RALEIGH — Duke Energy is asking the state court system to overturn a recent administrative ruling that sided with government regulators in a dispute over coal-ash cleanup at the Belews Creek Steam Station and five other North Carolina power plants.
The Charlotte-based utility asked the Superior Court of Mecklenburg County this week to scrap a decision by the state Office of Administrative Hearings that upheld regulators' authority to make Duke Energy dig up all coal ash at Belews Creek, near Walnut Cove, and the other plants for reburial in lined landfills.
Duke Energy wants to consider leaving some or all of the coal ash in its current resting places at the six plants, then cover the discarded waste with impenetrable caps that it says provide the same or similar margins of safety as a landfill.
Duke Energy contends that "capping in place" is several times less costly than excavation and landfill disposal, while also avoiding air pollution from heavy trucks carrying the waste to its final destination.
But state regulators and outspoken residents near the plants claim the landfill option provides greater protection for the environment — especially when it comes to groundwater, lakes and streams.
Lawyers for Duke Energy filed notice of their latest legal maneuver with the hearing office in Raleigh on Thursday, the same day they also petitioned for Superior Court review in Charlotte.
At issue is a recent ruling by Administrative Law Judge Selina Malherbe, also based in Charlotte, that the state Department of Environmental Quality did not overreach this spring when it ordered excavation and landfill disposal for coal ash at Belews Creek and the other five plants that state environmental officials have classified as "low risk."
The utility hopes to persuade a Superior Court judge that Malherbe erred in her finding that DEQ's April 1 decision did not run afoul of North Carolina's Coal Ash Management Act of 2014.
The General Assembly enacted the coal-ash law after a massive spill five years ago from a storage pond at the now-demolished Dan River Steam Station near Eden — a higher-risk site that is not involved in the pending appeal.
The Coal Ash Management Act mandated the elimination by January 2030 of all such storage basins statewide. Also known as "impoundments," the basins held submerged coal ash for decades near Belews Creek, Dan River and 12 other active or retired Duke Energy plants powered by coal.
"DEQ classified all of the ash basins at issue in this case as 'low risk,'" Duke Energy attorney Christopher W. Jones said in Thursday's court petition. "(The Coal Ash Management Act) does not require excavation for low-risk impoundments.
"For low-risk impoundments, (the Coal Ash Management Act) allows Duke Energy to submit a proposed plan using any closure method as long as the closure plan demonstrates it is protective of public health, safety and welfare, the environment and natural resources."
Environmentalists and many residents living near Belews Creek and other plants involved in the dispute have long pushed for draining the storage ponds, digging up all the ash and then burying it in a lined landfill to prevent further pollution.
In addition to Belews Creek, about 30 miles northwest of Greensboro, other 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.
The former Dan River site in Rockingham County is not involved because landfill disposal is nearing completion there. As a site considered at higher risk for calamity, landfill disposal was the only option considered there.
In fact, Duke Energy has completely removed all the coal ash from Dan River's former storage basin and elsewhere on the property, company spokeswoman Meredith Archie said.
"We have completed ash excavation and are transitioning to final closure of the lined landfill," she said.
But it's a different story at Belews Creek where, pending the outcome of its appeal, Duke Energy has limited its coal-ash removal to what would be necessary whichever way the dispute ends, Archie said.
She said that at the Stokes County site the utility has made "tremendous progress on closure activities that would be required under either excavation or closure-in-place, such as beginning the safe removal of the Belews Creek ash basin pond."
She said those efforts followed $146.7 million in improvements to ash-related technology at the Belews Creek plant that also is now "being converted to have the capability to burn both natural gas and coal."
The current impasse between Duke Energy and DEQ dates back to April when, after several years of research and analysis, the state entity determined that excavating the ash at all 14 current or former coal-fired plants in North Carolina — regardless of risk rating — was the best way to go.
"DEQ rigorously reviewed the proposals, and science points us clearly to excavation as the only way to protect public health and the environment," DEQ secretary Michael Regan said at the time.
Duke Energy immediately appealed that decision to the Office of Administrative Hearings, the first step in challenging such regulatory actions by a state agency.
Malherbe made headlines in early August when she granted a DEQ request to partially dismiss that appeal on grounds that undermined much of Duke Energy's basic argument.
Malherbe refined her initial ruling in two, subsequent updates and Duke Energy is appealing the final version she signed last month.
Among other things, Duke Energy differs with Malherbe's finding that DEQ had not erred by "electing a closure method" for all sites and reaching that decision before Duke Energy could submit its completed recommendations for each site.
Duke Energy also contends the administrative judge wrongly approved both the "comparative" method DEQ used to make its final decision and the agency's understanding that the Coal Ash Management Act requires all coal-ash closure plans to be fully implemented by Dec. 31, 2029.
Duke Energy's lawyers argue that under the Coal Ash Management Act, state regulators are limited to making sure only that the utility's coal ash plans are "protective" of public health, welfare and the environment.
"It is not an exercise in divining the most protective plan imaginable," they asserted in one recent filing with the hearing office. "Because DEQ used the wrong procedure and then applied the wrong standards, its April 1, 2019 determination must be vacated."