BREAKING: Judge rules for DEQ in Round 1 of coal ash cleanup appeal

Coal ash excavation (Photo: Duke Energy)

This is a breaking story and has been updated with a statement from Duke Energy. Policy Watch has contacted the NC Department of Environmental Quality for additional details.

State environmental regulators were not wrong in choosing the method of closure — excavation and removal of millions of tons of coal ash — at Duke Energy impoundments, Administrative Law Judge Selina Malherbe has ruled.


Duke Energy had contested DEQ’s April 1 decision to require it to excavate all of the coal ash from nine unlined impoundments at its remaining six plants. The ash would then be placed in lined landfills onsite or offsite.

Private lawsuits already have compelled Duke Energy to excavate ash from impoundments at eight of its 14 North Carolina plants.

Duke Energy hasn’t exhausted its arguments in the appeal. However, Malherbe’s ruling swings the legal pendulum toward DEQ.

“I am very pleased with the judge’s ruling.  It confirms that DEQ has the authority to select the method of closure for coal ash impoundments,” said DEQ Secretary Michael Regan in a prepared statement. “DEQ stands by its determination that the best way to protect public health, communities and the environment is to excavate coal ash impoundments across the state. We will continue to defend that decision as this appeal moves forward.”

Malherbe dismissed four 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 opposed full excavation of its unlined pits, arguing that the economic and environmental costs of excavation at these sites didnt outweigh the benefits. Bill Norton, a Duke Energy spokesperson, said in April the utility’s own science and engineering show the six remaining sites are safe for long-term storage in unlined impoundments that are capped to help prevent water from entering.

The utility estimates full excavation and dry storage would add $4 billion to $5 billion to the current estimate of $5.6 billion for remediations at its plants in North Carolina and South Carolina.

Duke Energy spokeswoman Paige Sheehan provided this statement:

“While we are disappointed in the ruling on this issue, we will proceed with the appeal, standing firm in our belief that the NCDEQ decision is wrong, not based in science and engineering – and not in the best interest of our customers and communities.

“The state’s decision on basin closure mandates the most extreme option for the lowest-risk basins, ignoring information that clearly shows capping the ash in place would continue to fully protect people and the environment.

“By contrast, excavation would drastically increase the cost to customers and create decades of disruption for communities – with no measurable benefit – compared to safely capping the ash in place.”

After DEQ denies WesternGeco’s request to conduct offshore seismic testing, company appeals to feds

Last year coastal residents packed a hearing and rally in opposition to offshore drilling and seismic testing. (File photo: Lisa Sorg)

A clash between the state Department of Environmental Quality and an offshore drilling company has escalated to the federal level, with the U.S. Secretary of Commerce Wilbur Ross potentially intervening.

WesternGeco plans to shoot air guns  every 10 seconds, 208 days a year, at 225 to 260 decibels — louder than a rocket launch — from 19 miles offshore from the coast of Maryland, past North Carolina and further down the East Coast to 50 miles offshore of St. Augustine, Fla.

Although this part of the Atlantic Ocean is beyond states’ jurisdictional boundary of three miles, energy exploration companies still must seek state certification to determine if the proposals comply with their respective coastal management laws. If the state objects, as has North Carolina, the federal government can’t issue a permit. However, the US Department of Commerce ultimately rules on appeals and disputes.

“We remain vigilant in our opposition to activities related to oil and gas exploration off the North Carolina coast,” Secretary Michael Regan said in a prepared statement. “WesternGeco’s proposal for seismic airgun blasting poses too many risks to our commercial and recreational fishing economy, marine life and overall coastal environment and economy that our state cannot afford to take. We will use any available avenues to fight WesternGeco’s appeal.”

In March WesternGeco requested a Consistency Certification from DEQ that would have allowed the company to explore for offshore energy deposits using air guns. The state’s Division of Coastal Management rejected the application as being incomplete. NOAA overruled the state, saying the company’s application was sufficient.

Since then, several state agencies have reviewed the application and held public hearings on the coast about the proposal. DCM, the Division of Marine Fisheries and the Wildlife Resources Commission all objected to the proposal because of the likely damage to aquatic life, ecosystems and commercial and recreational fishing. DEQ also convened a scientific panel that concluded the company’s actions could not only kill fish but zooplankton, the foundation of the marine food chain.

Even though the company would be using air guns outside of North Carolina’s jurisdictional boundary, the sound and shock waves travel for miles. Fish and other aquatic life often swim farther asea and then return to the North Carolina coast, its bays and estuaries. The seismic testing could harm the sea life that makes North Carolina its home base, scientists concluded.

“We know that seismic airgun blasting is incredibly dangerous for marine life and is the first step toward offshore drilling in the Atlantic,” said Randy Sturgill, Oceana senior campaign organizer. “North Carolinians and the DEQ have spoken – seismic airgun blasting is not compatible with our coast.

“We won this fight before and we’ll win it again. We are going to do everything in our power to stop this unlawful, irreparable and needless harm.”

On July 10, WesternGeco appealed the state’s findings to US Commerce Secretary Wilbur Ross. Among several claims, the company says that DEQ failed to describe how the proposal is inconsistent with state coastal policies. In fact, North Carolina has approved of similar surveys, albeit under a different administration.

From April 22 though  June 16, 2015, when Donald van der Vaart was DEQ Secretary and Pat McCrory was governor, the state found that four other geophysical surveys were consistent with the state’s coastal management plan.

However, President Barack Obama subsequently banned drilling in the mid-Atlantic for five years, and the seismic testing did not occur.

Both McCrory and van der Vaart advocated for offshore drilling, over the objections of thousands of coastal residents and governments. (The Carteret County and Onslow County commissioners are the only two local governments that have not publicly opposed these practices.)  Coastal opposition, not only in North Carolina but up and down the Eastern Seaboard, to offshore drilling and seismic testing has strengthened, not waned since then.

The Trump administration supports offshore drilling. When Trump became president, he sought to overturn Obama’s ban in the Arctic and mid-Atlantic, but it’s been stalled by several legal challenges. Trump also recently announced rollbacks to offshore drilling safety rules.

Tricia Smith, spokeswoman for the Division of Coastal Management, said that even though offshore drilling in the mid-Atlantic is  subject to the ban, the state’s permitting process still continues.

Commerce Secretary Ross can overrule the state’s decision only for matters of national security or if the request is consistent with the goals of  federal Coastal Zone Management Act. WesternGeco, in its appeal, is arguing that “the national interests furthered by the survey outweigh any adverse coastal effects.”

Crystal Coast Waterkeeper Larry Baldwin said that after Obama’s drilling ban, some people shifted their attention to other environmental issues. “People got too comfortable,” Baldwin said. “The current [Trump] administration, they’re just going to wait it out. It’s not a dead issue.”

With DEQ’s Community Mapping System, learn where polluters locate in neighborhoods of color

The proposed methyl bromide site would have added a major pollution source to the small towns of Acme and Delco. DEQ’s Community Mapping System provides data on polluting facilities, as well as demographic and health information. (Source: DEQ Community Mapping System)

Comment period on the mapping system ends Wednesday, July 10.

When Columbus County officials decided in 2018 to allow the Australian company Malec Brothers to emit 140 tons of toxic methyl bromide into the air at its log fumigation facility, they did not have the benefit of an environmental justice map.

They might not have known that the small towns of Acme and Delco, which are 50 percent communities of color, were already disproportionately burdened with several hazardous waste areas, Superfund sites and air pollution. A map, linked to several environmental and health databases, could have changed their mind.

There were no guarantees the planning board and commissioners would have consulted such a map, but the residents of Acme-Delco likely would have done so. And armed with that information, residents could have fought the facility from the get-go. As it turns out, under intense public pressure Malec Brothers decided not to use methyl bromide at its facility — but for residents of this small town, the fight, albeit successful, was time-consuming and stressful.

The NC Department of Environmental Quality has released an early version of its Community Mapping System, an interactive tool that allows users to easily view and analyze environmental, racial, ethnic and health data.

DEQ Secretary Michael Regan told Policy Watch that developers, city planners and businesses can use the mapping tool to determine siting; the public can use it to advocate for or against a plan — and to watchdog a project.

“These conversations should be occurring before the planning process,” Regan said, “to avoid the battle at the end of the permitting.”

The mapping tool is the result of a 2017 federal Civil Rights settlement between DEQ and neighbors of industrialized hog operations in eastern North Carolina. It expands on the EPA’s Environmental Justice Screening tool with  additional layers of information, such as health statistics and air, water and waste permitting.

“We wanted to have all of the information in an aggregated fashion,” Regan said, adding that the public and government officials — long before DEQ even gets involved — can ask important questions: “Does this make sense? Is this a good idea?”

This map of East Durham, which is predominantly Black, shows the dozens of pollution sources in the area. Clicking on the small crosses brings up a community demographics box; it also contains a link to more environmental justice information. (Map: DEQ Community Mapping System)

The map website features a user guide. The legend lists icons for different types of pollution sources, including hazardous waste sites, areas contaminated with dry cleaning solvents, old and currently operating landfills, and industrialized swine, cattle and select poultry operations. Click on an icon and see a link to public documents about the site, which are kept on the DEQ website.

You can get a summary of all the polluters by type, as well as set a radius for all contamination sources within a certain distance. Click on a neighborhood on the map and you’ll see a pop-up window with demographic data, as well as health and illness statistics.


Because of data gaps, two Superfund sites are missing from the map of Aberdeen. The sites, former pesticide dumps, lie just north and south of the new elementary school. The majority of the students who will attend the school are Black, Latinx or low-income. (Map: DEQ Community Mapping System)

The system has a few shortcomings:

  • The pollution locations are derived from documents and databases that could be incomplete. Policy Watch recently reported on an elementary school under construction in Aberdeen that lies within a mile of several pollution sources, including four former pesticides dumps, which are Superfund sites. However, only the main contaminated site appears on the map, not the satellite Superfund areas where additional dumping occurred.
  • Large poultry operations that use the “dry litter” method of waste disposal are not listed. Because state law doesn’t require these facilities to have a permit, DEQ doesn’t know where they are located. (During this legislative session, Sen. Harper Peterson and other Democratic lawmakers have tried to insert language into the Farm Act to study the potential environmental and health effects of these operations. Sen. Brent Jackson put the kibosh on any such transparency. )
  • The health and income data is compiled by census tract, not census block. This is important because tracts are much larger than blocks. For example, the presence of more affluent, white neighborhoods — unlikely to be located near major polluters — could obscure the effects of the contamination on people of color who live within the same large tract. Compiling key data by small census block could give a truer picture of who lives closest to the pollution sources and how their health might be affected.

The mapping tool is useful for broadly understanding the pollution sources within a community and who lives nearby. But maps are merely representations. Nothing substitutes for “ground truth” — visiting a neighborhood, talking with residents, and seeing, smelling, and hearing what they are exposed to every day.

The comment period ends Wednesday, July 10. There are several ways to send comments:

The Week’s Top Stories on Policy Watch

1. U.S. Supreme Court’s refusal to address partisan gerrymandering fuels state court fight

In a stinging defeat for voting rights advocates, the U.S. Supreme Court’s conservative-leaning justices ruled Thursday that federal courts are incapable of solving partisan gerrymandering challenges.

“Excessive partisanship in districting leads to results that reasonably seem unjust,” wrote Chief Justice John Roberts in the 5-4 opinion. “But the fact that such gerrymandering is ‘incompatible with democratic principles’ does not mean that the solution lies with the federal judiciary. We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts.

“Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions.” [Read more…]

Bonus read: Three initial thoughts on a very dark day for American democracy


2. U.S. Supreme Court halts Trump Administration’s citizenship Census question for now

In a surprising move Thursday, the U.S. Supreme Court temporarily blocked the Trump Administration’s addition of a citizenship question to the 2020 Census.

It wasn’t the citizenship question in and of itself that gave the high court pause, but rather the rationale behind it, which Chief Justice John Roberts wrote “seems to have been contrived.”

Attorneys for the Trump Administration told justices it wanted the citizenship question included in the 2020 Census to help enforce federal voting rights laws.

“This rationale is difficult to accept,” Roberts wrote in the 5-4 opinion. “One obvious problem is that the DOJ provided no basis to believe that more precise data would in fact help with Voting Rights Act enforcement.”

The case was remanded back to the Department of Commerce to allow them an opportunity to offer a more adequate explanation. President Donald Trump was not pleased with the outcome. [Read more…]


3. Pork fattens the environmental budget while necessities get chopped

The NC Department of Environmental Quality can’t always get what it wants. It can’t even get what it needs.

DEQ had requested 37 new positions in the state environmental budget to address the crisis of perfluorinated compounds in drinking water supplies. The House tepidly responded with seven positions; the Senate, always financially brutal toward DEQ, eliminated the appropriation. The conference budget settled for just five additional full-time positions, but only two of them are devoted to PFAS sampling and analysis. The others are for permitting and administration.

DEQ Secretary Michael Regan criticized the conference budget, saying in a prepared statement that it “does not allow DEQ to keep pace with the demands of a growing economy or the critical water quality issues facing North Carolina. The lack of funding negatively impacts the communities dealing with PFAS contamination and aging water infrastructure. It asks them to go without necessary resources.” [Read more…]


4. GOP spending plan offers modest teacher pay raises, no Medicaid expansion

A smug, confident Republican leadership on Tuesday released a two-year, compromise spending plan they said delivers the most dollars — $14.2 billion next fiscal year — ever spent on public education in North Carolina.

Overall, the budget proposal calls for spending $24 billion in the first year of the biennium and $24,8 billion the second year.

Under the budget proposal, a compromise between the House and Senate plans, the state would spend $14.8 billion in the second year of the biennium.

The proposal includes an average 2 percent raise for teachers the first year and just under 2 percent the second year. [Read more…]


5. Amid the budget showmanship, North Carolina’s budget will surely suffer

North Carolina’s legislative leaders have finally – in one big, bursting feat of Houdini-like showmanship – liberated themselves from truth and context.

Their mastery of the mummers play was a revelation Tuesday, in their ruefully insincere keening that we, at this late budgetary hour, have arrived at this precipice without input from Gov. Roy Cooper – their Democratic foil, who submitted his own $25.2 billion budget 16 weeks ago, who called for nine percent teacher pay raises and a $3.9 billion statewide bond referendum for school infrastructure and $15 million to combat the opioid epidemic and, of course, Medicaid expansion. These are things we may regard as input.

In the off chance that GOP lawmakers find their browsers kaput or their Lexis Nexis accounts hacked, here is an easy link to that budget and more.

Otherwise, for the purpose of negotiations, it seems Cooper’s proposals – banished forthwith from the GOP’s propagandizing press conference materials Tuesday – are cast into a void, disregarded by officials without a passing respect for transparency. [Read more…]


6. Trump-inspired anti-immigrant bill poses a grave threat to crime victims and public safety

It’s back…and, tragically, worse than ever. After fading from view back in April upon winning approval by the state House of Representatives, a Trump Administration-inspired bill to force North Carolina sheriffs to become accessories to federal immigration enforcement operations is moving quickly and could be on Gov. Cooper’s desk later this week.

As readers will recall, the original version of House Bill 370 sought to force all North Carolina sheriffs to honor “detainer requests” from federal immigration officials (ICE) for people in their custody. Detainers are not judicial orders signed by any court official, and they are not arrest warrants that require any kind of finding of probable cause. The individuals targeted by detainer requests are typically otherwise eligible for release from jail or prison.

Last fall, several new sheriffs were elected in the state’s larger, urban counties after running on platforms that pledged to no longer honor detainer requests – a discretionary decision that’s long been within the purview of individual sheriffs. [Read more…]


7. After outcry, Superintendent Mark Johnson tries to put a lid on reading program controversy

Last week, I published a blog post detailing how NC Superintendent Mark Johnson ignored the recommendation of a committee of educators and made the unilateral decision to award the contract for a K-3 reading screener to a company called Istation.

According to former DPI employee Amy Jablonski, who headed the evaluation committee, Johnson’s selection of Istation disregarded the Request for Purchase (RFP) evaluation team’s advice that North Carolina schools should continue using the mClass screener which has been in place since 2013.  The change means moving from a model in which children read one-on-one with their teacher to one where their interaction is with a computer.

The fact that the blog post has been shared more than 13,000 times on social media is a testament to how unhappy educators and public school families alike are with the decision – and how eager they are to learn exactly how it happened.[Read more…]


8. Listen to our latest radio interviews and commentaries with Policy Watch’s Rob Schofield

Click here to listen


9. Weekly Editorial Cartoon:


Pork fattens the environmental budget while necessities get chopped

From the ‘New York World,” 1848

The NC Department of Environmental Quality can’t always get what it wants. It can’t even get what it needs.

DEQ had requested 37 new positions in the state environmental budget to address the crisis of perfluorinated compounds in drinking water supplies. The House tepidly responded with seven positions; the Senate, always financially brutal toward DEQ, eliminated the appropriation. The conference budget settled for just five additional full-time positions, but only two of them are devoted to PFAS sampling and analysis. The others are for permitting and administration.

DEQ Secretary Michael Regan criticized the conference budget, saying in a prepared statement that it “does not allow DEQ to keep pace with the demands of a growing economy or the critical water quality issues facing North Carolina. The lack of funding negatively impacts the communities dealing with PFAS contamination and aging water infrastructure. It asks them to go without necessary resources.”

A $2 million PFAS Recovery Fund initially was to be used to provide alternate water supplies to households whose drinking water had been contaminated by Chemours. But a consent order between Chemours, DEQ and Cape Fear River Watch requires the company to pay for and supply the water, either through filtration systems or connections to public supplies.

Freed up, those recovery funds could have been used to add staff in the Division of Water Resources for PFAS work. Instead, the conference budget divvies the money among several earmarks, including general wastewater and water projects for Benson (represented in the Senate by Republican Brent Jackson, an appropriations committee chairman) and Kenansville (also represented by Jackson and Rep. Jimmy Dixon, a Duplin County Republican who chairs appropriations in the House).

Neither town has documented PFAS contamination in its water supply.

Maysville does have a PFAS problem. The town would receive $500,000 to replace its only well, which has been contaminated with PFAS by firefighting foam. It’s unclear, though, if a new well is prudent. Granulated carbon filters can remove PFAS. And the Maysville well taps draws from the Castle Hayne aquifer; if the aquifer itself is contaminated, a new well might not consistently provide clean water.

Five towns with friends in high places secured earmarks, cutting in line to grab a slice of the way-too-small money pie for water and sewer improvements:

  • Four Oaks (again Sen. Jackson territory): $200,000
  • Wilson’s Mills (ditto, Jackson): $100,000
  • Salemburg (Jackson again delivers): $150,000
  • Midland (represented by Sen. Paul Newton, an appropriations subcommittee chair): $500,000
  • Bethel (represented by Democrat Don Davis, who’s on two appropriations committees): $150,000

The State Water Infrastructure Authority estimates at least $17 billion in improvements are needed in North Carolina over the next 20 years. Since the needs are so great and so numerous, the infrastructure authority accepts grant applications from municipalities and then scores them before awarding any money — independent of the state budget earmarks.

Of the seven cities and counties that received infrastructure earmarks in the state budget, only two — Maysville and Sampson County — received funding approval from the Water Infrastructure Authority last fall, according to DEQ documents. Bethel received a small grant for “assessment.” The other four towns didn’t even apply.

Another year, another earmark for the Charlotte Motor Speedway, which is in the pole position to receive as much as $2 million from the pot of money to clean up old dumps, known as pre-1983 landfills because they were built before that year, when liners began to be required. There are more than 800 sites statewide with unlined landfills, none of them apparently with as much cachet as CMS. [Update: A reader noted that this is not new money.
However, the provision does change the required match from 2:1 two private dollars for every one State dollar to 1:1, still a great deal for CMS.]

This is the second consecutive such appropriation for CMS. The infield sits atop one part of a landfill, which extends beyond the gates. The landfill was built in 1980 and closed in 1992, although dumping reportedly occurred there since the 1940s. Groundwater monitoring from 2018 showed spikes of barium, cobalt, benzenes, nickel, toluene, and acetone — all of which can cause health problems and in some cases, cancer.

Budget-writers also inserted a controversial provision to delay by a year the implementation of the general swine, cattle and some poultry operating permits. The new regulations, announced by DEQ after several months of public comment, are scheduled to go into effect on Oct. 1.

This language essentially uses a legislative cudgel to hammer a judicial challenge to the new rules. The Farm Bureau filed a contested case hearing with the Administrative Office of the Courts, alleging DEQ overstepped its authority. The state Board of Agriculture recently voted to support the Farm Bureau’s litigation.

And this week, the NC Environmental Justice Network intervened in the case, arguing the opposite viewpoint: The rules aren’t strong enough.

University Energy Centers, perennially positioned beneath the guillotine, would receive no money, according to the conference budget. The House had funded NC State ($400,000), NC A&T ($200,000) and Appalachian State ($200,000); the Senate, again, excised the funding, and none of it was restored.

Read more