By Greg Barnes
This story has been updated.
Duke Energy says it’s too early to tell how it will respond to a state regulatory order announced Monday that requires the world’s largest electric company to excavate coal ash from pits at all of its North Carolina power plant sites.
“We are considering all options as we work to better understand the order,” Paige Sheehan, a Duke Energy spokeswoman, said in an email Tuesday.
The order by the state Department of Environmental Quality brings some resolution to residents who live near the plants and have complained for years about adverse health effects they maintain were caused by coal ash in the air and groundwater.
Bryan Brice, a Raleigh lawyer who has represented more than 1,000 residents in coal ash lawsuits against Duke Energy, said he has received numerous emails from people who are elated by the order.
“It is unspeakable joy,” said one of Brice’s clients, Deborah Graham, a citizen activist who lives within 1,000 feet of a coal ash pit in Salisbury and has a contaminated well.
Graham’s life has become consumed by her fight against Duke Energy. She said she suffers from cancer but doesn’t know whether it was caused by coal ash.
She uses Siri to count every day that she’s been fighting the power company — 1,446 — and keeps track of every meeting or function that she’s attended pertaining to contaminated water — 62 or 63.
“I have learned more about water and toxic mess than any private citizen should ever have to learn,” she said.
Now Graham and her group want to celebrate. They are planning an event this weekend, possibly in Greensboro, she said.
“We want to hug, we want to cry,” she said. “Like I said, unspeakable joy. We were just not expecting this to be.”
Duke Energy agreed to excavate the coal ash pits at eight plants after the Southern Environmental Law Center sued the company under the federal Clean Water Act several times beginning in 2013. But changes to the state’s Coal Ash Management Act in 2016 allowed Duke to gain low-risk designations for all but one of the remaining six plants.
Now, the state has decided that all of Duke Energy’s coal ash pits must be excavated.
Coal ash is the residue left after coal is burned to generate electricity. Also known as fly ash, it has been shown to contain arsenic, lead, mercury, selenium, aluminum, barium, boron, hexavalent chromium, vanadium and other toxins.
Duke stored the coal ash in basins close to rivers that are used to cool its plants. In 2014, an estimated 39,000 tons of coal ash spilled into the Dan River near Eden, leading to numerous lawsuits and the examination of coal ash pits across the state. By its own studies, Duke Energy found that coal ash has leached from unlined pits at all 14 sites and has contaminated groundwater.
Frank Holleman, a senior attorney for the Southern Environmental Law Center, applauded the state’s order to force Duke Energy to excavate the remaining sites. The big question now, Holleman said, is whether the company will abide by the order or try to “litigate and lobby” its way out.
“What the people of the state want to know is are they going to abide by this decision, or, instead, is Duke going to keep litigating and fighting, leaving these communities up in the air,” he said.
Shortly after the state announced the excavation order, Duke Energy released a statement that hinted at its intentions moving forward.
“We are making strong progress to permanently close every ash basin in North Carolina in ways that fully protect people and the environment, while keeping costs down as much as possible for our customers,” the statement read.
It further said research supports a variety of methods to close the final six sites, including capping the coal ash in place rather than excavating it. The company called that method one “appropriate solution” that would protect health and the environment. It also noted that it is consistent with how other coal ash pits are expected to be closed around the country.
The DEQ disagrees with Duke Energy’s assessment.
“DEQ rigorously reviewed the proposals, and the science points us clearly to excavation as the only way to protect public health and the environment,” DEQ Secretary Michael S. Regan said in the statement announcing the excavation order.
Under the state’s order, Duke Energy must submit final excavation closure plans to DEQ by Aug. 1. It must also propose where the coal ash will be placed and how long the process will take. By Oct. 1, DEQ will conduct a public meeting in the county or counties in which each site is located.
It’s unclear whether Duke Energy’s customers are going to be required to pay for excavation through higher utility bills.
In its statement, Duke Energy said excavating the final nine pits would add about “$4 billion to $5 billion to the current estimate of $5.6 billion for the Carolinas.”
The company warned that excavation at some sites could take decades, stretching well beyond current state and federal deadlines. It also said excavation would cost significantly more than it would to cap the coal ash under a heavy cover and soil.
Holleman said the company “greatly exaggerates” its cost estimates without taking into account the damage it has caused to the environment and to people’s health. He said the company also underestimates the cost it would incur if it simply drained and capped coal ash in the unlined pits.
Last year, the N.C. Utilities Commission allowed Duke Energy to charge ratepayers $546 million for the cost of coal ash cleanup, but it wouldn’t let the company charge for any future costs and fined it $70 million for mishandling the coal ash. State Attorney General Josh Stein says he plans to appeal the $546 million ruling.
Sheehan, the Duke spokeswoman, said Tuesday the utilities commission has determined in the past that costs should be passed on to customers, “so we would seek to recover any future expenses as well.”
Holleman noted that neighboring Virginia and South Carolina have made utility companies in those states excavate all of their coal ash pits. In South Carolina, he said, the work is almost complete and utility rates have not increased.
On Tuesday, a group of Democratic lawmakers introduced a “Polluter Pays” bill aimed at Duke, that would forbid a company with coal ash reserves from charging ratepayers to cover the costs of cleanup and would also give the DEQ secretary the power to issue fines.
In North Carolina, excavation could take decades if lawsuits are allowed to drag on, he said.
One such lawsuit against Duke Energy was settled last month, when 33 residents living near the Dan River spill were awarded an undisclosed amount of money. Brice was among the lawyers involved in that suit.
The six plant sites involved in the DEQ order are Allen, Belews, Cliffside/Rogers, Marshall, Mayo and Roxboro.