clay mines are off-limits, that could reduce the available acreage for the utility to place the 80 million tons of ash, required under a recent settlement with state regulators and environmental groups.

 



2019 12 27 BREDL Lee Summons and Petition (Text)

Environment

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.

Environment

Coal ash case: DEQ 2, Duke Energy 0

(Photo: David Erickson via Flickr)

An administrative law judge has again ruled against Duke Energy, determining that state environmental regulators acted appropriately in several aspects of requiring the utility to fully excavate its unlined coal ash basins.

Judge Selina Malherbe ruled on two motions yesterday:

  • DEQ provided adequate notice to Duke Energy prior to issuing the April 1, 2019 closure election decision;
  • DEQ properly limited Duke Energy to filing a single closure plan for each coal ash impoundment.

“The judge’s ruling confirms that DEQ acted openly and transparently as we made an informed decision on the closure of the coal ash impoundments,” said DEQ Secretary Michael Regan in a prepared statement. “DEQ stands by its determination to excavate coal ash impoundments across the state. We will continue to defend that decision as this case moves forward.”

Duke Energy issued a statement calling the ruling “disappointing.”

“We will continue working to protect people and the environment, within the rules as set forth under state law as we consider our next steps,” the statement read.

The order is limited to these two issues; Duke could appeal the ruling to the state Superior Court.

In April, DEQ determined that to best protect public health and the environment, Duke Energy must excavate 100 million tons of ash from its final nine impoundments at six plants: Marshall, Belews Creek, Allen, Cliffside/Rogers Mayo and Roxboro.

DEQ allowed the utility to ship the ash offsite to a lined landfill, send it to a facility for beneficial reuse, or build a lined landfill onsite.

Private lawsuits against Duke have already prompted the utility to fully excavate the ash from eight other plants in North Carolina. Basin excavation is complete at Dan River in Eden, the Sutton Plant in Wilmington, and Riverbend Steam Station in Gaston County.

DEQ has dismissed the utility’s concerns that the method would be too expensive, disruptive and environmentally risky. Duke has estimated full excavation would nearly double the cost of the $4 billion to $5 billion cleanup for the Carolinas — a figure disputed by environmental advocacy groups.

Duke Energy appealed DEQ’s decision to the Office of Administrative Hearings. So far, the judge has ruled in favor of the state.

In August, Judge Malherbe affirmed that DEQ had proper legal authority to elect the closure option for each coal ash impoundment. Malherbe dismissed several other Duke Energy claims:

  • That DEQ erred in its timing of selecting a closure plan before Duke Energy submitted its own, which the utility alleged shortcut the process established in state law;
  • That DEQ was wrong to use a comparative standard rather than the yes-or-no standard review of closure plans;
  • That DEQ also erred in determining that Duke must close all of its impoundments by Dec. 31, 2029.

Duke has appealed Malherbe’s August ruling to state Superior Court, and is considering doing the same for yesterday’s decision.

The utility has stated that its scientists have determined cap-in-place is safe for long-term storage. However, public monitoring records have shown that the unlined pits leak.

And even lined pits aren’t foolproof: According to correspondence dated March 12, 2019, Duke notified DEQ that a “potential action leakage rate exceedance” was identified for Cell 6 at the Sutton plant.

The Blue Ridge Environmental Defense League provided the document to Policy Watch.

In a letter, Geosyntec, a consulting firm hired by Duke, noted that the utility “is in the process of addressing” the exceedance.  Over 10 days in February 2019, Duke Energy contractors removed coal ash and protective cover soil in a 12,000-square-foot area.

Beneath the material, workers found two “primary geomembrane perforations” — tears in the liner. The tears were then repaired with five patches, according to the document, and again covered with soil.

A DEQ spokeswoman said no coal ash was released from the breach because of the second liner. The agency did not cite Duke for the primary  liner failure.

 

Environment, News

‘Parents like me should not have the burden of proving that coal ash is dangerous’

Susan Wind and her husband, David Wind. They moved to Florida due to concerns about elevated cancer risks in Mooresville, N.C.

ARLINGTON, Va. — Susan Wind’s 19-year-old daughter is recovering from thyroid cancer, but Wind still worries constantly about her family’s health.

Wind, a former resident of Mooresville, N.C., moved with her family to Florida after her daughter was among the 110 people diagnosed with thyroid cancer in the area within the last five years.

“We didn’t feel safe,” she told Policy Watch in an interview on Wednesday. Her daughter is improving, but she still struggles with her health, Wind said. The move to a new state was hard on her kids, and she’s still concerned about her family. “I’m worried about all of our health,” she said.

After her daughter’s diagnosis, Wind began to investigate the high rate of thyroid cancer in two zip codes near Lake Norman: 28115 and 28117. She believes the illnesses could be linked to toxins contained in the coal ash found throughout the community. She raised $110,000 for a Duke University Study to investigate what might be causing the cancer.

Scientists recommend expanding investigation of suspected thyroid cancer clusters in NC

Policy Watch reported about the suspected cancer cluster and Wind’s family in June 2018.

Wind’s former home is less than two miles from Duke Energy’s Marshall Steam Plant, which sits on Lake Norman.

North Carolina officials in April ordered Duke to remove coal ash from its impoundments at Marshall and five other plants.

Meanwhile, Duke is contesting the decision through the Office of Administrative Hearings.

This week, Wind traveled to a hotel outside of Washington, D.C., to urge the U.S. Environmental Protection Agency to abandon its plans to roll back rules the Obama administration put in place in 2015 to regulate coal ash disposal at power plants around the country.

“It is completely irresponsible to deregulate coal any further so utility companies can save a buck,” Wind told EPA officials as she testified at a public hearing on the proposal.  Read more

Environment, News, Trump Administration

Critics warn Trump EPA’s coal ash plan will let polluters off the hook

WASHINGTON — The Trump administration wants to give electric utilities a pass on proving they could finance a hazardous waste cleanup in the event of a Superfund disaster.

The proposed rule from the U.S. Environmental Protection Agency says electric utilities should not have to make “financial assurances” to cover the risk the industry will produce pollution it cannot afford to clean up.

The rule comes in response to a decade-long push and legal battle with environmental groups, who petitioned the EPA to write the rules during the Obama administration. But under the Trump administration, EPA decided electric utilities do not pose a significant risk and can forego the requirement.

The decision calls into question who will be on the hook to pay for and clean up old waste sites with lagoons of coal ash, the toxic byproduct that is left when coal is burned in power plants to produce electricity. Stored in pits, coal ash can contaminate drinking water or blow into nearby communities. It went largely unregulated until EPA issued rules in 2015 to address the problem.

Earlier this year, the NC Department of Environmental Quality determined that the Duke Energy must remove all coal ash from its remaining nine impoundments at six plants in North Carolina: Allen, Belews Creek, Cliffside/Rogers, Marshall, Mayo and Roxboro.

According to the order, Duke can move the coal ashroughly 100 million tons in total — to lined, dry landfills, either onsite or offsite. The utility can also recycle the ash at beneficiation plants, which prepare the material to be reused in concrete. Three such facilities are planned for North Carolina: in Wayne, Chatham and Rowan counties.

Some advocacy groups are concerned EPA’s proposal could open the door for coal-fired power plants to abandon toxic coal ash pollution or leave consumers to foot the bill.

“We know there is coal ash pollution across the United States that will cost billions of dollars to clean up, and the question becomes who is going to pay for it,” said Sarah Saadoun, a researcher at Human Rights Watch, an international human-rights advocacy group that is tracking the regulation.

The obscure federal rule has gone mostly overlooked since its proposal in July. The public comment deadline closes Sept. 27, but there are currently only seven comments filed — while other environmental regulations garner hundreds of submissions.

“This regulation is a little technical-sounding … but it can have very real repercussions in terms of whether or not coal ash will be cleaned up and whether consumers will be saddled with that expense, or whether the companies that have been polluting will pay to clean it up,” Saadoun said. Read more