State has authority to force Duke Energy to excavate remaining coal ash basins in NC, judge rules

RALEIGH, N.C. —A judge sided with the state Friday, upholding the state's power to tell Duke Energy to excavate the remaining nine ash basins across five counties in North Carolina.

Earlier this year, the Department of Environment Quality ordered the power company to excavate the ash basins to prevent future coal ash spills after a 2014 spill dumped 39,000 tons of ash from the Dan River plant in Rockingham County into the Dan River.

Duke Energy appealed.

On Friday, however, the administrative law judge presiding over the case dismissed claims that the DEQ couldn't tell the power company to close the coal ash impoundment.

This means the DEQ does has the authority to tell Duke Energy to clean up its coal ash ponds. The court must now decide if this is a fair demand.

“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. “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.”

For decades, Duke Energy had mixed coal ash from its facilities with water and stored the mixture in open ponds.

After the 2014 spill, lawmakers passed a law demanding the energy company end the use of coal ash ponds by 2030.

On April 1, the Department of Environment Quality ordered that Duke Energy excavate the remaining nine ash basins to make sure there are no future spills. The order specifically targetted the basins at Duke Energy's Allen, Belews Creek, Cliffside/Rogers, Marshall, Mayo and Roxboro facilities.

Duke Energy issued a statement days later, arguing that excavation would put a financial strain on customers, suggesting the company would recoup the cost by increasing energy bills. The company announced that it intended to appeal.

The DEQ determined that excavation was the only option that met the requirements of the Coal Ash Management Act "to best protect public health," specifically by disposing of the ash in a lined landfill.

The company described the DEQ's order as "the most expensive and disruptive closure option possible," adding that the department describes the basins in question as "low risk."

“DEQ rigorously reviewed the proposals, and the science points us clearly to excavation as the only way to protect public health and the environment,” DEQ Secretary Michael S. Regan said in a news release.

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