Duke Energy plans to appeal North Carolina regulators' decision that would require the utility to excavate all its coal ash ponds in the state, it announced Thursday.
The North Carolina Department of Environmental Quality (DEQ) last week ordered closure and full excavation of all Duke's coal ash ponds, after "rigorous scientific review" and public input. The utility said that decision "lacked full consideration of the science and engineering" which it plans to detail in its appeal before the North Carolina Office of Administrative Hearings "in the near future."
Duke has estimated the cost of a full excavation would add $4-5 billion to the utility's estimated $5.6 billion clean up and said the DEQ's order "would impose a financial burden on our customers and the economy of the Carolinas through the most expensive and disruptive closure option possible." Following the DEQ's order and the utility's cost estimates, Democratic state legislators filed a bill that would prevent Duke from passing those costs onto ratepayers.
Utilities have long maintained that cap-in-place closure methods are effective and safe ways to store coal ash, but as ground monitoring reports reveal high levels of contamination at the majority of coal plants across the country, pressure is mounting for utilities to find a storage alternative.
In March, Virginia Gov. Ralph Northam signed into law a similar directive to the DEQ's — it requires Dominion Energy to completely excavate all its coal ash, recycling at least a quarter of it. The utility said it was supportive of the measure which "accomplishes clean closure, minimizes truck traffic, and prudently manages customer costs for the closing of ash ponds at our power stations."
But Duke is planning to resist regulators' orders.
"I was surprised" that the utility filed an appeal, Frank Holleman, senior attorney at the Southern Environmental Law Center told Utility Dive.
"This is the process Duke Energy wanted," he said. "They had every opportunity to submit every piece of information they wanted to. It was obvious from the data what needed to be done. … The public was unanimous that this ash needs to be removed. And now we have the North Carolina [DEQ] and the Governor of North Carolina agreeing that Duke Energy needs to excavate this coal ash."
The utility's battle with regulators began after 39,000 tons of coal ash spilled from the utility's Dan River plant in 2014. Duke pled guilty to nine violations of the Clean Water Act and is in the last year of the five year probation.
Bipartisan lawmakers then passed the Coal Ash Management Act, which was amended in 2016 to direct the DEQ to determine whether the utility's coal ash ponds were sufficiently protective of the areas they were sited on.
Now, Duke is saying the department's evaluation is flawed, pointing out that the basins are classified as "low risk" by the state.
"That's purely a bureaucratic term," said Holleman. "It has nothing to do with whether these sites are polluting the nearby rivers, whether they're harming communities, where they're contaminating groundwater and how they will operate in the future."
In November, the utility released federally mandated filings which found 24 of its 26 coal plant sites were in violation of one or more federal rules regulating storage of the toxic contaminants. The two sites in compliance had already been fully excavated.
Fourteen of those sites are in North Carolina, the utility's home state, and eight had already been slated for excavation. The remaining six sites include the Allen Plant ponds, which were named the second most polluted in the country in a national coal ash report.