Judge upholds order requiring Duke Energy to excavate coal ash at Belews Creek Steam Station, five other NC sites

Oct. 31-- Oct. 31--An administrative judge has rejected another part of Duke Energy's appeal seeking to overturn an order by environmental regulators requiring the excavation of coal ash stored at six "low risk" sites, including the Belews Creek Steam Station in Stokes County.

North Carolina Administrative Law Judge Selina Malherbe ruled Monday for a second time in the case that the N.C. Department of Environmental Quality did not abuse its authority in ordering the Charlotte-based utility to excavate coal ash basins at the coal-burning plant northwest of Greensboro and five, other North Carolina plants.

DEQ Secretary Michael Regan hailed the judge's decision for confirming that his agency "acted openly and transparently as we made an informed decision on closure of the coal ash impoundments," a term for basins that hold decades of submerged ash.

"DEQ stands by its determination to excavate coal ash impoundments across the state," Regan said in a prepared statement. "We will continue to defend that decision as this case moves forward."

In August, Malherbe also sided with DEQ on a similar issue, rebuffing an earlier series of claims by attorneys representing Duke that the agency lacked the power to mandate specific ash-basin closure methods.

In her ruling this week, Malherbe threw out assertions by Duke that the state agency failed to provide adequate notice that its April 1 order was pending and that regulators improperly limited the utility to filing only one proposed closure plan for each disputed site.

The appeal underway before Malherbe was triggered by DEQ's order this spring that all of Duke Energy's submerged coal ash must be excavated for reburial in lined landfills, even at its six plants considered at low risk for a spill or other mishaps.

Duke immediately appealed to the state Office of Administrative Hearings, the first stop in challenging such state agency orders.

The appeal does not include the former Dan River Steam Station in Rockingham County, the now-demolished plant where a major coal ash spill occurred five years ago. Duke Energy recently completed excavating coal ash at the former Dan River plant and reburied it in a new landfill on site.

In addition to Belews Creek, about 30 miles northwest of Greensboro, other lower-risk plants involved in the ongoing dispute include Allen Steam Station near Belmont in Gaston County; Marshall Steam Station near Terrell in Catawba County; Rogers Energy Complex near Cliffside in Cleveland and Rutherford counties; and the Roxboro and Mayo plants, both located in Person County.

Duke officials contend that at the lower-risk sites, it would be just as effective and less costly to leave much of the ash in place, filter and drain the water above it, and then cover the waste under a cap of impervious fabric.

Duke Energy spokesman Bill Norton said that while the latest decision is disappointing, the utility's main argument in the appeal remains under consideration.

"The core issue -- that DEQ made the wrong decision in mandating excavation -- has yet to be determined," Norton said in an email message. "We are appealing the state's coal ash excavation order to protect customers from excessive disruption and unnecessary costs."

Many residents living near the Walnut Cove plant and environmental groups support DEQ's decision, asserting that the surest way to prevent pollution in years to come is to dig up the ash and bury what cannot be recycled in a lined landfill.

But Norton said scientific studies have shown that the coal ash threatens "just the groundwater under and immediately next to our Belews ash basin." He said nearby "drinking and recreational water supplies" are safe and would stay that way whether the remaining ash is capped in place or buried in a lined landfill.

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