Coal ash will not be disposed of in a former clay mine in Lee County, according to a settlement between three environmental groups, Charah, Inc., and the NC Department of Environmental Quality.
After a five-year legal battle, Charah has agreed that it would not deposit ash in the Colon mine, five miles north of Sanford, in Lee County. The state had originally permitted Charah to put 8 million tons of coal ash on the 411-acre site.
Debbie Hall and Keely Wood of EnvironmentaLee issued a statement that read in part, “We knew we were on the right side of environmental justice … Winning this five year court case just proves that community involvement and Lee County residents’ voices can and do make a difference.”
Forty-one percent of households in the census block that includes the Colon mine are from a community of color, but is well above the state average of 33%.
The Kentucky-based company had already stopped placing ash in the Brickhaven mine, near Moncure in Chatham County, and that site will be closed as required by the state permit. Brickhaven contains roughly 7.3 million tons of ash in lined cells on 145 acres.
The coal ash originated from Duke Energy’s Sutton and Riverbend plants sites in North Carolina.
Environmental groups were concerned that contaminants from the ash would leach into the groundwater and into drinking water wells. Contaminants have been detected in monitoring wells near Brickhaven, but there is some question on whether it is from the mine or naturally occurring.
This week’s settlement includes requirements for more frequent sampling at Brickhaven and the installation of additional monitoring wells.
The court case has been circuitous, with multiple appeals and a judge reversing her own ruling.
The controversy began in late 2014, when the NC Department of Environmental Quality, under Secretary John Skvarla and then his successor, Donald van der Vaart, began the permitting process for the ash to be placed in the mines as structural fill. That process took just seven months, a comparatively short time for a project of this magnitude, but was conducted under the timelines established in the Coal Ash Management Act (CAMA).
CAMA also allows coal ash to be used in mine reclamation.
In May 2016, lawyers for three environmental groups — EnvironmentaLee, the Blue Ridge Environmental Defense League, and Chatham Citizens Against Coal Ash — argued before Administrative Law Judge Melissa Owens-Lassiter that parts of Brickhaven had never been mined. Thus, the ash wasn’t being used as mine “reclamation.”
By permitting Charah to dig up new sites within the mine, the groups argued, DEQ was illegally allowing the company to create small landfills. Those mini-landfills wouldn’t have to comply with stricter solid waste standards.
Judge Lassiter upheld DEQ’s permits, concluding that the facilities were mines, not landfills. Chatham County Superior Court Judge Carl Fox overturned Lassiter’s ruling; the EPA also considered the mines to be landfills under federal coal combustion rules.
DEQ prevailed on appeal, which allowed the material to be deposited in new cells in both Brickhaven and Colon.
In 2019, the environmental groups appealed, and this time Judge Owens-Lassiter reversed her earlier decision and prohibited the company from disposing the ash.
Charah then filed an appeal, but dropped it as part of this week’s settlement.