A court case about the practice of burying coal ash in old clay mines is dragging on into its fifth year, raising questions about where Duke will deposit some of its 80 million tons of the material.
Charah/Green Meadow is asking a Mecklenburg Superior Court judge to reverse a decision issued last month by the Office of Administrative Hearings that prohibits coal ash from being deposited in unexcavated areas of old clay mines.
In court documents filed on Dec. 27, Charah attorneys argued that Administrative Law Judge Melissa Lassiter wrongly invalidated state permits that had allowed the company to deposit coal ash in these areas of the old Brickhaven Mine. The 7.2 million tons of ash — encompassing 5.1 million cubic yards — were used as structural fill in both the excavated areas and in new portions of the mine, which is near Moncure in Chatham County.
The NC Department of Environmental Quality had issued the permits to the Kentucky-based company in 2015. The ash came from Duke Energy’s Sutton and Riverbend plants as part of the utility’s full excavation of unlined ash basins. However, Duke Energy is not part of Charah’s lawsuit. DEQ has not filed an appeal.
Lassiter’s ruling also covered the Colon Mine in Lee County, but no ash has been deposited there.
Charah disputed Lassiter’s interpretation of the Coal Ash Management Act. State lawmakers passed CAMA, as it’s known, in 2014, after the Dan River disaster, and amended it in 2016. CAMA was intended to prevent Duke or any public utility from building new — or expanding the existing — unlined coal ash basins or impoundments in North Carolina. Since the structural fill is in a lined cell, and Charah is not a public utility, the company argued that its activities at Brickhaven are not violating the act.
Charah also objected to Lassiter’s analysis of the Brickhaven engineering plans. Lassiter wrote in her ruling that the height of the ash could reach 260 to 320 feet. Charah “failed to justify how the reclaimed land at those heights was a reasonable rehabilitation of the land,” Lassiter wrote.
But that elevation, Charah said, is not above the surface of the ground, but above mean sea level. Although mean sea level varies within the counties, in Sanford it is 358 feet. Moncure lies 217 feet above mean sea level.
The fill sites are lined, although groundwater monitoring from last summer indicated that several contaminants exceeded state standards: barium, chloride, chromium, cobalt, vanadium and total dissolved solids. Known as TDS, total dissolved solids are a general indicator of water quality.
Seven of the eight monitoring wells detected exceedances. Levels of chromium peaked at 17 times the state groundwater standard; cobalt levels were more than six times higher. Vanadium concentrations ranged from 25 to 45 times higher than state standards.
The case began shortly after DEQ issued the permits, in June 2015. Within a month, the Blue Ridge Environmental Defense League, Chatham Citizens Against Coal Ash Dump and Environmentalee had filed a contested case with the Office of Administrative Hearings against the NC Department of Environmental Quality over the permits.
The groups argued that since Charah was putting the material in unexcavated areas, those portions of the mine were tantamount to landfills. In that case, the groups said, the unexcavated areas should be considered solid waste landfills, which operate under stricter regulations.
Originally Lassiter dismissed the case. But since then, DEQ, Charah and environmental groups have filed a series of appeals, culminating in the state Appellate Court sending the case back to the OAH. This time, Lassiter reversed herself.
Therese Vick, research director for the Blue Ridge Environmental Defense League, told Policy Watch that Duke should not move its ash offsite, but place it instead in above-ground storage on utility property. “Charah needs to leave these communities alone,” she said, adding she’s still waiting for additional information from state regulators. “DEQ needs to answer the questions we’ve asked regarding keeping the Brickhaven permit open, and any proposed permit modifications.”
While the ruling focused on Brickhaven and Colon, it could have far-reaching ramifications in Duke’s massive coal ash cleanup. If unexcavated areas of clay mines are off-limits, that could reduce the available acreage for the utility to place the 80 million tons of ash, required under a recent settlement with state regulators and environmental groups.
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