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Duke Energy asks NC superior court to review ash excavation order

Duke Energy Corp. is continuing its appeal of a decision by North Carolina regulators that would require the company to excavate all of its coal ash impoundments in the state.

Duke Energy subsidiaries Duke Energy Carolinas LLC, or DEC, and Duke Energy Progress LLC, or DEP, filed petitions Oct. 9 for judicial review in Mecklenburg County Superior Court in Charlotte, N.C.

The utilities are seeking review of a final order by the North Carolina Office of Administrative Hearings that granted the North Carolina Department of Environmental Quality's partial motion to dismiss their challenge to its decisions.

Specifically, the North Carolina Department of Environmental Quality, or DEQ, issued an order April 1 requiring DEC and DEP to excavate nearly 100 million tons of coal ash from impoundments at their Belews Creek, G.G. Allen, Marshall, Mayo, Roxboro and James E. Rogers Energy Complex (Cliffside) power plants and place it in new or existing landfills. DEC and DEP were required to submit closure plans by Aug. 1.

The DEQ revised the timeline for the excavation process May 9, requiring Duke Energy to submit closure plans before Dec. 31 and submit updated corrective action plans by March 31, 2020.

The North Carolina Office of Administrative Hearings ruled Aug. 2 that the DEQ had the legal authority to select the method of closure of Duke Energy's ash basins. An administrative law judge issued the final order Sept. 11 granting DEQ's partial motion to dismiss.

"Common sense and the Coal Ash Management Act tell us that basin closure decisions should be driven by science and engineering, but NCDEQ appears to be doing all it can to ensure that doesn't happen," Duke Energy spokesperson Paige Sheehan said in an Oct. 14 email. "Instead, the regulator is backing the most expensive, disruptive and time consuming closure option for several basins — without any measurable benefit — when compared to other approaches."

Sheehan added that Duke Energy also is continuing its appeal of several legal issues through the Office of Administrative Hearings. The company said state environmental regulators did not consider cost when making their decision, and the ruling may violate federal law.