The judge finds that the Department of Environmental Quality had authority to order Duke Energy to excavate all of its coal ash pits.

By Greg Barnes

A North Carolina administrative law judge ruled Friday that the state Department of Environmental Quality had the proper legal authority to order Duke Energy to excavate each of its coal ash pits across the state.

The decision by Judge Selina Malherbe to grant DEQ’s partial motion to dismiss will limit the scope of Duke’s appeal of the state’s lawsuit against the company as it moves forward, according to the 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,” DEQ Secretary Michael Regan said in a 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. ”

On April 1, the DEQ ordered Duke Energy Progress LLC to excavate all remaining coal ash impoundments in North Carolina, saying it had “determined excavation of all six sites is the only closure option that meets the requirements of Coal Ash Management Act to best protect public health.” There are nine coal ash basins on the six sites — Allen in Gaston County, Belews Creek in Stokes County, Cliffside/Rogers in Cleveland and Rutherford counties, Marshall in Catawba County, and Mayo and Roxboro in Person County.

Duke Energy appealed the order on April 26, saying it wants to protect customers from excessive cost and disruption, and that it has been safely closing coal ash basins according to state and federal law.

The state wants Duke Energy to excavate all of its coal ash pits and to move the sludge to lined pits in other locations. Duke Energy wants to cap some of the pits in place.

“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,’’ Duke Energy said in a statement.

Duke alleges that the state’s order “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.”

The judge ruled that Duke Energy failed to state a claim for relief and dismissed the following claims:

That DEQ erred by electing the method of closure for each of the nine coal ash impoundments subject to this litigation.

That DEQ erred in making its closure elections before Duke Energy submitted its closure plans.

That DEQ erred in determining that closure must be fully implemented by Dec. 31, 2029.

Named as defendants in Duke’s appeal are the DEQ, Appalachian Voices, the Stokes County Branch of the NAACP, Mountaintrue, the Catawba Riverkeeper Foundation, Waterkeeper Alliance, The Sierra Club and The Roanoke River Basin Association.

Waterkeeper Alliance, the Catawaba Riverkeeper Foundation and the Southern Environmental Law Center issued statements saying they are pleased with the judge’s ruling. The law center represents the community organizations.

“Today’s dismissal puts to rest the notion that DEQ was premature in selecting a remedy for Duke’s coal ash pollution…. and allows the case to focus instead on DEQ’s decision to require a full cleanup,” said D.J. Gerken, senior attorney at the Southern Environmental Law Center.

“Duke Energy’s coal ash should not be left covered up in unlined pits to pollute in place for generations beside our lakes and rivers and continue to put North Carolina’s communities at risk.”